COURT OF APPEAL FOR ONTARIO

CITATION: Participating Nursing Homes v.
    Ontario
Nurses Association, 2021 ONCA 149

DATE: 20210309

DOCKET:
C67496

Strathy C.J.O., Benotto, Brown,
    Huscroft and Zarnett JJ.A.

BETWEEN

Participating Nursing Homes

Applicants (Appellants)

and

Ontario Nurses Association

Respondent (Respondent)

and

Service Employees International
    Union, Local 1

Respondent (Respondent)

David M. Golden and Marco P. Falco, for
    the appellants Participating Nursing Homes

Paul J.J. Cavalluzzo, Adrienne Telford
    and Lara Koerner Yeo, for the respondent Service Employees International Union,
    Local 1

Janet Borowy, Danielle Bisnar, and Andrea
    Sobko, for the respondent Ontario Nurses Association

Lindsay Lawrence and Aaron Hart, for
    the respondent, the Pay Equity Hearings Tribunal

Fay Faraday, for the intervener, the
    Equal Pay Coalition

Heard: October 6 and 7, 2020 by video
    conference

On appeal from the judgment of the
    Divisional Court (Regional Senior Judge Geoffrey B. Morawetz and Justices Robbie
    Gordon and Nancy L. Backhouse), dated April 30, 2019, with reasons reported at
    2019 ONSC 2772, affirming in part a decision of the Pay Equity Hearings
    Tribunal, dated January 21, 2016, with reasons reported at [2016] O.P.E.D. No.
    5.

Benotto J.A.
:

[1]

The Participating Nursing Homes (PNH) appeal
    the decision of the Divisional Court upholding, in part, a decision of the Pay
    Equity Hearings Tribunal. The Tribunal directed the parties to negotiate a gender-neutral
    comparison system (GNCS) for maintaining pay equity. The PNH seek a
    declaration that the
Pay Equity Act
, R.S.O. 1990, c. P.7 (the
Act
) does not require them to further
    negotiate their maintenance obligation with the respondents by tying the
    maintenance obligation to how the proxy employer historically valued male
    jobs in its establishment in 1994. For the following reasons  to be read with
    the companion appeal released concurrently  I would dismiss the appeal.

BACKGROUND

[2]

The PNH are employers who operate up to 143
    nursing homes in Ontario. The
Ontario
    Nurses Association (ONA) is the bargaining agent representing about 2,100
    registered nurses and allied health professionals working at nursing homes
    across the province. The Service Employees International Union, Local 1
    (SEIU) is the bargaining agent representing a range of health care workers at
    the PNH, including registered practical nurses, personal support workers,
    health care aides, and dietary, housekeeping, and recreational aides.
    (Collectively, the ONA and the SEIU are referred to as the Unions.)

[3]

Employment in the nursing home sector is
    predominantly female. Consequently, the proxy methodology for establishing pay
    equity in applies. The proxy method involves a comparison between a key female
    job class in one employers establishment and an analogous female job class in
    a different (proxy) employers establishment where pay equity has already
    been established by way of comparison with a male job class.

[4]

The female job class from the proxy employer is
    valued pursuant to a GNCS and the relationship between value and compensation
    is thus determined. Pay equity is achieved for the key female job class by
    adjusting its compensation so that the same value/compensation relationship
    exists for both the key female job class and the proxy female job class. Pay
    equity is then achieved for the rest of the seeking employers job classes by
    comparison to the key female job classes.

[5]

The
Act
requires every seeking employer to prepare a pay equity plan including a
    description of the GNCS used for the purposes of making the comparisons.

[6]

In 1995, the PNH and the Unions
    negotiated and executed a pay equity plan for the entire nursing home sector
    using as the proxy employer Unionized Municipal Homes for the Aged Across
    Ontario (Municipal Homes) and designating health care aides as the seeking
    employers key female job class and the proxy female job class. They agreed
    that a total weighted average adjustment of $1.50 per hour would achieve pay
    equity for the health care aides in the employ of the PNH and agreed upon a
    schedule for implementing the required increase for all job classes. The
    parties did not agree on a GNCS and did not use a GNCS to evaluate job classes
    in the PNH and proxy female job classes. The various adjustments contemplated
    by the pay equity plan were implemented, and by 2005 pay equity had been established.

[7]

The issue then became how to maintain pay equity
    as required by the Act.

[8]

The Tribunal directed that the parties negotiate
    a GNCS for these reasons:

Although the $1.50 Plan may have achieved pay
    equity, it did so without applying a GNCS.  So long as the skill, effort,
    responsibility and working conditions of the female job classes in the Homes
    remained unchanged, and they received the same percentage compensation
    increases, the absence of a GNCS had no impact on pay equity
    maintenance.  We have already referred to the uncontradicted evidence
    before us that there have been significant changes in the clientele and the
    duties performed in the Homes that may well impact on the value of the job
    classes.  Those changes make the $1.50 Plan inappropriate because the pay
    equity consequence of them can only be ascertained by evaluating the job
    information using a GNCS, which the Proxy Plans lack.  In the unionized
    environment the selection of a GNCS and its application are matters that the
Act
contemplates will be negotiated between the employer and the
    union.

Pursuant to our
    authority under
section
    25(2)
(g) of the
Act
, the parties are directed to negotiate and endeavor to agree on an
    amendment to the $1.50 Plan to stipulate a GNCS, and to apply that GNCS to
    determine whether any maintenance adjustments are required.

[9]

The Tribunals decision was upheld by the
    Divisional Court.

[10]

The PNH submit that the Tribunals decision was
    unreasonable because it will
forever
require the PNHs to base their
    pay equity compensation on another employer.

[11]

I disagree.

[12]

First, the Tribunal clearly has the authority to
    require compliance with the Act. A GNCS was neither negotiated nor applied as
    part of the 1995 proxy comparison process. The parties accordingly did not
    determine the gender-neutral value of the work performed by the female job
    classes at either the PNH or Municipal Homes. It was the obligation of the
    employer to prepare a pay equity plan in compliance with the
Act
. It did not do so, and it was within the Tribunals power to
    direct it to comply. Section 25(2)(g) provides that the Tribunal
may order a party to a proceeding to take such action or refrain from
    such action as in the opinion of the Hearings Tribunal is required in the
    circumstances.

[13]

Second, for the reasons set out in the companion appeal, the object of
    the Act requires ongoing comparison to men. When there are insufficient men in
    the establishment, there is reference to another employer. That is how the
    proxy method works
. The matter was remitted to the
    Tribunal to specify what procedures should be used to ensure that the
    respondents who have established pay equity through the proxy method will
    continue to have access to male comparators to maintain pay equity. I would
    direct that
the parties comply with the Tribunals
    direction, to negotiate a GNCS and determine whether any maintenance
    adjustments are required, in conjunction with the procedures specified by the
    Tribunal as a result of the decision in the companion appeal.

[14]

I would dismiss the appeal and invite submissions as to costs (limited
    to 5 pages) within 15 days of the release of this decision.

M.L.
    Benotto J.A.

I
    agree David Brown J.A.

I
    agree B. Zarnett J.A.

Huscroft J.A.
    (Concurring):

[15]

I conclude that the Tribunal's decision is
    reasonable as a whole, including the order that the parties negotiate a GNCS. I
    would dismiss the appeal for the reasons set out in the companion appeal.

Released: March 09, 2021       GRS

Grant Huscroft J.A.

I agree G.R. Strathy C.J.O.


COURT OF APPEAL FOR ONTARIO

CITATION: Patterson v. Patterson, 2021 ONCA
    70

DATE: 20210201

DOCKET: M51853 (C68604)

Roberts, Zarnett and Sossin
    JJ.A.

BETWEEN

William Harold Patterson

Applicant/Moving Party

(Respondent)

and

Sarah Anne Elizabeth Patterson, in her
    personal capacity and in her

capacity as the personal representative
    of the Estate of Sheila Patsy Patterson,

and Donald David Oral Patterson Jr.

Respondent/Responding Parties

(Appellants)

Carol Craig, for the
    appellants

Taayo Simmonds, for the
    respondent

Heard: January 27, 2021 by video
    conference

REASONS FOR
    DECISION

[1]

The parties bring the following motions: 1) the
    respondent seeks to quash the appellants appeal, as their notice of appeal was
    served approximately 37 minutes late, and to extend the time for the service
    and filing of his notice of cross-appeal to vary the order under appeal to
    provide for leave to bring his passing of accounts application; and 2) the
    appellants, in their responding factum, move to extend the time for the service
    of their notice of appeal.

[2]

These motions arise out of the appellants
    appeal from the order of Justice Brian W. Abrams, dated July 23, 2020, requiring
    them, among other things, to pass their accounts for the period of time they
    served as the attorneys for property for the late Sheila Patterson. The
    appellants are respectively the son and granddaughter of Mrs. Patterson. The
    granddaughter served as estate trustee for the estate of Mrs. Patterson. They
    both exercised powers of attorney for Mrs. Patterson during her lifetime. The
    respondent is also her son. Over the past several years, the parties have been
    embroiled in high conflict litigation over Mrs. Pattersons modest estate.

[3]

As context for the motions, one of the appellants
    principal grounds of appeal is their argument that the motion judge erred by
    failing to address the leave requirement for the respondents passing of
    accounts application under s. 42(4)(6) of the
Substitute Decisions Act,
    1992
, S.O. 1992, c. 30.

[4]

We turn first to the respondents motion to extend
    the time for the service and filing of his cross-appeal. In our view, the justice
    of the case warrants the requested extension:
Rizzi v. Mavros
, 2007
    ONCA 350, 85 O.R. (3d) 401, at para. 16. The issue of leave is the appellants
    principal focus of their appeal. The respondent requests that this court
    dismiss the appeal and grant an order varying the motion judges order to
    explicitly state leave was granted. The appellants do not consent to the
    variance sought nor agree that the respondent can seek that relief without a
    cross-appeal. He is therefore required to bring a cross-appeal to seek this relief
    in accordance with r. 61.07(1)(a) of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194, which indicates that a respondent who seeks to vary the
    order appealed from must serve a notice of cross-appeal.

[5]

We do not accept the appellants submissions
    that the cross-appeal will require any duplication or cause prejudice because
    the respondent can incorporate his submissions on the leave issue in his responding
    factum and any necessary materials into his responding compendium on the appellants
    appeal. Under r. 61.12(6)(b) of the
Rules of Civil Procedure
, the
    appellants are entitled to file a factum as respondents to the cross-appeal.

[6]

The respondent did not press his motion to quash
    in oral submissions, given the responding materials filed by the appellant. It
    is not in the interests of justice to quash the appeal. The cited breach was
    technical and caused no prejudice. The notice of appeal was served only about
    37 minutes late, the appellants appeal materials were accepted for filing by
    this court, and the respondent made no complaint about the timeliness of
    service until over a month later, when the appellants refused their consent to
    the filing of his cross-appeal.

Disposition

[7]

We therefore allow the respondents motion to
    extend the time for the filing of his cross-appeal to February 3, 2021, the
    date requested by the respondent.

[8]

Given our disposition of the respondents
    motions, it is not necessary for us to consider the appellants request for an
    extension of time, which we therefore dismiss.

[9]

In accordance with the parties agreement, the
    costs of these motions are reserved to the panel hearing the appeal and the cross-appeal.

L.B.
    Roberts J.A.

B. Zarnett
    J.A.

Sossin
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Paulpillai Estate v. Yusuf, 2021 ONCA 196

DATE: 20210329

DOCKET: M51881 (C68024)

Doherty, Hoy and Jamal JJ.A.

BETWEEN

Theresa Yogaranie Paulpillai in her
    capacity as the Estate Trustee for the Estate of Richmond Gabriel Paulpillai,
    Theresa Yogaranie Paulpillai

and Maneharran Paulpillai

Applicants/Respondents

(Responding Parties)

and

Joshua Akanni Yusuf, Meerc Inc.
,
    All Saints University Limited,

All Saints University School of
    Medicine Limited, Avonelle Pinard, David Bruney,

Frankie Bellot and Medical Education
    Examination Resource Center

Respondents/Appellants

(
Moving Parties
)

Osborne G. Barnwell, for the moving parties

Edwin G. Upenieks and Angela H. Kwok, for the responding
    parties

Heard: in writing

COSTS ENDORSEMENT

[1]

The parties have agreed that costs of this motion in the amount of
    $5,000.00 shall be payable by the Respondents/Appellants (Moving Parties on
    M51881), Joshua Akanni Yusuf, Meerc Inc., All Saints University School of
    Medicine Limited, Avonelle Pinard, David Bruney, Frankie Bellot, and Medical
    Education Examination Resource Center, to the Applicants/Respondents
    (Responding Parties on M51881) by April 26, 2021. We so order.

Doherty J.A.

Alexandra Hoy J.A.

M. Jamal J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Pearce v. Canada (Staff of the
    Non-Public Funds, Canadian Forces), 2021 ONCA 65

DATE: 20210203

DOCKET: C68070

Strathy C.J.O., Rouleau and
    Coroza JJ.A.

BETWEEN

Bryan Pearce

Plaintiff
(Respondent)

and

Her Majesty the Queen in Right
    of Canada as represented by the Staff of the Non-Public Funds, Canadian Forces

Defendant
(Appellant)

Alexander M. Gay and Alexandra Pullano,
    for the appellant

Andrew Montague-Reinholdt, for the respondent

Heard: November 24, 2020 by video conference

On appeal from the order and judgment of
    Justice Heather J. Williams of the Superior Court of Justice, dated January 24,
    2020.

Strathy C.J.O.:

[1]

This appeal raises a single issue concerning the
    interpretation of s. 236 of the
Federal Public Sector Labour Relations Act
,
    S.C. 2003, c. 22, s. 2 (
FPSLRA
): does the expression, termination
    of employment for any reason that does not relate to a breach of discipline or
    misconduct in ss. 236(3), include the common law concept of constructive
    dismissal?

[2]

The motion judge held that it does, and allowed
    the respondent, who was employed by a federal separate agency, to pursue his
    claim for constructive dismissal in the Superior Court.

[3]

Section 236 of the
FPSLRA
provides:

236(1) The right of an employee to
    seek redress by way of grievance for any dispute relating to his or her terms
    or conditions of employment is in lieu of any right of action that the employee
    may have in relation to any act or omission giving rise to the dispute.

(2) Subsection (1) applies whether
    or not the employee avails himself or herself of the right to present a
    grievance in any particular case and whether or not the grievance could be
    referred to adjudication.

(3) Subsection (1) does not apply in
    respect of an
employee of a separate agency
that
    has not been designated under subsection 209(3)
if the
    dispute relates to his or her termination of employment for any reason that
    does not relate to a breach of discipline or misconduct
. [Emphasis added.]

[4]

The motion judge found that the exception in ss.
    236(3) means that ss. 236(1) and (2) do not preclude the respondents action
    against the appellant, his former employer. She dismissed the appellants
    motion to dismiss the respondents action for want of jurisdiction.

[5]

For the reasons that follow, I agree, and would
    dismiss the appeal.

I.

Factual background

[6]

The respondent was a non-unionized, 18-year
    employee of a federal public service entity, the appellant, the Staff of the Non-Public
    Funds (SNPF), Canadian Forces. SNPF is a separate agency within the meaning
    of ss. 236(3) in the
FPSLRA
. Its operating name is the Canadian Forces
    Morale and Welfare Services. The respondents last position was arena and
    outdoor facility manager at the Canadian Forces Base Trenton.

[7]

The respondent quit his job in 2017. In 2018, he
    commenced a civil action against the appellant, claiming he had been constructively
    dismissed. He pleaded that, for many years, he was the object of bullying and
    intimidation by his supervisor, and as a result, he suffered from work-related
    stress, depression, and insomnia.

[8]

In 2009, the respondent brought a grievance, alleging
    that he had been harassed by his supervisor over persistent and largely
    unfounded allegations of wrongdoing against him. He alleged that although his grievance
    was resolved, his position was downgraded, and some of his responsibilities were
    taken away from him. In 2014, his department was reorganized, and he was
    required to report to a more junior individual. He claimed that his former
    supervisor continued to harass him. In March 2017, he initiated another
    grievance for harassment.

[9]

The respondent pleads that he went on medical
    leave from March to May 2017, due to mental health issues arising from the
    toxic work environment created by [his former supervisor] and permitted by his
    employer. Although he returned from this leave in June 2017, he resigned that
    same month due to the allegedly toxic work environment. He pleads that his
    resignation was involuntary, and that he was constructively dismissed. He claims
    damages for constructive dismissal, equivalent to 24 months salary and
    benefits in lieu of notice, as well as moral damages for breach of the duty of
    good faith and fair dealing, and punitive damages.

[10]

The appellant, his employer, brought a motion pursuant to r.
    21.01(3)(a) of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194, to
    dismiss the action. The appellant alleged that the respondents terms and
    conditions of employment were governed by the human resources policies of the SNPF,
    the
Financial Administration Act
, R.S.C. 1985, c. F-11 (
FAA
)
    and the
FPSLRA
. The appellant asserted that the respondent had
    voluntarily resigned from his position, and that the court had no jurisdiction
    to hear the constructive dismissal claim of a federal government employee. It
    said that the appropriate recourse for the respondent was the grievance process
    set out under the
FPSLRA
.

[11]

The motion judge dismissed the motion, permitting the respondents
    action to proceed. The respondents employer, SNPF, appeals.

II.

the statutory context

[12]

In order to give context for the motion judges reasons and the
    parties submissions, I will provide an overview of the federal public sector
    labour relations regime, both in general, and as it relates to employees like
    the respondent who are employed by a separate agency.

(1)

The
FAA
:
    Core public administration and separate agencies

[13]

Employees in the federal public service are governed by a
    comprehensive scheme that includes statutes, regulations, collective agreements
    (in the case of unionized employees), and other governmental directives:
Bron
    v. Canada (Attorney General)
, 2010 ONCA 71, 99 O.R. (3d) 749, at para. 13,
    citing
Vaughan v. Canada
, 2005 SCC 11, [2005] 1 S.C.R. 146, at para. 1.

[14]

The
FAA
is part of that comprehensive scheme. It is
    described as [a]n Act to provide for the financial administration of the
    Government of Canada, the establishment and maintenance of the accounts of
    Canada and the control of Crown corporations. Subsection 11(1) of the
FAA
defines public service by distinguishing between the core public
    administration of Canada and other parts of the federal administration, on the
    one hand, and separate agencies identified in Schedule V and other designated
    parts of the federal public administration, on the other hand.

[15]

The core public administration includes departments of the federal
    public service and various agencies, boards, and commissions listed in Schedule
    I and Schedule IV of the
FAA
. Separate agencies, like the SNPF, are the
    agencies, boards, and commissions listed under Schedule V to the
FAA
.
    The Governor in Council has the ability to move a particular agency, board, or
    commission from Schedule IV to Schedule V and vice versa: see Christopher
    Rootham,
Labour and Employment Law in the Federal Public Service
,
    (Ottawa: Irwin Law, 2007), at pp. 55-56. Schedule III of the
FAA
governs Crown corporations, which are not subject to the
FPSLRA
.

[16]

The distinction between the core public administration and separate
    agencies is important in this case because the SNPF is a separate agency. Each
    separate agency has independent status as an employer: Rootham, at p. 58. Other
    separate agencies include the National Capital Commission, the National Film
    Board, the National Research Council, and the Parks Canada Agency. Employees in
    the core public administration, by contrast, are employed by the Treasury
    Board as the delegate of her Majesty in Right of Canada: Rootham, at p. 57.

[17]

There is a sub-class of separate agencies, referred to as
    designated separate agencies, because they have been designated by the
    Governor in Council under ss. 209(3) of the
FPSLRA
. There are, at
    present, only two such agencies, the Canada Revenue Agency and the Canada Food
    Inspection Agency:
Federal Public Sector Labour Relations Act Separate
    Agency Designation Order
, SOR/2005-59.

[18]

Counsel agreed that in establishing separate agencies, Parliament
    intended them to be more nimble than the core public administration,
    operating like the private sector with respect to their labour relations, and
    giving them greater flexibility in hiring and firing.

[19]

As an employee of a separate agency that had not been designated
    by the Governor in Council under ss. 209(3) of the
FPSLRA
, the
    respondent was a member of a unique class of federal public servants entitled
    to sue their employer in court pursuant to ss. 236(3) if the dispute relates
    to his or her termination of employment for any reason that does not relate to
    a breach of discipline or misconduct.

[20]

Subsection 12(2) of the
FAA
states that, subject to any
    terms and conditions directed by the Governor in Council, the deputy head of
    a separate agency (usually the chief executive officer), may, among other
    things: establish standards of discipline and set penalties, including
    termination of employment, suspension, demotion to a lower position, or
    financial penalties; and effectuate the termination of employment or demotion to
    a lower position for reasons other than breaches of discipline or misconduct. Subsection
    12(3), which applies to both separate agencies and the core public
    administration, provides that any such disciplinary action, termination of
    employment, or demotion may only be for cause.

(2)

The
FPSLRA

[21]

The
FPSLRA
deals comprehensively with labour relations in
    the federal public service. The preamble to the statute expresses the
    commitment of the Government of Canada to the fair, credible, and efficient
    resolution of matters arising in respect of terms and conditions of employment.
    Section 12 provides for the administration of the statute by the Federal Public
    Sector Labour Relations and Employment Board (the Board). Section 13 provides
    that the Board is to adjudicate certain applications, disputes, and grievances.

[22]

Under ss. 208(1) and 236(1) of the
FPSLRA
, employees of the
    federal public service, including employees of separate agencies, are required
    to follow a grievance process if they are aggrieved by the interpretation or
    application of any statute, regulation, direction, or other instrument made or
    issued by the employer, that deals with terms and conditions of employment (ss.
    208(1)(a)(i)), or as a result of any occurrence or matter affecting the terms
    and conditions of their employment (ss. 208(1)(b)). The grievance process is internal,
    and management personnel determine the merits of the grievance:
Bron
, at
    para. 14.

[23]

Employees in the public service who have pursued a grievance up to
    the final level of the grievance process and are not satisfied with the
    outcome, are entitled, in certain circumstances, to refer the dispute to
    adjudication by the Board. However, the path an employee may follow if the
    grievance is not successful, depends on the nature of the grievance and whether
    the employee is part of the core public administration, a designated separate
    agency, or an undesignated separate agency.

[24]

Those paths are set out in ss. 209(1), which provides:

209 (1) An employee who is not a
member
as defined in subsection 2(1) of the
Royal Canadian Mounted Police Act
may refer to adjudication an individual grievance that has been presented up to
    and including the final level in the grievance process and that has not been
    dealt with to the employees satisfaction if the grievance is related to

(a) the interpretation or
    application in respect of the employee of a provision of a collective agreement
    or an arbitral award;

(b) a disciplinary action resulting
    in termination, demotion, suspension or financial penalty;

(c) in the case of an employee in
    the core public administration,

(i) demotion or termination under
    paragraph 12(1)(d) of the
Financial Administration Act
for
    unsatisfactory performance or under paragraph 12(1)(e) of that Act for any
    other reason that does not relate to a breach of discipline or misconduct, or

(ii) deployment under the
Public
    Service Employment Act
without the employees consent where consent is
    required; or

(d) in the case of an employee of a
    separate agency designated under subsection (3), demotion or termination for
    any reason that does not relate to a breach of discipline or misconduct.

(2) Before referring an individual
    grievance related to matters referred to in paragraph (1)(a), the employee must
    obtain the approval of his or her bargaining agent to represent him or her in
    the adjudication proceedings.

(3) The Governor in Council may, by
    order, designate any separate agency for the purposes of paragraph (1)(d).

[25]

In summary, all public sector employees are entitled to adjudication
    by the Board where their grievance is related to: (a) the interpretation or
    application of a collective agreement or arbitration award (ss. 209(1)(a)); or
    (b) disciplinary action resulting in termination, demotion, suspension or
    financial penalty (ss. 209(1)(b)). Employees in the core public administration
    are also entitled to refer the dispute to adjudication if their demotion or
    termination was for unsatisfactory performance or any other reason that does
    not relate to a breach of discipline or misconduct: ss. 209(1)(c). Thus,
    employees in the core public administration are entitled to refer to
    adjudication a grievance, relating to the termination of their employment,
    regardless of whether the reason for their termination was disciplinary or
    non-disciplinary.

[26]

Employees of separate agencies, however, can only have their
    grievances referred to adjudication in limited circumstances. Employees of separate
    agencies that have been designated by the Governor in Council, under ss. 209(3)
    of the
FPSLRA
, may
    refer their dispute to adjudication if their demotion or termination was for
    any reason that does not relate to a breach of discipline or misconduct: ss.
    209(1)(d). Employees of undesignated separate agencies, like SNPF, can only
    refer their grievance to adjudication by the Board if it relates to the
    interpretation or application of a collective agreement or arbitration award;
    or if it relates to a disciplinary action resulting in termination, demotion,
    suspension or financial penalty: ss. 209(1)(a) and (b).
The statutory adjudication process is not available for
    non-disciplinary terminations of employees of separate agencies that have not
    been designated under ss. 209(3). Those employees are not precluded from access
    to the courts if they have been terminated for a reason that does
not
relate to a breach of discipline or misconduct: ss.
    236(3). Whereas employees in the core public administration are able to pursue
    both disciplinary and non-disciplinary terminations by adjudication, employees
    of undesignated separate agencies have access to the courts for the latter.

[27]

The result is that undesignated separate agencies have greater
    flexibility to terminate employees for non-disciplinary reasons because they
    are not subject to a statutory adjudication process that may result in the
    re-instatement of the employee.

[28]

Section 214 of the
FPSLRA
provides that, except in those
    cases that may be referred to adjudication under s. 209, the decision on the
    grievance taken at the final level in the grievance process is final and
    binding for all purposes of this Act and no further action under this Act may
    be taken on it.

[29]

Thus, the process available to employees of separate agencies, like
    the respondent, differs from that available to employees in the core public administration.
    Employees in the core public administration and employees of designated
    separate agencies, covered by ss. 236(1) and (2), have no right of action in
    the courts in relation to disciplinary and non-disciplinary terminations. Their
    right is to proceed to grievance and, in some cases, to have the matter
    referred to adjudication by the Board.

[30]

Subsection 236(3), on the other hand, gives employees of separate
    agencies, other than those designated under ss. 209(3), the right to sue if
    the dispute relates to his or her termination of employment for any reason that
    does not relate to a breach of discipline or misconduct.

[31]

There is no dispute that the appellant, the SNPF, was
not
a separate agency that had been designated under ss.
    209(3).

(3)

SNPF grievance policies

[32]

In addition to being subject to the foregoing statutory scheme, the
    respondent was also subject to the human resources policies of the SNPF. The Termination
    of Employment Policy provided full-time, non-unionized employees with severance
    pay in lieu of notice, equivalent to two weeks pay for the first year of
    service and one week for each additional year of service, up to a maximum of 28
    weeks. It also provided that employees whose employment was terminated for
    certain reasons were not entitled to notice, payment in lieu of notice, or
    severance pay. These reasons included: disciplinary discharge; incompetence
    and/or unsatisfactory performance; failure to meet a bona fide occupational
    requirement or occupational qualification; failure to raise attendance to a
    satisfactory level; and ineligibility for continued employment.

[33]

The SNPF also had a Grievance Policy, which provided that any
    employee who feels aggrieved has the right to present a grievance. The policy
    gave broad rights of grievance, allowing an employee to file a grievance as a
    result of
any
occurrence or matter affecting the terms and conditions of
    employment (emphasis added). The policy also explained how grievances are to
    be pursued. It contained both an informal grievance process and a formal
    grievance process. If an employee did not receive a satisfactory internal
    resolution of their grievance, they could, in certain circumstances, refer the
    grievance to adjudication by the Board in accordance with the [
Federal Public Service Labour Relations
]
Act
and the Public
    Service Labour Relations Board Regulations. The policy did not identify the
    circumstances in which adjudication is available.

III.

The Motion Judges Reasons

[34]

The motion judge rejected the appellants submission that the
    respondents lawsuit was simply a series of complaints related to his
    employment, which could have been grieved, but that he had allowed his
    complaints to accumulate and then claimed constructive dismissal.

[35]

She explained that although employees in the core public administration
    had access to third-party adjudication for non-disciplinary terminations
    through the Board, this was not available to employees of undesignated separate
    agencies. The latter had a different route by virtue of ss. 236(3) of the
FPSLRA
.
    She stated, at paras. 13 and 14:

Section 209 of the
FPSLRA
appears to
    leave employees such as Mr. Pearce without recourse to an independent
    decision-maker if their employment was terminated for a reason that was not
    disciplinary; these employees may grieve a non-disciplinary termination but,
    with no right of referral to adjudication, under s. 214, the decision at the
    final level of their agencys internal grievance procedure is final.

This seemingly anomalous distinction between
    core public administration and non-designated (under s. 209(3)) separate
    agency employees is addressed by the section of the
FPSLRA
which is at
    the heart of this motion, s. 236. Section 236 gives the latter group a right of
    action against the employer. Section 236(1) states that the right to grieve
    disputes is in lieu of the right to sue but s. 236(3) allows employees of
    agencies such as the SNPF to sue their employer for a non-disciplinary
    termination.

[36]

She found that even if the essential character of the dispute is a
    series of grievable events, if one or a combination of those events is or
    amounts to a non-disciplinary termination, [then] the employee has the right to
    sue under s. 263(3) [
sic
]. According to the motion judge, termination
    in ss. 236(3) includes constructive dismissal. She determined that Parliament
    could not have intended an employee of an undesignated separate agency to have the
    right to sue for wrongful termination, while that employee did not have a right
    to sue for constructive dismissal and had to pursue an internal grievance
    process.

IV.

The parties submissions

(1)

The Appellant

[37]

The appellant submits that the word, termination, in ss. 236(3) of
    the
FPSLRA
does not include common law constructive dismissal. The
    appellant asserts that, when the statutory scheme is considered as a whole, it
    is evident that Parliament did not intend to include constructive dismissal in
    the
FPSLRA
. Parliament introduced ss. 236(1) and (2) as a complete
    bar to civil actions, like constructive dismissal, and codified ss. 236(3) as
    a narrow exception, applicable to employees of undesignated separate agencies
    who have been terminated for non-disciplinary reasons.

[38]

The appellant argues that any reason that does not relate to a
    breach of discipline or misconduct in ss. 236(3) cannot include constructive
    dismissal because the
FPSLRA
provides employees, like the respondent,
    with a comprehensive grievance process to resolve such disputes. Sections 208
    and 209 of the
FPSLRA
allow an employee to grieve all disputes related
    to their employment, and to appeal up to third-party adjudication by the Board.
    Subsection 236(3) offers an employee of an undesignated separate agency the ability
    to sue in court if the employee meets the conditions contained therein. It is
    the position of the appellant that these two options are put before the
    employee as an election, and that the employee can only pursue one for the
    resolution of their dispute. The appellant suggests that s. 209 of the
FPSLRA
,
    which gives a right to adjudicate a grievance in relation to disciplinary action
    resulting in termination, demotion, suspension or financial penalty, is
    robust enough to address any events or occurrences associated with a claim of
    constructive dismissal and, thus, ss. 236(3) cannot be used for this purpose. The
    appellant submits that if ss. 236(3) is read to incorporate constructive
    dismissal, employees would be able to launch collateral attacks against the
FPSLRA
regime by stringing together otherwise grievable events and occurrences just
    so they can commence an action in the courts.

(2)

The Respondent

[39]

The respondent submits that he had no recourse to the adjudication
    process because he was not a unionized employee, was not part of the core
    public administration, his termination was not the result of disciplinary
    action, and SNPF had not been designated under ss. 209(3) as being subject to
    adjudication for non-disciplinary terminations. He contends, therefore, that he
    has recourse to the court under ss. 236(3).

[40]

The respondent rejects the appellants proposition that an employee
    of a separate agency must make an election whether to pursue the grievance
    process under s. 208, or a court action under ss. 236(3). In the respondents
    view, s. 208 and ss. 236(3) of the
FPSLRA
serve different purposes. An
    employees failure to grieve can potentially be invoked by the employer as a
    defence to the constructive dismissal claim, but not as a bar to the
    commencement of the civil action.

V.

Analysis

[41]

This appeal turns on the interpretation of a statute. I turn first
    to the relevant principles, and then to their application.

(1)

Principles of statutory interpretation

[42]

In
Re Rizzo & Rizzo Shoes Ltd.
, [1998] 1 S.C.R. 27, the
    Supreme Court adopted the modern principle of statutory interpretation as expressed
    by Elmer Driedger. That principle stipulates that the words of an Act are to
    be read in their entire context and in their grammatical and ordinary sense
    harmoniously with the scheme of the Act, the object of the Act, and the
    intention of Parliament:
Rizzo
, at para. 21;
Bell ExpressVu
    Limited Partnership v. Rex
, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26.
    See also Ruth Sullivan,
Statutory Interpretation
, 3rd ed. (Toronto:
    Irwin Law, 2016), at pp. 44-45. In the federal legislative context, Driedgers
    modern approach is supported by s. 12 of the
Interpretation Act
,
    R.S.C. 1985, c. I-21, which provides that every enactment is deemed remedial,
    and shall be given such fair, large and liberal construction and interpretation
    as best ensures the attainment of its objects: see
Bell ExpressVu
, at
    para. 26.

(2)

The context

[43]

The Supreme Courts reference to the entire context reminds us
    that words have not only an intrinsic meaning, but that they sometimes take
    their meaning from their context  i.e. the words that surround them. In ss.
    236(3), the words termination of employment are followed by the words for
    any reason that does not relate to a breach of discipline or misconduct. We
    understand from the context that termination of employment is to be given a
    broad meaning (
any
reason), but that meaning
    will not include terminations for some reasons, namely, those that relate to a
    breach of discipline or misconduct.

[44]

We also know, from the broader context of ss. 236(1), that the right
    in ss. 236(3) is an exception that applies
only
to
    employees of undesignated separate agencies. All other employees, whether part
    of the core public administration or employed by designated separate agencies,
    must pursue their non-disciplinary terminations via grievance or third-party
    adjudication.

[45]

The logic of these provisions has been explained above and will be
    revisited when I examine the scheme and object of the legislation.

(3)

The grammatical and ordinary meaning

[46]

It is not difficult to determine the plain meaning of the words of ss.
    236(3): if the dispute relates to his or her termination of employment
for any reason
that does not relate to a breach of
    discipline or misconduct (emphasis added). The language is broad and, on its
    face, excludes only terminations that are based on breach of discipline or
    misconduct.

[47]

The appellant submits that the motion judge erred by improperly
    reading in the word constructive into the phrase, termination of
    employment, in ss. 236(3), thereby injecting the common law concept of constructive
    dismissal into the federal employment regime where it has no place.

[48]

Constructive dismissal occurs where the employers conduct evinces
    an intention to no longer be bound by the employment contract. When that
    occurs, the employee has a choice of accepting the conduct, or treating it as a
    repudiation of the contract and suing for wrongful dismissal:
Farber v.
    Royal Trust Co.
, [1997] 1 S.C.R. 846, at para. 33;
Potter v. New
    Brunswick Legal Aid Services Commission
, 2015 SCC 10, [2015] 1 S.C.R. 500,
    at para. 30. The word, constructive, indicates that the dismissal is a legal
    construct: the employers act is treated as a dismissal because of the way it
    is characterized by law:
Potter
, at para. 30.

[49]

In
Evans v. Teamsters Local Union No. 31
, 2008 SCC 20,
    [2008] 1 S.C.R. 661, at para. 26, the Supreme Court of Canada confirmed that
    constructive dismissal is a termination:

[T]he very purpose behind recognizing
    constructive dismissal is to acknowledge that where an employer unilaterally
    imposes substantive changes to an employment contract,
the
    employee has the right to treat the imposition of those changes as termination
.
    This termination is every bit as real as if the employee were actually told
    of the dismissal. [Emphasis added.]

[50]

As Wagner J., as he then was, observed in
Potter
,
    constructive dismissal can occur in one of two ways. In the first way, the
    court determines whether the employer has breached an express or implied term
    of the contract, and then determines whether the breach was sufficiently
    serious to amount to constructive dismissal:
Potter
, at para. 32. In
    the second way, the court determines whether the employers conduct more
    generally demonstrates an intention to no longer be bound by the contract. For
    example, if the employers treatment of the employee made continued employment
    intolerable:
Potter
, at para. 33.

[51]

The second approach is retrospective. As Wagner J. observed in
Potter
,
    at para. 33, it requires consideration of the cumulative effect of past acts
    by the employer and the determination of whether those acts evinced an
    intention no longer to be bound by the contract.

[52]

The approach is also objective. Under the second branch of the test
    for constructive dismissal, the question is whether the employers conduct,
    when viewed in the light of all the circumstances, would lead a reasonable
    person to conclude that the employer no longer intended to be bound by the
    contract:
Potter
, at para. 42.

[53]

It is precisely this form of constructive dismissal that the
    respondent relies upon. He pleads that although he resigned, his resignation
    was involuntary, and occurred due to the toll on his health from the toxic work
    environment created by his supervisor and his supervisors subordinates. This
    included harassment, groundless complaints against him, the downgrading of his
    position, and the removal of job responsibilities. This is patently a pleading
    of constructive dismissal.

[54]

In my view termination of employment for any reason in s. 236
    includes the termination of employment by way of constructive dismissal. The
    interpretation of the words surrounding termination in ss. 236(3) supports
    the conclusion that ss. 236(3) was meant to capture constructive dismissal. As
    noted earlier, in ss. 236(3), the word termination, is followed by the
    phrase, for any reason. As described by Juriansz J.A. in
Aviva Insurance
    Company of Canada v. McKeown
, 2017 ONCA 563, 136 O.R. (3d) 385, at para.
    21, [r]eason is a simple but flexible word used in common parlance. It can
    mean  a justification for some act or decision. The choice of Parliament to
    use the word any before reason indicates that the
FPSLRA
contemplates an unidentifiable number of justifications for an employees
    termination. Parliament did not attempt to restrict the definition of
    termination beyond the qualification that it could not relate to a breach of
    discipline or misconduct. The only plausible interpretation, when ss. 236(3)
    is read as a whole, is that Parliament conceptualized termination in the broadest
    possible terms: see
Brown v. Canada (Attorney General)
, 2013 ONCA 18,
    114 O.R. 3(d) 355, at para. 55.

[55]

I do not accept the appellants submission that ss. 236(3) should be
    given a narrow reading. As the motion judge noted, the words
relates to
his or her employment
for
    any reason
 are very broad: see
1704604 Ontario Ltd. v. Pointes
    Protection Association
, 2018 ONCA 685, 142 O.R. 3(d) 161, at para. 65,
    affd 2020 SCC 22. While I accept the proposition that the courts must respect
    Parliaments preference for a particular dispute resolution process, such as a
    grievance procedure and third-party adjudication (
Pleau v. Canada (Attorney
    General)
, 1999 NSCA 159, 181 N.S.R. (2d) 356, at paras. 19-20, leave to
    appeal refused, [2000] S.C.C.A. No. 83), that does not compel a narrow reading
    of otherwise broad and unambiguous language permitting a particular class of employees
    to pursue third-party adjudication in a judicial forum.

[56]

The appellants assertion that some of the respondents complaints
    were grieved and others could have been, misses the mark. Constructive
    dismissal can be established not only by single events, but it can also occur where
    the cumulative effect of the employers conduct entitles the employee to quit
    the labour relations equivalent of the final straw breaking the camels back.

[57]

I do not accept the appellants submission that constructive
    dismissal is a common law concept that has no place in the federal labour and
    employment regime. The appellant cites no judicial authority for this
    proposition, although he does cite to two decisions of the PSLRB and the
    PSLREB:
Gaskin v. Canada Revenue Agency
, 2008 PSLRB 96, at para. 69;
Wercberger
    v. Canada Revenue Agency
, 2016 PSLREB 41, at para. 57. In the former, the Board
    observed that it was clearly debatable whether the common-law doctrine of
    constructive dismissal can be applied in this jurisdiction, where the
    employers authority to terminate the employment relationship is precisely
    defined and circumscribed by statute:
Gaskin
, at para. 69. In the
    latter case, at para. 35, it was suggested that [t]he doctrine of constructive
    dismissal has no application to the federal public service as employees in the
    public sector must be terminated for cause.

[58]

Whatever the validity of that proposition in relation to public
    sector employees in the core administration or in designated separate agencies,
    the inclusion of ss. 236(3) makes it clear that an employee of an undesignated separate
    agency may well be terminated for reasons other than breach of discipline or
    misconduct  that is, for reasons other than cause  and preserves a right of
    action for such dismissals.

[59]

An employee who has been constructively dismissed cannot be said to
    have engaged in a breach of discipline or misconduct so as to fall within the
    exception contained in ss. 236(3).

(4)

The scheme of the Act, the object of the Act, and the intention of
    Parliament

[60]

The modern principle of statutory interpretation requires that the
    words of a statute be interpreted harmoniously with the scheme of the Act, the
    object of the Act, and the intention of Parliament. The legislative scheme
    includes the individual provisions, parts, and sections that work together to
    provide a plausible and coherent plan for the achievement of the statutes
    intended purpose: Ruth Sullivan,
Sullivan on the Construction of Statutes
,
    6th ed. (Toronto: LexisNexis Canada Inc., 2014), at §13.12. As described by
    Greshuk J. in
Melnychuk v. Heard
, 1963 CanLII 815 (Alta. S.C.), at p. 263:

The court must not only consider one section
    but all of the sections of an Act including the relation of one section to the
    other sections, the relation of a section to the general object intended to be
    secured by the Act, the importance of the section, the whole scope of the Act
    and the real intention of the enacting body.

[61]

In some cases, the legislature may have enacted more than one
    statute on the same subject-matter or enacted a provision meant to be read
    alongside another statute. In
Re Therrien
, 2001 SCC 35, [2001] 2
    S.C.R. 3, Gonthier J. explained, at para. 121, that [i]nterpretations
    favouring harmony between the various statutes enacted by the same government should
    indeed prevail. This presumption is even stronger when the statutes relate to
    the same subject-matter. The practice of considering multiple statutes in the
    interpretative exercise has also been codified in ss. 15(2)(b) of the federal
Interpretation
    Act
.

[62]

An interpretation of the provision at issue that promotes the
    purpose is preferred over one that is not: Sullivan,
Statutory
    Interpretation
, at p. 53. As explained by Dickson J. in
Covert v. Nova
    Scotia (Minister of Finance)
, [1980] 2 S.C.R. 774, at p. 807: The correct
    approach, applicable to statutory construction generally, is to construe the
    legislation with reasonable regard to its object and purpose and to give it
    such interpretation as best ensures the attainment of such object and purpose.
    The purposive analysis is a staple of modern statutory interpretation. It is
    not only used when the text under dispute is ambiguous, but in every case and
    at every stage of the interpretive exercise: Sullivan,
Statutory
    Interpretation
, at p. 185.

[63]

The interpretation of termination in ss. 236(3) as including
    constructive dismissal is supported by considering the broader context of the
FPSLRA
.

[64]

It will be recalled that ss. 209(1)(b) gives all federal public
    servants, (other than members of the RCMP), including employees of separate
    agencies, the right to refer a grievance to adjudication by the Board if it
    relates to disciplinary action resulting in termination, demotion, suspension
    or financial penalty (i.e. a disciplinary termination). However, ss.
    209(1)(c) also provides that employees in the
core public
    administration
are entitled to adjudication if their grievance relates
    to (i) demotion or termination under para. 12(1)(d) of the
FAA
for unsatisfactory
    performance, or under para. 12(1)(e) of the
FAA
for any other reason
    that does not relate to a breach of discipline or misconduct (i.e. a
    non-disciplinary termination).

[65]

Subsection 209(1)(d) makes a further special provision for an employee
    of a designated separate agency, who may pursue a non-disciplinary termination
    to adjudication.

[66]

Thus, to summarize, ss. 209(1)(b) and (c) of the
FPSLRA
provide employees of the core public administration with an opportunity to have
    their grievances referred to adjudication regardless of whether the termination
    is disciplinary or non-disciplinary. Subsections 209(1)(b) and (d) does the
    same for employees of separate agencies that have been designated under ss.
    209(3) of the
FPSLRA
.

[67]

There is no provision in s. 209 that gives employees of undesignated
    separate agencies access to third-party adjudication of their disputes over
    non-disciplinary terminations. Subsection 236(3) fills this gap, giving those
    employees access to third-party adjudication through the courts. The language
    of ss. 236(3), any reason that does not relate to a breach of discipline or
    misconduct, is an exact parallel to ss. 209(1)(d), with the difference being
    that employees of undesignated separate agencies have access to the courts for
    such grievances, while employees of designated separate agencies must seek
    adjudication by the Board.

[68]

Reading subsection 236(3) together with s. 209 demonstrates a Parliamentary
    intention to enable all public sector employees to have access to third-party
    adjudication for their non-disciplinary terminations. The difference is that
    employees who are part of the core administration and employees of designated
    separate agencies have access to the Board, while employees of undesignated
    separate agencies have access to the courts. This distinction is entirely in
    keeping with the intention of enabling separate agencies to behave more like
    private enterprises in their labour relations.

[69]

The purpose of the
FPSLRA
is to ensure that the Government
    of Canada is committed to the fair, credible and efficient resolution of
    matters arising in respect of terms and conditions of employment. There is no
    such fairness if ss. 236(3) of the
FPSLRA
is read to exclude
    adjudicative processes for employees of undesignated separate agencies who have
    been subject to non-disciplinary termination. Neither the
FPSLRA
nor
    the
FAA
draw a distinction between employees of the core public
    administration and employees of separate agencies so as to justify this
    differential treatment. In fact, the parties concede that Parliaments choice
    to distinguish between the core public administration and undesignated separate
    agencies appears to have been motivated by the desire to see the latter conduct
    its labour relations in a manner akin to the private sector. If that is the
    case, then one would expect that employees of separate agencies will have an avenue
    by which to seek a resolution of their non-disciplinary terminations. Subsection
    236(3) provides that, when read as the respondent proposes.

[70]

Subsection 236(3) was also enacted after the Supreme Court of Canada
    released its decision in
Vaughan
. In
Vaughan
, the Supreme
    Court cautioned that, where Parliament has created a comprehensive legislative
    scheme to deal with labour disputes, the process should not be compromised by
    permitting parallel access to the courts. The Supreme Court recognized,
    however, that there may be a residual discretion to access the courts if the
    grievance procedure did not allow for third-party adjudication. To reach its
    conclusion, the Supreme Court of Canada interpreted the
Public Service
    Staff Relations Act
, R.S.C. 1985, c. P-35 (
PSSRA
), the
    predecessor to the
FPSLRA
. The
PSSRA
had a grievance
    procedure that did not include third-party adjudication with respect to the
    denial of early retirement benefits. Grievance decisions were also insulated
    from judicial review by a final and binding clause found in the legislation.
    Parliament responded to
Vaughan
by repealing the
PSSRA
and
    enacting the
FPSLRA
. Subsection 236(3) was a completely novel
    provision, one without an equivalent in the
PSSRA
.

[71]

The context in which the
FPSLRA
and, specifically, ss.
    236(3) were enacted indicates that Parliament recognized and accounted for the
    Supreme Court of Canadas comments on the lack of access to third-party
    adjudication for federal public service employees. Unlike the
PSSRA
,
    the
FPSLRA
not only offers a comprehensive grievance regime through
    which employees can contest their terminations, but it also includes the right
    to third-party adjudication by the Board. At the same time, ss. 236(3) carves
    out a specific exception for the employees of separate agencies, not designated
    under ss. 209(3) of the
FPSLRA
, to access the courts in the limited
    circumstances of a non-disciplinary termination.

(5)

Response to the appellants other submissions

[72]

Despite the appellants contention, interpreting ss. 236(3) to
    include non-disciplinary terminations, such as constructive dismissal, does not
    lead to an absurd result. Subsection 236(3) is part of, and essential to, a
    fair grievance process for all employees of the federal public service.

[73]

The decision of the New Brunswick Court of Appeal in
Robichaud
    v. Canada (Attorney General)
, 2013 NBCA 3, 398 N.B.R. (2d) 259, referred
    to by the appellant, has no application. There, the court dismissed an action
    for constructive dismissal against the Correctional Service of Canada, because
    the employer was not a separate agency, and the court expressly observed that ss.
    236(3) was not applicable.

[74]

The appellant relies, however, on the decision of the Federal Court
    in a case involving Parks Canada which, like SNPF, is a separate agency:
Robinson
    v. Canada (Parks Agency)
, 2017 FC 613. There, the court struck an
    employees claim for constructive dismissal and other relief, on the basis that
    the claim disclosed no reasonable cause of action.

[75]

The motion judge in
Robinson
found that the determinative
    issue was whether ss. 236(3) of the
FPSLRA
applied with respect to the
    allegations contained in the statement of claim. He held, at para. 25, that it
    was necessary to determine the essential character of the dispute in view of
    the factual context in which it arises and the breadth of the legislative
    scheme for resolving labour disputes. He held, at paras. 26-27, that the claim
    involved matters that were or could have been grieved:

In this case, the Plaintiff's claim - that
    various events during his employment with Parks Canada cumulatively resulted in
    a constructive or direct dismissal of his employment without cause - is a
    collateral attempt to attack various decisions and events which are or were
    otherwise grievable under the [
F
]
PSLRA
or Parks Canada's
Staffing
    Policies
. In my view, each and all of the Plaintiff's claims pertain to
    occurrences or matters affecting his employment with the Defendant, and the
    legislative and administrative avenues for redress available to the Plaintiff
    in this case would be undermined if the Statement of Claim is not struck and
    the Plaintiff's complaints be allowed to proceed in this Court. Indeed, the
    second stage of the Plaintiff's grievance has been suspended pending the
    determination of this motion; that grievance process should be permitted to
    continue to its ultimate outcome. There is no suggestion in this case that the
    grievance process could not provide an appropriate remedy to redress the
    Plaintiff's complaints.

[I]n this case, the Plaintiff resigned and
    retired and did not meaningfully engage the schemes for resolution of workplace
    disputes available to him when the alleged events occurred; had he done so, the
    Defendant would have had an opportunity to respond to the disputes and take any
    necessary corrective steps as intended by these schemes.

[76]

It appears that in
Robinson
, the motion judge of the
    Federal Court accepted Canadas argument, at para. 23, that even when the
    right of action is based on subsection 236(3), the Court has discretion to
    decline to exercise jurisdiction to entertain a termination claim, and that
    the principles in
Vaughan
should guide the Court in determining
    whether it should defer to the comprehensive schemes established by Parliament
    and decline to exercise jurisdiction. That argument was not made before us.

[77]

In my view, respectfully, it is incorrect. As the Federal Court
    judge in
Robinson
observed, at para. 20, this court stated in
Bron
,
    at para. 28, that the legislation under consideration in
Vaughan
(the
PSSRA
),
    did not contain a provision similar to s. 236 of the
FPSLRA
, and [t]he
    holding in
Vaughan
that the Superior Court retained a residual
    discretion to entertain a claim based on a grievable complaint turned on the
    language of the
PSSRA
the legislation in force at the relevant time.
    It held that the enactment of the
FPSLRA
had changed the basic holding
    in
Vaughan
.

[78]

It seems to me that, as regards an employee of an undesignated separate
    agency, s. 236 does not leave the court with a discretion to accept or decline
    jurisdiction. The right of an employee to grieve any dispute relating to the
    terms or conditions of the employees employment is in lieu of any right of
    action
unless
the dispute relates to his or her
    termination of employment for any reason that does not relate to a breach of
    discipline or misconduct. If the dispute falls within the latter category, the
    court has no residual discretion to refuse to hear it.

[79]

That being said, I take no issue with the approach in
Robinson
,
    which suggests that the court must determine the essential character of the
    dispute to see whether it falls within ss. 236(3). Given the broad language of
    that subsection, this will usually call for a determination of whether the
    termination was for something other than a breach of discipline or misconduct.
    I would not foreclose the possibility that a court hearing an action for
    constructive dismissal might conclude that a series of individually grieved or
    grievable complaints in a particular case do not cumulatively give rise to a
    claim for constructive dismissal.

[80]

With respect, it does not appear that the Federal Court in
Robinson
considered the purpose of ss. 236(3) or its interpretation. Nor did it consider
    the unique nature of a claim for constructive dismissal.

[81]

I contrast
Robinson
with
Haroun v. National Research
    Council of Canada
, 2015 FC 1168. The plaintiff was hired by the National
    Research Council of Canada (NRC) for a two-year term. The NRC is an
    undesignated separate agency. Mr. Haroun was dismissed before the end of his
    term for performance-related issues. He subsequently brought a grievance
    under the
FPSLRA
, in which he alleged that the NRCs decision was
    disguised discipline and without cause. The grievance was denied.

[82]

Mr. Haroun then commenced an action against the NRC. The parties moved
    under Rule 220 of the
Federal Court Rules
, SOR/98-106, for a
    determination on a preliminary issue of law  could the plaintiff launch a
    civil action, or was he required to seek judicial review of the grievance
    decision? The Federal Court observed, at para. 4, that at the heart of the
    impasse was the interpretation of s. 236 in the
FPSLRA
. It held, at
    para. 7 of its decision, that:

The scope of section 236 of the PSLRA must be
    assessed in light of sections 209 and 230, both of which distinguish between
    performance-based and disciplinary dismissals. Paragraphs 209(1)(c) and (d)
    restrict the right of adjudication for unsatisfactory performance to core
    employees of the Public Service or to the employees of designated separate
    agencies. Section 230 requires that, in such cases, the adjudicator apply the
    deferential standard of reasonableness.
Nowhere do these
    provisions purport to address or limit a cause of action at common law for the
    wrongful, non-disciplinary dismissal of employees of separate, undesignated
    agencies
. Instead, the PSLRA consistently recognizes a distinction
    between core Public Service employees (including the employees of designated
    separate agencies) and the employees of non-designated separate agencies. [Emphasis
    added.]

[83]

The Federal Court went on to state, at para. 9, that

[T]he purpose of subsection 236(3) is to
    preserve a common law right of action for employees of undesignated separate
    agencies in relation to performance-based terminations. In the face of the
    clear language used and the gravity of the consequences of termination, it
    cannot be that Parliament intended that employees like Mr. Haroun be limited to
    the option of pursuing a restrictive internal grievance with no right to
    independent adjudication. Indeed, there is no reason to think that Parliament
    intended to deprive separate agency employees of the right to the independent
    assessment of the merits of their performance-based terminations.

[84]

The Federal Court ultimately concluded that Mr. Haroun could move
    forward with his civil action. Although its reasons referred to
    performance-based terminations, those observations must be taken in the context
    of Mr. Harouns employment having been terminated for performance-based
    reasons. It would not be compatible with the broad language of ss. 236(3) (for
    any reason that does not relate to a breach of discipline or misconduct) to confine
    its operation to only performance-based terminations.

[85]

Nor would I give effect to the appellants argument that allowing
    the respondents claim to proceed will allow every employee of a separate
    agency to circumvent the grievance process. The respondents claim may or may
    not succeed. In order to succeed, he may be required to establish more than a
    series of complaints that could individually have been or were pursued through
    the grievance process. He will have to establish that, viewed individually or
    cumulatively, the employers acts and omissions reached the point that he was
    entitled in law to say, I quit, and to sue for damages.

VI.

disposition

[86]

For these reasons, I would dismiss the appeal. I would also order
    that if the parties are unable to agree on costs, they may make written
    submissions, to be filed with the registrar. The submissions shall not exceed
    three pages in length, exclusive of the costs outline. The respondents
    submissions shall be filed within 20 days of the release of these reasons and
    the appellant shall have 10 days thereafter to file a response.

Released: G.R.S.   FEB 03 2021

George R. Strathy C.J.O.

I
    agree. Paul Rouleau J.A.

I
    agree. S. Coroza J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Pipitone v. D'Amelio, 2021 ONCA
    115

DATE: 20210224

DOCKET: C66536

Fairburn
    A.C.J.O., Doherty and Thorburn JJ.A.

BETWEEN

Annette Pipitone

Applicant (Appellant)

and

Franco
    DAmelio

Respondent (Respondent)

Annette
    Pipitone, acting in person

Brigitta
    Tseitlin, for the respondent

Heard: February 18,
    2021 by video conference

On appeal from the order of Justice George A.
    MacPherson of the Superior Court of Justice, dated May 11, 2018, with reasons
    reported at 2018 ONSC 2970, and from the costs order, dated September 13, 2018,
    with reasons at 2018 ONSC 5185.

REASONS
    FOR DECISION

[1]

The
    appellant and respondent were married on October 11, 1969. They executed a
    separation agreement on October 3, 1984 and subsequently divorced in 1985. The
    appellant later remarried and then divorced a second time.

[2]

On
    July 2, 2015, the appellant brought a motion to vary the divorce order from her
    marriage to the respondent and to set aside the separation agreement as it
    relates to the waiver of spousal support, thereby seeking retroactive spousal
    support. She also brought an application for damages arising from alleged
    physical and sexual assault, mental abuse, and cruelty she is said to have endured
    prior to the marriage and during the course of the marriage.

[3]

This
    is an appeal from the dismissal of both claims.

[4]

The
    appellants objections can be grouped under three broad headings.

The Appellants
    Self-Represented Status

[5]

First,
    the appellant argues that, in light of her self-represented status at the
    motion, the motion judge failed in his obligation to provide her with the
    assistance she was owed.

[6]

While
    the appellant initially had a lawyer assisting her at the motion, counsel
    withdrew from the record on the tenth day of the motion, after which the
    appellant did not retain another lawyer. The appellant indicated her agreement
    to the withdrawal. The motion judge asked the appellant if she intended to
    retain new counsel. She did not intend to do so. He asked if she was prepared
    to proceed with the motion, and she confirmed that she was.

[7]

The
    appellant points to a number of factors that are said to support her claim of
    inadequate assistance from the motion judge. For instance, she argues that the motion
    judge should have informed her of the right to refuse her counsels withdrawal
    from the record, and he should have warned her about the consequences of that
    withdrawal.

[8]

We see
    no basis upon which the appellant could have opposed counsels withdrawal from
    the record. Nor do we see any basis for the claim that the motion judge failed
    to provide the appellant with assistance throughout the proceeding. To the
    contrary, the record reveals the motion judge took repeated steps to assist the
    appellant in navigating her way through the matter. By way of example, he
    helped her with basic evidentiary issues, explained how to enter exhibits,
    allowed her to record the proceedings, and explained the stages of examination-in-chief
    and cross-examination. In addition, the motion judge provided the appellant with
    an informational guide for self-represented litigants, and he encouraged her to
    read it. In our view, the appellant was provided with more than adequate
    assistance from the motion judge.

The Allegations of
    Abuse

[9]

Second,
    the appellant argues that the motion judge erred by rejecting her evidence
    about the allegations of abuse. She raises numerous complaints in this regard,
    most of which reflect an attempt to relitigate the credibility assessments that
    lay within the domain of the motion judge. Deference is owed to those
    assessments.

[10]

In our
    view, the motion judge made clear and detailed credibility findings, all of
    which were rooted in the full evidentiary record before him. In assessing the
    appellants credibility, the motion judge considered the evidence of other
    witnesses who were familiar with the parties at the time the alleged conduct took
    place, including the appellants mother. As the motion judge noted, some of
    that evidence contradicted the appellants version of events. In making his
    credibility assessments, the motion judge also considered certain statements
    that the appellant made in the proceedings relating to the divorce from her
    second husband, including where she had described the respondent as the boy
    next door.

[11]

In our
    view, the motion judge came to credibility conclusions that were rooted in the
    evidence. We defer to those conclusions.

The Historical
    Records

[12]

Third,
    the appellant argues that the motion judge erred by excluding certain
    historical records from the proceedings, ones that she claims would have
    corroborated her version of events. We see no error in the motion judges
    decision to exclude the records as inadmissible hearsay. While there is a Catholic
    Childrens Aid Society record, that may have been admissible to rebut the respondents
    implicit allegation of recent fabrication, considered in context, even if that
    record had been admitted for that purpose, it would not have had any impact on
    the manifold reasons given by the motion judge for rejecting the appellants credibility
    in this case.

Fresh Evidence and
    Costs Below

[13]

The appellant
    brings a fresh evidence application on appeal, asking this court to admit the excluded
    records. For the reasons already given, the fresh evidence application is
    dismissed because the records were not admissible. Even if the one record was
    admissible, it would not have affected the result.

[14]

The
    appellant also challenges the costs award from trial. It is indeed a heavy
    award, being $192,631. However, the motion judge gave detailed reasons for that
    award, allowing only for partial indemnity costs. In light of the length of the
    trial and the document-laden record, this was not an unreasonable amount. We
    see no error in the motion judges decision on costs. The principle of
    deference applies.

Disposition

[15]

The
    appeal is dismissed. The fresh evidence application is also dismissed.

[16]

Written
    costs submissions were received prior to the hearing of the appeal. Having
    regard to those submissions and the respondents success on appeal, we order that
    the appellant pay to the respondent his legal costs in the amount of $10,000,
    inclusive of disbursements and HST.

Fairburn
    A.C.J.O.

Doherty
    J.A.

J.A.
    Thorburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Qin v. Ontario Securities
    Commission, 2021 ONCA 165

DATE: 20210318

DOCKET: C68534

Doherty, Pepall and Thorburn
    JJ.A.

BETWEEN

Xundong
    Qin, also known as Sam Qin and Cenith Air Inc.

Plaintiffs (Appellants)

and

Ontario Securities Commission,
    Christie Johnson, Steve Carpenter and Naomi Chak

Defendants (Respondents)

Andrew Ostrom, for the appellants

Paul Le Vay and Fredrick R. Schumann,
    for the respondents

Heard: February 17, 2021 by video conference

On
    appeal from the order of Justice G. Dow of the Superior Court of Justice, dated
    April 24, 2020, striking the appellants statement of claim: reported at 2020
    ONSC 1145.

Doherty J.A.:

I

overview

[1]

In February 2015, the Ontario Securities
    Commission (OSC), acting under s. 126 of the
Securities Act
, R.S.O.,
    1990, c. S.5 (the Act), froze the assets of the appellants and related companies.
    In March 2015, the OSC commenced a proceeding against the appellants and
    related companies under s. 127 of the Act. In May 2015, Pattillo J., directed
    that the freeze order should continue:
OSC v. Future Solar
,
2015 ONSC 2334. In May 2016, a panel of
    the OSC dismissed the allegations against the appellants and directed the freeze
    order lifted forthwith:
Future Solar Developments Inc. et al.
, 2016
    ONSEC 17. In May 2018, the appellants sued the OSC and three employees (the
    respondents) for malicious prosecution.
[1]

[2]

The respondents moved to strike the statement of
    claim on the basis the decision of Pattillo J. estopped the appellants from proving
    the respondents acted without reasonable and probable cause when they commenced
    proceedings against the appellants. As proof of the absence of reasonable and
    probable cause is an essential element of the tort of malicious prosecution, the
    appellants claim could not possibly succeed if they were estopped from proving
    the absence of reasonable and probable cause.

[3]

The motion judge accepted the respondents
    submissions and struck the claim. He allowed the appellants 30 days to amend
    their claim to plead facts not available before Pattillo J. The appellants
    chose not to amend the claim, but did appeal from the order. For the reasons
    that follow, I would allow the appeal, set aside the order and return the
    proceedings to the Superior Court.

II

the OSC proceedings

[4]

The appellant, Mr. Qin, and various entities he
    controlled were involved in the development and management of solar energy
    projects in Ontario and elsewhere.
[2]
Mr. Qin attempted to raise capital for his projects, especially in China, using
    a program sponsored by the Ontario government, which allowed persons who made
    substantial investments in Ontario-based business to apply for permanent
    residence status in Canada. Mr. Qin raised several million dollars. Neither Mr.
    Qin, nor any of his companies were registered to sell securities. No prospectus
    was filed in connection with Mr. Qins efforts to raise funding.

[5]

The OSC commenced an investigation. In February
    2015, it issued an order under s. 126 of the Act, freezing the assets of the appellants
    and related companies. Section 126 allows the Commission to make that order:

If the Commission considers it expedient for
    the due administration of Ontarios securities law or the regulation of capital
    markets in Ontario

[6]

The OSC, as required by s. 126(5) of the Act,
    applied to the Superior Court, on notice to the appellants, for an order
    continuing the freeze order. The application came on before Pattillo J. Section
    126(5.1) directs that the freeze order may be continued:

If the court is satisfied that the order
    would be reasonable and expedient in the circumstances, having due regard to
    the public interest and,

(a) the due administration of Ontarios
    securities law or the securities law of another jurisdiction; or

(b)   the regulation of capital markets in
    Ontario or another jurisdiction.

[7]

In March 2015, before Pattillo J. heard the
    motion to continue the freeze order, the OSC commenced a proceeding under s.
    127 of the Act against the appellants. The OSC alleged the appellants had
    breached s. 25 of the Act by trading in securities without proper registration,
    and s. 53(1) of the Act, by distributing securities without first filing a
    prospectus. Under s. 127, the OSC can make any of a variety of orders, provided
    the order is justified in the public interest.

[8]

By order dated May 5, 2015, Pattillo J.
    continued the freeze order imposed by the OSC. His reasons for doing so are at
    the centre of the
issue estoppel
argument on which this appeal turns.
    I will return to those reasons.

[9]

Subsequent to the order of Pattillo J., the
    appellants unsuccessfully moved before Commissioner Condon to vary the freeze
    order:
Future Solar Developments Inc. et al.
, 2015 ONSEC 25.

[10]

In May 2016, the Commission heard the merits of
    the allegations against the appellants. The panel dismissed both allegations:
Future
    Solar Developments Inc. et al.
, 2016 ONSEC 17. Commissioner Lenczner,
    writing for the panel, found the appellants were not mainly engaged in the sale
    of securities and were not required to register under the Act. He further held
    the appellants were exempt under the private issuer exemption from the
    requirement of filing a prospectus.

III

the malicious prosecution lawsuit

[11]

In their statement of claim, the appellants pleaded
    the allegations made by the OSC in support of the freeze order in February 2015
    and in the statement of allegations in March 2015 were false, made without
    reasonable and probable cause, and made for a collateral and improper purpose.
    The appellants further pleaded the respondents had proceeded with the
    allegations against the appellants after March 2015, despite having been
    provided with all relevant documents and a full explanation of the nature of
    the appellants business operations, both of which demonstrated those
    operations were in compliance with the Act. Lastly, the appellants pleaded the
    proceedings before the OSC had been resolved entirely in their favour. The
    appellants claimed damages of $100,000,000.

IV

The motion judges decision

[12]

The respondents moved under r. 21.01(d) to
    strike the statement of claim. The respondents argued, the decision of Pattillo
    J. effectively decided there was reasonable and probable cause to initiate the
    proceedings under the Act against the appellants, and that the appellants were
    estopped from arguing, in the context of a malicious prosecution claim, the
    respondents did not have reasonable and probable cause.

[13]

The motion judge accepted the respondents
    argument. He held the finding of Pattillo J. that there was a serious issue to
    be tried in respect of the alleged breaches of the Act, raised the same
    question as did the pleading in the malicious prosecution action alleging the
    respondents had acted without reasonable and probable cause. The motion judge
    reasoned that, as essentially the same question had been determined in the
    proceedings before Pattillo J., the appellants were estopped from re-litigating
    that issue in the malicious prosecution lawsuit. That
estoppel
doomed
    the appellants action and warranted an order striking the claim:
Qin v.
    Ontario Securities Commission
, 2020 ONSC 1145, at paras. 11-12, 16.

V

analysis

[14]

The appellants advanced several arguments. In my
    view, the appeal can be resolved by addressing one of those arguments. Was the
    question answered by Pattillo J. on the motion to continue the freeze order the
    same question that will have to be answered in the civil suit when deciding
    whether the respondents had reasonable and probable cause to initiate
    proceedings against the appellants?

[15]

Although the motion judge referred to both
issue
    estoppel
and abuse of process in holding the respondents claim could not
    go forward, he correctly analyzed the arguments by reference to the essential
    elements of
issue estoppel
:
Qin v. Ontario Securities Commission
,
    2020, ONSC 1145, at paras. 11, 17. The doctrine of abuse of process may
    preclude re-litigation that does not meet the exact criteria for
issue
    estoppel
: see
Winter v. Sherman Estate
, 2018 ONCA 703, at para. 7.
    However, on the facts of this case, there is no basis apart from
issue
    estoppel
to argue the malicious prosecution claim constitutes an impermissible
    re-litigation of decided facts. I will examine the merits of the appellants
    argument solely by reference to the elements of
issue estoppel
.

[16]

Issue estoppel
protects against the
    abuse of the courts process by preventing an unsuccessful party from re-litigating
    a material fact or issue previously and finally decided in proceedings
    involving the same parties or their privies. The doctrine is not absolute and
    will not be applied if the interests of justice dictate otherwise:
Danyluk
    v. Ainsworth Technologies Inc.
, 2001 SCC 44, at paras. 20, 24-25, 33.

[17]

Issue estoppel
operates to preclude re-litigation when
    an issue or material fact that must be decided in the second proceeding raises
    the same question that was decided in the previous proceeding. Binnie J. explained
    this requirement in
Danyluk
, at para. 54:

In this case, for example, the existence of
    an employment contract is a material fact common to both the ESA proceeding and
    to the appellants wrongful dismissal claim in court.
Issue estoppel
simply means that once a material fact such as a valid employment contract is
    found to exist (or not to exist) by a court or tribunal of competent
    jurisdiction, whether on the basis of evidence or admissions, the same issue
    cannot be relitigated in subsequent proceedings between the same parties.
The
    estoppel, in other words, extends to the issues of fact, law and mixed fact and
    law that are necessarily bound up with determination of that issue in the
    prior proceedings
. [Emphasis added.]

[18]

Issue estoppel
extends to findings that are necessarily bound up in the findings made in the
    prior proceeding. The outcome of this appeal turns on whether a determination
    the OSC had reasonable and probable cause to commence proceedings against the
    appellants was necessarily bound up in Pattillo J.s finding that the OSC
    allegations raised a serious issue to be tried.

[19]

What exactly did Pattillo J. decide? He was
    required to interpret, as a matter of first impression, s. 126(5.1), a
    relatively new provision in the Act.
[3]
Pattillo J. concluded, at para. 31, that the OSC had to establish three things to
    obtain an order continuing the freeze order. Only the first of those three
    requirements is relevant here. He framed that requirement in these terms:

There is a serious issue to be tried in
    respect of the respondents breaches of the Act or other security laws in
    another jurisdiction.

[20]

This requirement speaks to some assessment of
    the merits of the allegations, but only in a very limited way. Just how limited
    is made clear by Pattillo J., at para. 28, where he describes the serious
    issue to be tried standard as:

A lesser standard than the requirement to
    establish a strong
prima facie
case or even a
prima facie
case.

[21]

A
prima facie
case is one which, if
    unanswered, would justify, although not compel, a finding in favour of the
    party advancing that case. In the context of a s. 126(5) hearing, a finding of
    a
prima facie
case may be the equivalent of a finding of reasonable
    and probable cause to believe the appellants had breached the Act. Pattillo J.,
    however, expressly indicated he was assessing the merits of the OSCs
    allegations on the lesser standard captured by the phrase serious issue to
    be tried. That standard comes from the interlocutory/stay jurisprudence and is
    used to describe a claim which, upon a preliminary assessment, is said to rise
    above the level of a frivolous or vexatious claim. The merits threshold described
    by the phrase serious issue to be tried is clearly a low one: see
RJR-MacDonald
    Inc. v. Canada (Attorney General)
, [1994] 1 S.C.R. 311, at 337;
American
    Cyanamid v. Ethicon Ltd.
, 1975 A.C. 396, at pp. 404-405 (H.L.). In my
    view, a finding a claim is not frivolous or vexatious does not answer the
    question whether the same claim is based on reasonable and probable cause.

[22]

The serious issue to be tried standard and the
    reasonable and probable cause standard are qualitatively different. The
    reasonable and probable cause standard invites scrutiny of the record to
    determine the likelihood or probability, at the time the proceedings were
    commenced, that the OSC could ultimately establish the allegations. The serious
    question to be tried standard addresses the preliminary question of whether
    the OSC had provided a sufficient basis upon which it could be said the
    allegations had some merit warranting the continuation of the freeze orders and
    related investigative steps. Viewed in their proper context, it is clear the
    presence of reasonable and probable cause does not flow from a finding of a serious
    issue to be tried and cannot be described as necessarily bound up in that
    finding.

[23]

Although the different standards engaged by the
    serious issue to be tried question and the reasonable and probable cause
    question are enough to conclude
issue estoppel
cannot apply, the appellants
    point to a second related and equally compelling reason for reaching that
    result.

[24]

In considering whether there was a serious issue
    to be tried concerning the merits of the allegations made against the
    appellants, Pattillo J. indicated he would not assess the merits of the
    exculpatory material placed before the court on the motion:
OSC v. Future
    Solar
, 2015 ONSC 2334, at paras. 36-37. The approach taken by Pattillo J.
    reflects the preliminary nature of his assessment of the merits of the allegations.
    The matter was still in the investigative stage. Pattillo J. was asked to
    freeze assets so that those assets might eventually be available, depending on
    any disposition the OSC might make under s. 127 of the Act. At this stage, Pattillo
    J. was not engaged in an assessment of the ultimate merits, which would include
    any explanations offered by the defence.

[25]

While the relatively narrow evidentiary focus
    taken by Pattillo J. makes sense in the context of a s. 126(5) motion, a
    broader inquiry is required when assessing whether the respondents had reasonable
    and probable cause. As explained in
Miazga v. Kvello Estate
, [2009] 3 S.C.R. 339, at 375-76,
    reasonable and probable cause, in the context of prosecutions initiated by
    public prosecutors, requires a determination of whether, objectively viewed,
    the facts known to the prosecution when it was undertaken, provided reasonable
    and probable cause to initiate the proceeding. This exercise engages an
    examination of all of the facts known to the prosecution when it initiated proceedings.
    Those facts include facts known to the prosecution which could exculpate the
    would-be targets of the prosecution. Further, as set out above, the totality of
    the facts known to the prosecution must be measured, not against the serious
    issue to be tried standard, but against the more demanding reasonable and
    probable cause standard.

[26]

Had Pattillo J. been called upon to decide
    whether the OSC had reasonable and probable grounds to commence proceedings
    against the appellants, he would have been required to consider the merits of
    the exculpatory information the appellants had provided to the OSC. Pattillo J.
    expressly, and
properly in my
    view, declined to engage in that exercise in the context of a motion to
    continue the freeze order.

[27]

I come back to the question  what did Pattillo
    J. decide? He determined the freeze order made by the OSC should be continued under
    the criteria he described in his reasons. Those criteria did not require the
    OSC to demonstrate reasonable and probable grounds to take proceedings against
    the appellants. Nothing decided by Pattillo J. would preclude the appellants
    from arguing the OSC did not have reasonable and probable grounds to believe
    the appellants had breached the Act, either when they initiated the freeze
    order, or when they commenced proceedings.

[28]

In holding that
issue estoppel
does not apply, I do not suggest the decision of Pattillo J., to the extent it
    addresses the merits of the allegations, does not have evidentiary value when
    it comes to deciding whether the appellants have proved the respondents did not
    have reasonable and probable cause to commence proceedings:
Miazga v.
    Kvello Estate
, at para. 97.

VI

conclusion

[29]

I would allow the appeal, set aside the order
    striking the appellants statement of claim, and remit the matter to the
    Superior Court.

[30]

I would award the appellants costs of the
    motion, fixed at $7,000 all in, and costs on the appeal, fixed at $6,000 all
    in.

Released: March 18, 2021 DD

Doherty
    J.A.

I
    agree S.E. Pepall J.A.

I
    agree Thorburn J.A.

[1]

The appellants also alleged negligent investigation, but
    have abandoned that claim.

[2]

The appellants maintain that, unlike the other corporate
    entities, Cenith Air Inc. was involved in the manufacture of air purifiers and
    had no involvement in any solar energy project. I need not address that claim
    as, on my analysis, it has no relevance to the outcome of the appeal.

[3]

The correctness of Pattillo J.s interpretation of s.
    126(5.1) is not in issue on this appeal.


COURT OF APPEAL FOR ONTARIO

CITATION: Quickie Convenience Stores Corp.
    v. Parkland Fuel Corporation, 2021 ONCA 287

DATE: 20210503

DOCKET: C67832

Fairburn A.C.J.O., Feldman and
    Nordheimer JJ.A.

BETWEEN

Quickie
    Convenience Stores Corp.

Applicant (Appellant)

and

Parkland
    Fuel Corporation

Respondent (Respondent)

William C. McDowell, Brian Kolenda
and
Vinayak Mishra, for the appellant

Linda M. Plumpton and Jonathan Silver,
    for the respondent

Heard: in writing

On appeal from the judgment of Justice Paul
    B. Kane of the Superior Court of Justice dated November 14, 2019, with reasons
    reported at 2019 ONSC 6520.

COSTS ENDORSEMENT

[1]

On July 10, 2020, we released our decision in
    which we allowed the appeal, set aside the order below and, in its place,
    granted an order providing the appellant with the declaratory relief that it
    sought in its Notice of Application. We awarded the appellant the costs of the
    appeal fixed in the agreed amount of $3
5,000
inclusive of disbursements and HST. We then invited the parties to
    make written submissions on the costs of the original application. While the
    parties filed their costs submissions in accordance with the schedule set by
    the court, due to an administrative error, those submissions were only very
    recently provided to the panel. We have now reviewed those submissions.

[2]

The appellant asks for its costs of the appeal
    on a substantial indemnity basis in the amount of $230,313.09 on the basis of
    the conduct of the respondent that led up to this proceeding. In the
    alternative, the appellant seeks costs in the amount of $174,978.68, representing
    60% of its actual costs.

[3]

The respondent does not dispute that the
    appellant is entitled to its costs of the application but submits that there is
    no basis for an award of substantial indemnity costs. The respondent also
    submits that the amount of costs sought is excessive. It says that a reasonable
    amount would be no more than $85,000.

[4]

Contrary to the appellants submissions, we do
    not consider the conduct of the respondent to be such as to warrant an award of
    costs on the elevated substantial indemnity scale. As has been observed in many
    cases, costs on the elevated scale are exceptional and are reserved for those
    situations when a party has displayed reprehensible, scandalous or outrageous
    conduct: see, most recently,
Montréal (Ville) v. Octane Stratégie inc.
,
2019 SCC 57, 440 D.L.R. (4th) 1, at para. 95. The conduct of the respondent in
    this case does not rise to that level, even with the finding of bad faith
    dealing. An award of partial indemnity costs is appropriate.

[5]

In our view, an award of costs in the amount of
    $100,000 inclusive of disbursements and HST is a fair and reasonable amount to
    fix for the costs of the original application. In fixing that amount, we have
    taken into account a number of factors including the fact that the application
    judge awarded the respondent costs of $52,900 on the original application, that
    the appellant would have had a heavier burden as the applicant, and that
    neither party was successful on all of the issues raised.

[6]

The respondent is ordered to pay that amount to
    the appellant.

Fairburn
    A.C.J.O.

K.
    Feldman J.A.

I.V.B.
    Nordheimer J.A.