WARNING

The President
    of the panel hearing this appeal directs that the following should be attached
    to the file:

An order
    restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4)
    or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

486.4       (1)
Subject to subsection (2), the presiding judge or
    justice may make an order directing that any information that could identify
    the complainant or a witness shall not be published in any document or broadcast
    or transmitted in any way, in proceedings in respect of

(a)     any of
    the following offences;

(i)   an
    offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170,
    171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02,
    279.03, 346 or 347,

(ii)  an
    offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent
    assault on female), 156 (indecent assault on male) or 245 (common assault) or
    subsection 246(1) (assault with intent) of the
Criminal Code
, chapter
    C-34 of the Revised Statutes of Canada, 1970, as it read immediately before
    January 4, 1983, or

(iii) an
    offence under subsection 146(1) (sexual intercourse with a female under 14) or
    (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction
    of a female between 16 and 18), 153 (sexual intercourse with step-daughter),
    155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian
    procuring defilement) or 167 (householder permitting defilement) of the
Criminal
    Code
, chapter C-34 of the Revised Statutes of Canada, 1970, as it read
    immediately before January 1, 1988; or

(b)     two
    or more offences being dealt with in the same proceeding, at least one of which
    is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2)
In
    proceedings in respect of the offences referred to in paragraph (1)(a) or (b),
    the presiding judge or justice shall

(a)  at the first reasonable opportunity, inform any
    witness under the age of eighteen years and the complainant of the right to
    make an application for the order; and

(b)  on application made by the complainant, the prosecutor
    or any such witness, make the order.

(3)
In
    proceedings in respect of an offence under section 163.1, a judge or justice
    shall make an order directing that any information that could identify a
    witness who is under the age of eighteen years, or any person who is the
    subject of a representation, written material or a recording that constitutes
    child pornography within the meaning of that section, shall not be published in
    any document or broadcast or transmitted in any way.

(4)
An
    order made under this section does not apply in respect of the disclosure of
    information in the course of the administration of justice when it is not the
    purpose of the disclosure to make the information known in the community. 2005,
    c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

486.6     (1)
Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)
For
    greater certainty, an order referred to in subsection (1) applies to prohibit,
    in relation to proceedings taken against any person who fails to comply with
    the order, the publication in any document or the broadcasting or transmission
    in any way of information that could identify a victim, witness or justice
    system participant whose identity is protected by the order. 2005, c. 32, s.
    15.

COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Thompson, 2012
    ONCA 564

DATE: 20120831

DOCKET: C54852

Feldman, Sharpe and Ducharme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

James Thompson

Appellant

Frank Addario, for the appellant

Roger A. Pinnock, for the respondent

Heard: August 21, 2012

On appeal from the judgment of Justice Michael H. Tulloch
    of the Superior Court of Justice, sitting as a summary conviction appeal court judge,
    dated December 30, 2011, dismissing the appeal from the conviction entered by
    Justice June Maresca of the Ontario Court of Justice on May 6, 2010.

By the Court:

[1]

The appellant was convicted of two counts of sexual assault and one
    count of invitation to sexual touching in a summary conviction prosecution in
    the Ontario Court of Justice.  His appeal to the Superior Court of Justice was
    dismissed.  He appeals the convictions to this court, having been granted leave
    to appeal by a single judge of this court.

[2]

The alleged offenses involved a nine-year-old female complainant who
    stayed with the appellant and his wife overnight on two occasions: once in
    April and once in May 2009.  The appellant and his wife were close friends of
    the complainants parents and acted as adopted grandparents to their
    children.

[3]

The complainant and appellant gave differing accounts of what occurred
    on the overnight visits.  The complainant testified that on each of her two
    visits, the appellant had rubbed her breasts, vagina and buttocks and asked her
    to rub his belly and put her hand down his pants while they watched a movie in
    the basement.  This formed the basis of the sexual assault charges.  The
    allegation of invitation to sexual touching arose from the complainants
    testimony that during her May visit, the appellant invited her to lie with him
    in a hammock and rub his belly.

[4]

The appellant, age 72 at the time of the alleged offenses, denied the
    allegations.  He testified that it was the complainant who took his wrists and
    placed them on her breasts on each occasion.  His evidence was that he pulled
    his hands away and scolded the complainant for her behaviour.  He denied the
    invitation to touching allegation and stated that the complainant simply lay
    with him for a few moments in the hammock.  The appellants wife testified that
    she was present during the entire time the movies were played and that nothing
    untoward occurred.

[5]

The trial judge engaged in a lengthy discussion of credibility and gave
    detailed reasons for concluding that she accepted the evidence of the
    complainant and rejected that of the appellant and his wife.

[6]

The appellant submits that the reasons of the summary conviction appeal
    court judge dismissing the appeal failed to deal with his submissions that the
    trial judge had both misapprehended evidence relating to her credibility
    findings and failed properly to apply the
W.(D.)
test.  These
    submissions effectively invite us to deal with the alleged inadequacies in the
    trial judge's reasons, and we will proceed to dispose of the appeal on that
    basis.

(1)

Did the trial judge misapprehend the evidence
    relating to the timing of the basement assaults or fail to explain adequately
    her reason for rejecting the evidence of the appellants wife?

[7]

The complainant consistently testified that both basement assaults occurred
    during the first part of the movie when the appellants wife was not present.  The
    appellants wife testified she was present for the entire movie on both
    occasions.  On one of the evenings, she left the basement after the movie had
    concluded to get a glass of wine.  In her trial evidence, she testified that
    she took the complainant with her for a treat.  In her statement to the police,
    she said that she first went for wine, leaving the appellant and the
    complainant together in the basement alone, and then the complainant came
    upstairs.  The trial judge found this was a significant inconsistency, as it
    took off the table a period of time when the assault could have occurred.

[8]

The appellant submits that the inconsistency was insignificant, given
    the complainants consistent story that the assault occurred during the first
    part of the movie.  The appellant further submits that the trial judge erred by
    finding that the assaults might have occurred after the movie, a time
    completely at odds with the complainants evidence.

[9]

We are unable to give effect to this ground of appeal for the following
    reasons.

[10]

First,
    we agree with the central point made by the respondent, namely, that the issue was
    neither whether the touching occurred nor when it occurred, but rather whether
    it was the complainant or the appellant who instigated the touching.  According
    to the appellant, he and the complainant were alone in the basement before his
    wife came down, and it was the complainant who took his hand to her breasts.  Even
    on the appellants own evidence, there was sexual touching at some point on
    both occasions.

[11]

Second,
    the trial judge gave full reasons for rejecting the evidence of the appellants
    wife.  The trial judge found that the appellants wife was so persuaded that
    her husband could not have committed these offenses that, even if she was not
    deliberately attempting to mislead the court, her evidence could not be trusted.
     The inconsistency between her police statement and the evidence she gave at
    trial was simply an example of that phenomenon.

[12]

Third,
    we do not agree with the submission that the trial judge convicted the
    appellant on the theory that the assaults might have   occurred after the movie
    concluded and while the wife was getting a glass of wine.  The trial judge was
    clear in her acceptance of the complainants version of events.

[13]

We
    add here a point that carried significant weight with the trial judge. The
    appellants evidence that the nine-year-old complainant had initiated sexual
    conduct with him was implausible and was made even more implausible by his
    failure to report the complainants highly inappropriate conduct to his wife or
    the complainants parents.

(2)

Did the trial judge fail to apply the
W.(D.)
test?

[14]

The
    appellant submits that while the trial judge stated that the defendants
    evidence was insufficient to raise a reasonable doubt, she failed to consider
    whether the evidence of the appellants wife and daughter was sufficient to
    raise a reasonable doubt.

[15]

We
    disagree.  While perhaps the trial judge could have explained this point more
    fully, in our view, paragraphs 58 and 60 of her reasons are sufficient.  There,
    she evaluated the totality of the evidence, including the evidence of the
    appellant, his wife, and a friend of the appellant who provided character
    evidence.  She concluded: I find that on the totality of all the evidence, the
    crown has discharged its onus beyond a reasonable doubt.

(3)

Did the trial judge err by failing to deal with
    evidence as to the appellants apparel?

[16]

The
    complainant testified that the appellant was wearing black or navy blue Joe
    Boxer shorts when the assaults occurred.  The appellant denied wearing boxer
    shorts on the two occasions, a denial supported by his wife and daughter who
    testified that he was not in the habit of wearing boxer shorts around the
    house.  The appellant introduced into evidence a pair of Joe Boxer shorts that
    he owned.  Those shorts had a dark blue waistband, but the fabric was plaid
    rather than black or navy blue.  The trial judge did not specifically address
    this point in her reasons.

[17]

While
    it would have been preferable had the trial judge done so, in the context of
    this case and given the balance of the evidence, we are not persuaded that the
    trial judges failure to deal with this point is fatal to the convictions. The
    issue of the appellants apparel was peripheral, the discrepancy between the
    complaints description of the shorts and the shorts produced by the appellant
    was not great and, given the balance of the evidence, we are satisfied that
    this evidence would not have impacted the trial judges credibility findings.

(4)

Did the trial judge misapprehend the
    significance of video evidence of the hammock?

[18]

The
    appellant introduced video evidence that showed a hammock
    in a position where it could be seen by the appellants wife from their house.  In
    his testimony, the appellant relied on the video to refute the invitation to
    sexual touching allegation by suggesting that he would not have done anything
    untoward from a position where he could readily be seen by his wife.  However, in
    cross-examination, the appellant admitted that the position of the hammock
    shown in the video was different from its location at the relevant time.  The
    trial judge found this to be a deliberate attempt to mislead the court, a
    finding that she used to support her rejection of the appellants evidence.

[19]

The
    appellant submits that the trial judge failed to take into account that a
    videographer arranged by the appellants lawyer, not the appellant, who had
    prepared the video.

[20]

We
    see no merit in this submission.  Knowing that the video did not show the true
    position of the hammock on the day in question, the appellant nonetheless
    relied on the video to support his story.  It was open to the trial judge to
    find that, whoever prepared the video, the appellant had testified in a manner
    that he knew to be misleading and that this bore directly upon his overall
    credibility.

Conclusion

[21]

For
    these reasons, and despite the very capable argument advanced on behalf of the
    appellant by Mr. Addario, the appeal is dismissed.

Released: Aug. 31, 2012

KF                                                                              K.
    Feldman J.A.

Robert
    J. Sharpe J.A.

Ducharme
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Sandhu v. Sandhu, 2012
    ONCA 554

DATE: 20120824

DOCKET: C53124

Goudge, Gillese and Armstrong JJ.A.

BETWEEN

Hervinder Kaur Sandhu

Applicant (Respondent)

and

Amardip Singh Sandhu and Gurpal Kaur Sandhu

Respondents (Appellants)

Amardip Singh
    Sandhu and Gurpal Kaur Sandhu, appearing in person

Rajneesh K. Sharda, for the respondent

Heard: August 23, 2012

On appeal from the order of Justice H. McGee of the Superior
    Court of Justice, dated November 26, 2010.

APPEAL BOOK ENDORSEMENT

[1]

In our view, the absence of the appellants mother is not a basis for
    allowing this appeal. The appellant had six days notice which should have been
    enough to obtain her presence at trial. Nor did the appellant ask for an
    adjournment to permit her attendance.

[2]

As to access, the appellant is really asking this court to retry this
    issue. That we cannot do. We see no error in the trial judges disposition of
    that issue or of any of the other issues.

[3]

The appeal must be dismissed. Costs to the respondent fixed at $15,000
    in total.


COURT OF APPEAL FOR ONTARIO

CITATION: Sobeski v. Mamo, 2012 ONCA 560

DATE: 20120828

DOCKET: C53659

Winkler C.J.O., Armstrong and LaForme JJ.A.

BETWEEN

Raymond Sobeski

Plaintiff (Respondent)

and

Alfred
    Mamo, Bell Globemedia Publishing Inc.,

Peter
    Cheny and Edward Greenspon

Defendants (Appellant, Alfred Mamo)

J. Brian Casey and Paul Hughes, for the appellant,
    Alfred Mamo

Mark M. Orkin, Q.C. and Robert G. Schipper, for the
    respondent Nynna Ionson

Brian G. Shiller, for the respondent Raymond Sobeski

Heard: March 8, 2012

On appeal from the order of Justice Paul Perell of the
    Superior Court of Justice, dated April 6, 2011, with reasons reported at 2011
    ONSC 2153, 105 O.R. (3d) 532, and supplementary reasons reported at 2011 ONSC
    4814, [2011] O.J. No. 3684.

Armstrong
    J.A.:

INTRODUCTION

[1]

Nynna Sobeski, also known as Nynna Ionson, retained Alfred Mamo, a
    family law lawyer, to act for her in respect of matrimonial proceedings with
    her husband, Raymond Sobeski.  Ms. Sobeski provided numerous documents to her
    lawyer in connection with the proceedings.  The matrimonial proceedings were
    settled prior to trial.  Mr. Mamo now seeks to use Ms. Sobeskis documents,
    which he still has in his possession, in defence of this defamation action
    brought against him by Mr. Sobeski.

[2]

Mr. Mamo moved for an order pursuant to rule 30.1.01(8) of the
Rules
    of Civil Procedure
that the deemed undertaking does not apply in respect
    of Ms. Sobeskis documents.  Perell J. of the Superior Court of Justice
    dismissed the motion and ordered that Mr. Mamo return all of Ms. Sobeskis
    documents to her.  Mr. Mamo now appeals to this court.  Mr. Sobeski did not
    take a position on the motion or in this appeal.

BACKGROUND

[3]

Nynna Sobeski and Raymond Sobeski began a romantic conjugal relationship
    in December 1994.  They were married in December 1998.  After the marriage, the
    relationship continued as before and they continued to live apart.

[4]

On January 4, 2004, Mr. Sobeski obtained a divorce judgment, which was
    not defended by Ms. Sobeski.  Ms. Sobeski subsequently alleged that she was
    duped into not defending the divorce petition and that Mr. Sobeski had
    concealed from her the fact that he had won a $30 million lottery prize.

[5]

Ms. Sobeski retained Mr. Mamo to set aside the divorce decree and to
    pursue a claim for a share of the lottery prize as a part of the equalization
    of the matrimonial property.

[6]

Mr. Sobeskis defence was that there was no genuine marital
    relationship.  In response to his defence, Ms. Sobeski provided her lawyer with
    a multitude of documents, which included correspondence with her husband.

[7]

The case attracted a certain amount of media interest.  In December
    2005, Mr. Mamo was interviewed by a
Globe and Mail
reporter.  In a
Globe
    and Mail
story, which followed, Mr. Mamo is reported to have said:

There are two versions of what happened here.  By Wednesday,
    people will understand that Nynnas is the accurate one.  And theyll see that
    his is a perjured account.

[8]

On March 13, 2006, Mr. Sobeski commenced this action against Mr. Mamo, the
    publisher of the
Globe and Mail
, the
Globe and Mail
reporter,
    and the editor-in-chief of the
Globe and Mail
for defamation.  In
    defence, Mr. Mamo pleaded fair comment and justification.

[9]

From May 2006 to December 2008, the defamation action was dormant while
    the matrimonial case moved ahead.  The matrimonial case settled before trial in
    January 2009.

[10]

Subsequent
    to the settlement, there is some evidence that Mr. and Ms. Sobeski resumed
    their personal relationship.  Ms. Sobeski then moved to have Mr. Mamos legal
    accounts assessed.  Also, Mr. Sobeski began to move his defamation action
    forward.

[11]

In
    his defence, Mr. Mamo sought to use many of the documents that Ms. Sobeski had
    given to him during the matrimonial litigation.  Counsel for Mr. Mamo requested,
    through counsel for Ms. Sobeski, a waiver of solicitor/client privilege and the
    deemed undertaking in respect of the aforesaid documents.  The solicitor for
    Ms. Sobeski was instructed to refuse the request.

[12]

Counsel
    for Mr. Mamo then moved in motions court for relief from the deemed undertaking
    rule.  He did not seek waiver of solicitor/client privilege because all of the
    documents in issue had been disclosed to Mr. Sobeski in the matrimonial
    proceedings, and therefore privilege did not apply.

[13]

The
    documents in issue on the motion are described as follows:

·

Affidavit of Divorce

·

Amended Answer

·

Affidavit of Nynna Sobeski and two exhibit books

·

10 document briefs

·

119 CDs of recorded conversations

·

Applicants Records Vol. I and II

·

Respondents Record

·

Transcript of Ms. Ionsons questioning

·

Request to Admit, 2 volumes

·

Offers to Settle

·

Orders  Motion to Set Aside Divorce

·

Medical Records

·

Transcripts of Mr. Sobeskis questioning, 3 volumes

·

Additional CDs

·

Exhibits to Mr. Sobeskis questioning

·

Exhibits to Ms. Sobeskis questioning

[14]

The
    motion judge concluded that some of the documents in issue were not covered by
    the deemed undertaking.  These included documents that had been filed in court
    and are exempt under rule 30.1.01(5) as well as documents used for the purpose
    of impeaching a witness under rule 30.1.01(6).  The motion judge also noted
    that the deemed undertaking only applied to documents obtained under rules 30,
    31, 32, 33 and 35 and that some of the documents were obtained outside of those
    rules.  The motion judge did not provide details of what documents fell outside
    that category.  As will be seen from my analysis below, I am of the view that
    none of the documents in issue were obtained by Mr. Mamo under rules 30, 31,
    32, 33 and 35.

[15]

The
    motion judge observed that although the deemed undertaking was being asserted
    in an unusual way, some of the documents in issue were subject to the rule.  He
    concluded at para. 33 of his reasons:

The normal situation envisioned by the rule is that the
    lawyers undertaking would be extended to documents and information disclosed
    by the opposing party, namely, Mr. Sobeski.  In this case, the deemed
    undertaking is being asserted for the benefit of Mr. Mamos own client.
    Despite the oddity, in my opinion, the deemed undertaking applies because it is
    being asserted by a person for whom the rule was designed to offer protection.

[16]

Having
    determined that the deemed undertaking rule applied to some of the documents in
    issue, the motion judge turned his mind to whether Mr. Mamo should be relieved
    from the undertaking.  He cited the judgment of Binnie J. in
Juman v.
    Doucette
, 2008 SCC 8, [2008] 1 S.C.R. 157 to the effect that relief from
    the implied undertaking will only be granted in exceptional circumstances.
[1]
The onus is on the applicant to demonstrate to the court ... the existence of
    a public interest of greater weight than the values the implied undertaking is
    designed to protect, namely privacy and the efficient conduct of civil
    litigation.  Ibid at para. 32.

[17]

The
    motion judge concluded that he would dismiss the request for relief from the
    deemed undertaking for three reasons.  First, the deemed undertaking exists to
    protect Ms. Sobeskis privacy.  Her marital affairs fall within such
    protection.  Second, Mr. Mamo has not satisfied the court that he cannot make
    out his defence without the documents in issue.  He observed that some of the
    documents are not covered by the undertaking.  There are other means available
    to him to make his case such as the cross-examination of Mr. Sobeski at trial.
    He could also call Ms. Sobeski as a witness.  Third, Mr. Mamos status as a
    lawyer is important and relieving him from his deemed undertaking would not
    totally release him from his professional fiduciary duties to a former client.

[18]

Having
    concluded that Mr. Mamo was not entitled to be relieved from the deemed
    undertaking, the motion judge acknowledged at para. 50 of his reasons that this
    created a dilemma for Mr. Mamo:

Thus, Mr. Mamo confronts the apparent dilemma that he must
    honour the deemed undertaking, but in his affidavit of documents, he must
    disclose documents in his possession, control, or power and he must also
    disclose documents that were formerly in his possession, control, or power.

[19]

The
    motion judge then proposed what he described as an escape route for Mr. Mamo
    at para. 54 of his reasons:

The escape route for Mr. Mamo is for him to return Ms. Ionsons
    documents and property to her.  While he must disclose her documents, he cannot
    and he need not produce them for Mr. Sobeski.  The ultimate result is that in
    his affidavit of documents, Mr. Mamo should: (1) disclose and produce for
    inspection, the relevant documents that are not covered by the deemed
    undertaking; and (2) disclose but not produce for inspection the documents that
    have been returned to Ms. Ionson, which are the documents covered by the deemed
    undertaking.  Then, either party may, as they may be advised, bring a motion
    under rule 30.10 for an order for production from a non-party with leave.
    Either party may call Ms. Ionson as a witness at the trial.

[20]

In
    the result, the motion judge dismissed the motion.  However, the parties were
    unable to agree on the language of the formal order.  Counsel for Ms. Sobeski
    wanted the following paragraph included in the order:

2.       THIS COURT ORDERS AND DIRECTS that the Defendant,
      Alfred Mamo, forthwith deliver to Nynna Sobeski, also known as Nynna Ionson all
      her documents and property in his possession.

The parties returned to the motion judge to settle the
    order.

[21]

Counsel
    for Mr. Mamo submitted that on his motion he did not seek the relief requested
    in paragraph 2 and therefore it should not be included in the formal order.
    The motion judge rejected this submission and in supplementary reasons, stated
    at paras 5, 6, 7 and 8:

[5]      It is true that Mr. Mamo did not ask specifically for
      the relief that was granted to him.  He did, however, to quote from his notice
      of motion, seek Such other Order as this Honourable Court may deem just.

[6]      Rule 1.05 of the
Rules of Civil Procedure
provides that when making an order under these rules, the court may impose
      such terms and give such directions as are just.

[7]      In my opinion, paragraph 2 of the draft order is both
      necessary and just for the fair resolution of the litigation, and, as I explain
      in my Reasons for Decision, this direction provides a means for Mr. Mamo to
      fulfill his professional obligations to Ms. Ionson, which I add include
      returning her property to her, and also defend himself in the litigation
      brought by Mr. Sobeski and also comply with the
Rules of Civil Procedure
.

[8]      Pursuant to the jurisdiction provided by rule 1.05,
      paragraph 2 is a direction that is just in the circumstances of this case.

THE APPEAL

[22]

Counsel
    for Mr. Mamo asserts three grounds of appeal.

[23]

First,
    the motion judge failed to properly apply the test for providing relief from
    the deemed undertaking by failing to balance the competing interests of the
    parties in determining whether the interests of justice outweighed any
    prejudice that would result from the disclosure.

[24]

Second,
    the motion judge erred in referring to issues of solicitor/client
    confidentiality, privilege and other unspecified professional duties not
    apparent on the face of the records.  Counsel submitted that none of the
    documents were protected by solicitor/client privilege since they were produced
    to Mr. Sobeski in the matrimonial litigation.  Counsel also stated that nothing
    Ms. Sobeski said in confidence to Mr. Mamo was sought to be used.

[25]

Third,
    the motion judge erred in directing that the documents in issue should be
    returned to Ms. Sobeski.

ANALYSIS

(a)     Does the deemed undertaking rule apply to the circumstances
    of this case?

[26]

I
    start with the express language of rule 30.01.  The complete text of the rule
    is attached as an appendix to these reasons.

[27]

Before
    a court considers whether it should grant relief from the deemed undertaking
    pursuant to rule 30.1.01(8), it must first decide whether the deemed
    undertaking applies in the particular circumstances presented to the court.
    Rules 30.1.01(1), (2) and (3) provide:

APPLICATION

30.1.01

(1)
This
    Rule applies to,

(a) evidence obtained under,

(i)      Rule 30 (documentary discovery),

(ii)      Rule 31 (examination for discovery),

(iii)     Rule 32 (inspection of property),

(iv)     Rule 33 (medical examination),

(v)     Rule 35 (examination for discovery by written
    questions); and

(b)  information obtained from evidence referred to in clause
    (a). O. Reg. 61/96, s. 2; O. Reg. 627/98, s. 3.

(2)
This Rule does
    not apply to evidence or information obtained otherwise than under the rules
    referred to in subrule (1).  O. Reg. 61/96, s. 2.

Deemed Undertaking

(3)
All parties
    and their lawyers are deemed to undertake not to use evidence or information to
    which this Rule applies for any purposes other than those of the proceeding in
    which the evidence was obtained.  O. Reg. 61/96, s. 2; O. Reg. 575/07, s. 4.

[28]

The
    first question is: Did Mr. Mamo obtain Ms. Sobeskis documents under Rule 30
    (documentary discovery), Rule 31 (examination for discovery), Rule 32
    (inspection of property), Rule 33 (medical examination) and Rule 35
    (examination for discovery by written questions) as specified in rule
    30.1.01(1)(a)?

[29]

This
    question was not raised in either the written or oral submissions of the
    parties.  Indeed both parties proceeded on the basis that the deemed
    undertaking rule applied in this case.  After the oral argument, we invited
    counsel to address this question in writing.

[30]

Counsel
    for Mr. Mamo submitted that for the documents to be covered by the deemed
    undertaking, they must have been obtained under Rule 30 (documentary
    discovery).  Counsel further submitted that documentary discovery is a process
    by which one party to a proceeding discloses relevant documents to the other
    parties.  Mr. Mamo obtained Ms. Sobeskis documents from his client for the
    dominant purpose of her defence and not from another party in the matrimonial
    proceeding.

[31]

Counsel
    for Mr. Mamo also submits that limiting the application of the deemed
    undertaking accords with the common law rationalization for the rule as recognized
    by Morden A.C.J.O. in
Goodman v. Rossi
(1995), 24 O.R. (3d) 359 at
    para. 35 (C.A.) quoting
Prudential Assurance Co. v. Fountain Page Ltd.
,
    [1991] 1 W.L.R. 756 (Q.B.) at pp. 764-765:

The rational basis for the rule is that
where one party compels another
,
either
    by the enforcement of a rule of court or a specific order of the court
,
to disclose documents
or information
    whether that other wishes to or not, the party obtaining the disclosure is
    given this power because the invasion of the other partys rights has to give
    way to the need to do justice between those parties in the pending litigation
    between them; it follows from this that the results of such compulsion should
    likewise be limited to the purpose for which the order was made, namely, the
    purposes of that litigation then before the court between those parties and not
    for any other litigation or matter or any collateral purpose ... [italics in
    original; underlining added].

Counsel reasons that the production of documents by
    Ms. Sobeski to her own lawyer for the dominant purpose of proving her case was
    not contemplated by the common law implied undertaking and therefore the deemed
    undertaking in rule 31.1.01(3) should be viewed in the same way.  This of
    course differs from Mr. Mamos original position.

[32]

Counsel
    for Ms. Sobeski submits that Mr. Mamo obtained the documents under Rule 19 of
    the
Family Law Rules
that require a party to disclose to other parties
    documents relevant to any issue in the case, which is equivalent to Rule 30 of
    the
Rules of Civil Procedure
.  Counsel also observes that Rule 20 of
    the
Family Law Rules
,

which provides for oral discovery, is similar to an examination for
    discovery under Rule 31 of the
Rules of Civil Procedure
.  Some of the
    documents in issue were produced during the questioning process provided for in
    Rule 20 of the
Family Law Rules
.  As I understand this submission, Rules
    19 and 20 under the
Family Law Rules
are the equivalent of documentary
    and oral discovery under Rules 30 and 31 of the
Rules of Civil Procedure
and that a proper interpretation of the
Family Law Rules
19 and 20 is
    that the deemed undertaking ought to apply.

[33]

In
    my view, while the documents were provided to Mr. Mamo by Ms. Sobeski in
    connection with her retainer of Mr. Mamo in the matrimonial proceedings, they
    were not obtained by Mr. Mamo under rule 30.1.01(1)(a).  Rule 30.1.01(2)
    restricts the deemed undertaking to evidence or information obtained under rule
    30.1.01(1). As this court stated in
Kitchenham v. AXA Insurance (Canada)
,
    2008 ONCA 877, 94 O.R. (3d) 276, at para. 10, the Rule exists to protect the
    privacy interest of the party compelled by the rules of disclosure to provide
    that information
to another party
to the litigation (emphasis added).

[34]

I
    conclude from the above that on the basis of the express language of rule
    30.1.01(1) and (2), the deemed undertaking does not apply to Mr. Mamo in these
    circumstances.

[35]

As
    I have concluded that the deemed undertaking rule does not apply in the
    circumstances of this case, it is unnecessary for me to consider the first
    ground of appeal  whether the motion judge properly applied the test for
    providing relief pursuant to rule 30.1.01(8).  It is also unnecessary to
    consider the second ground of appeal concerning solicitor/client privilege and
    related issues.  Mr. Mamo only seeks to use the documents that were produced to
    Mr. Sobeski in the matrimonial proceedings not subject to solicitor/client
    privilege.  I now turn to the third ground of appeal  whether the motion judge
    erred in directing that the documents in issue should be returned to Ms.
    Sobeski.

(
b
)     Did the motion judge err in
    ordering that Mr. Mamo should return the documents to Ms. Sobeski?

[36]

The
    motion judge ordered that the documents should be returned to Ms. Sobeski as
    part of his plan to provide a means for Mr. Mamo to escape the dilemma of
    having to honour the deemed undertaking while, at the same time, having to
    disclose the documents in his affidavit of documents.  The so-called escape
    route also provided Mr. Mamo with the possibility that he could bring a motion
    for production of the documents under rule 30.10.

[37]

The
    return of the documents, as already noted, was not requested by Mr. Mamo in his
    notice of motion.  Surprisingly, there was no cross-motion by Ms. Sobeski for
    the return of the documents.  It was only when the motion judge devised the
    escape route that Ms. Sobeski, on the settlement of the order, sought an
    express provision for the return of the documents, which the motion judge
    granted.  Counsel for Mr. Mamo, both before the motion judge and on this appeal,
    takes the position that the motion judge was not entitled to grant relief that
    was not asked for.  He cites three cases of this court in support of that
    position:
Kalkinis (litigation guardian of) v. Allstate Insurance Co. of
    Canada
(1998), 41 O.R. (3d) 528 (C.A.);
Rodaro et al v. Royal Bank of
    Canada

et al
(2002), 59 O.R. (3d) 74 (C.A.) at paras. 60-61; and
Clarkson
    v. Lukovich
, [1988] O.J. 902 (C.A.).

[38]

In
    my view, the motion judge was not entitled, of his own motion, to devise a remedy
    that was not requested by either party to this dispute.  By doing so, the
    motion judge denied Mr. Mamo the fair opportunity to address that issue until
    the settlement of the order by way of written submissions, which in my view was
    too late: see
460635 Ontario Ltd. v. 1002953 Ontario Inc.
, (1999) 127 O.A.C. 48, at para. 9.  I would therefore set aside the order
    requiring Mr. Mamo to return the documents in issue to Ms. Sobeski.  However,
    in doing so I am mindful that Mr. Mamos retainer has been terminated and the
    documents in issue are the property of Ms. Sobeski.  I would therefore set
    aside the order of the motion judge, without prejudice to Ms. Sobeskis right
    to take the appropriate steps for the return of her documents, which to date
    she has not done, and without prejudice to Mr. Mamos right to bring the
    appropriate motion under rule 30.10 for the production of the documents for the
    purpose of this action.

disposition

[39]

In
    the result, I would allow the appeal and set aside the order of the motion
    judge.

Costs

[40]

This
    case was originally argued by both parties on the basis that the deemed
    undertaking rule applied.  In view of the fact that I would dismiss the appeal
    on the basis that the deemed undertaking rule does not apply, I would make no
    order as to costs of the appeal.  As to the costs before the motion judge, if
    the parties are not able to agree, they can make brief written submissions to the
    court.  The appellant is to make his submissions within 15 days of the release
    of this order and Ms. Sobeski may make her submissions within 10 days
    thereafter.  Such submissions shall be double spaced and limited to 5 pages.

Released:

AUG 28 2012                          Robert P.
    Armstrong J.A.

WKW                                     I agree W.K.
    Winkler, C.J.O.

I agree
    H.S. LaForme J.A.

APPENDIX

RULE 30.1 DEEMED UNDERTAKING

APPLICATION

30.1.01
(1)  This
    Rule applies to,

(a) evidence obtained under,

(i) Rule 30 (documentary discovery),

(ii) Rule 31 (examination for discovery),

(iii) Rule 32 (inspection of property),

(iv) Rule 33 (medical examination),

(v) Rule 35 (examination for discovery by written
      questions); and

(b) information obtained from evidence referred to in clause
      (a). O. Reg. 61/96, s. 2; O. Reg. 627/98, s. 3.

(2)  This
    Rule does not apply to evidence or information obtained otherwise than under
    the rules referred to in subrule (1). O. Reg. 61/96, s. 2.

Deemed Undertaking

(3)  All
    parties and their lawyers are deemed to undertake not to use evidence or
    information to which this Rule applies for any purposes other than those of the
    proceeding in which the evidence was obtained. O. Reg. 61/96, s. 2;
    O. Reg. 575/07, s. 4.

Exceptions

(4)  Subrule
    (3) does not prohibit a use to which the person who disclosed the evidence
    consents. O. Reg. 61/96, s. 2.

(5)  Subrule
    (3) does not prohibit the use, for any purpose, of,

(a) evidence that is filed with the court;

(b) evidence that is given or referred to during a hearing;

(c) information obtained from evidence referred to in clause
      (a) or (b). O. Reg. 61/96, s. 2.

(6)  Subrule
    (3) does not prohibit the use of evidence obtained in one proceeding, or
    information obtained from such evidence, to impeach the testimony of a witness
    in another proceeding. O. Reg. 61/96, s. 2.

(7)  Subrule
    (3) does not prohibit the use of evidence or information in accordance with
    subrule 31.11 (8) (subsequent action). O. Reg. 61/96, s. 2.

Order that Undertaking does not Apply

(8)  If
    satisfied that the interest of justice outweighs any prejudice that would
    result to a party who disclosed evidence, the court may order that subrule (3)
    does not apply to the evidence or to information obtained from it, and may
    impose such terms and give such directions as are just. O. Reg. 61/96,
    s. 2; O. Reg. 263/03, s. 3.

[1]

Juman
is a British Columbia case and it was the common
    law implied undertaking that was in issue in that case.


COURT OF APPEAL FOR ONTARIO

CITATION:
Taylor v. Canada
    (Attorney General), 2012 ONCA 550

DATE:  20120823

DOCKET: C53678

Doherty, Weiler, Laskin, Sharpe and Armstrong
    JJ.A.

BETWEEN

Kathryn Anne Taylor

Plaintiff

and

The Attorney General of Canada

Defendant

Kirk Baert and Celeste Poltak, for the plaintiff

P.J. Evraire, Q.C., Gina M. Scarcella and James M.
    Soldatich, for the defendant

Cameron Pallett and Reynold Robertson, for the
    intervener, Bill Sauer

Heard: September 19, 2011

A proceeding under Rule 22.03 to determine a special case
    stated by order of Armstrong J.A. dated March 4, 2011, with reasons reported at
2011 ONCA 181
.

COSTS
    ENDORSEMENT

[1]

In
    our decision on this appeal, released on July 6, 2012, we ruled in favour of
    Ms. Taylor and invited the parties to file written submissions as to the costs
    of this special case.

[2]

We
    have been advised that the parties have reached a consensus that Ms. Taylor
    should receive her costs fixed in the amount of $15,000 inclusive of taxes and
    disbursements, payable forthwith by Canada.  We agree with this disposition as
    to costs and so order.

Doherty J.A.

K.M. Weiler J.A.

John Laskin J.A.

Robert J. Sharpe J.A.

Robert P. Armstrong J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Tuchenhagen v. Mondoux, 2012
    ONCA 567

DATE: 20120830

DOCKET: M41619 (C55124)

Goudge, Gillese and Armstrong JJ.A.

BETWEEN

Robert Tuchenhagen

Appellant (Responding Party)

and

Gilles Mondoux

Respondent (Moving Party)

Chantelle J. Bryson, for the responding party

Rene E. Larson and Sergiel P. Ettinger, for the moving
    party

Heard and released orally: August 21, 2012

On motion to quash the appeal from the order of the
    Divisional Court (Wilson, Gordon and Lederer JJ.), dated October 26, 2012.

ENDORSEMENT

[1]

The respondent elector seeks to quash the appeal of the appellant member
    who was found to be in conflict of interest by the Superior Court. The
    Divisional Court, by majority, upheld that decision. Leave was granted to
    appeal to this court.

[2]

The respondent bases his argument on s. 11(2) of the
Municipal
    Conflict of Interest Act
, R.S.O. 1990, c. M50 (
MCIA
) and the
    jurisprudence of this court about it. Section 11(2) reads as follows:

The Divisional Court may give any judgment that ought
    to have been pronounced, in which case its decision is final, or the Divisional
    court may grant a new trial for the purpose of taking evidence or additional
    evidence and may remit the case to the trial judge or another judge and,
    subject to any directions of the Divisional Court, the case shall be proceeded
    with as if there had been no appeal.

[3]

In
Ruffolo v. Jackson
, 2010 ONCA 472, s. 11(2) was found
    to provide a complete code for appeals of decisions under the
MCIA
.
    The recent decision of
Amaral v. Kennedy
,
2012 ONCA 517, [2012] O.J.
    No. 3572,
reiterates that conclusion.

[4]

The appellant seeks to argue that s. 11(2) renders final certain
    decisions, namely those of the Divisional Court that are within jurisdiction
    and legally correct, but only those decisions. The appellant also argues that
    the reading proposed by the respondent risks leaving in place an unjust
    Divisional Court decision.

[5]

We do not agree with this approach to s. 11(2). We are bound by the
    decisions of this court that final in s. 11(2) means final, and that no
    appeal lies to this court from the Divisional Court under s. 11 of the
MCIA
.
    Indeed, we agree with that position. The legislature has chosen in s. 11(2) to
    permit a member only an appeal to the Divisional Court, but no further.
    Therefore, regardless of the possible merits of the appeal itself we are
    prevented from hearing it by the legislation itself.

[6]

The appeal is therefore quashed. Given the costs order in the Divisional
    Court and the fact that this issue was not clearly raised on the leave
    application, costs to the respondent in the amount of $5000, inclusive of
    disbursements and applicable taxes.

S.T.
    Goudge J.A.

E.E. Gillese J.A.

Robert
    P. Armstrong J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541

DATE: 20120820

DOCKET: C54339

OConnor A.C.J.O., Laskin and Cronk JJ.A.

BETWEEN

Oleg Volochay

Applicant (Respondent)

and

College of Massage Therapists of Ontario

Respondent (Appellant)

Peter J. Osborne and Ian MacLeod, for the appellant

Robert C. Morrow, for the respondent

Heard: December 16, 2011

On appeal from the judgment of Justice Lynn D. Ratushny
    of the Divisional Court, dated March 29, 2011, with reasons reported at 2011
    ONSC 2225.

Laskin
    J.A.:

A.

introduction

[1]

The overriding question on this appeal is whether the application judge was
    wrong in principle to grant judicial review and quash two decisions of the
    Colleges investigatory bodies.

[2]

Oleg Volochay is a massage therapist and a member of the College of Massage
    Therapists of Ontario.  In July 2008, a former female patient complained to the
    Registrar of the College that she and Volochay had engaged in sexual
    intercourse while she was a patient  conduct that is prohibited by the
Health
    Professions Procedural Code
and attracts a penalty of loss of certificate
    to practice for a minimum of five years.

[3]

The Colleges Complaints Committee investigated the complaint.  However,
    in breach of the requirements of the Code, Volochay was not given notice of the
    complaint or an opportunity to make written submissions to the Committee.  In
    April 2009, the Complaints Committee decided to refer the matter to the
    Colleges Executive Committee to consider a full investigation of Volochays
    practice.  It made its decision without ever telling Volochay the substance of
    the allegations against him or giving him a chance to refute the allegations.

[4]

In November 2010, 19 months after the decision of the Complaints
    Committee, its successor body, the Inquiries, Complaints and Report Committee
    (ICRC) appointed an investigator to inquire into and examine Volochays
    practice.

[5]

Ratushny J. granted Volochays judicial review application and quashed
    the initial decision of the Complaints Committee on the ground that the College
    violated its statutorily mandated procedures and did not comply with the
    most basic principles of natural justice and procedural fairness.  She also
    quashed the later decision to appoint an investigator on the ground that it was
    simply a ratification of the initial decision.  She concluded that the issue
    before her was a true question of jurisdiction and that the College had violated
    its statutory authority to proceed, rendering its proceeding on the complaint a
    nullity.

[6]

On its appeal, the College contends that the court ought not to have
    intervened before the administrative proceedings under the Code had run their
    course.  In support of this contention, the College advances three submissions:

(1)

The application judge erred in holding that the Colleges  failure to
    give Volochay notice of the complaint raised a true question of jurisdiction;

(2)

No exceptional circumstances justified judicial review before the
    College proceedings were completed, especially because Volochay had an adequate
    alternative remedy, a review before the Health Professions Appeal and Review
    Board (HPARB), which he declined to exercise; and

(3)

Volochays egregious conduct after the complaint was made disentitled
    him to relief.

[7]

Before outlining the facts that put these submissions in context, I will
    set out the regulatory framework that governs this case.

B.

Regulatory framework

[8]

The College of Massage Therapists is a self-regulating body for the
    practice of massage therapy in Ontario.  Like other health professions in
    Ontario, it is subject to the
Regulated Health Professions Act
,
1991
,
    S.O, 1991, c. 18, and the
Health Professions Procedural Code
, which is
    Schedule 2 to the Act.

[9]

The Code establishes the procedural framework for registration, complaints
    and discipline.
[1]
Section 3(1) sets out the objects of the Code, one of which is to regulate the
    practice of the profession and to govern its members in accordance with the Act
    and the Code.  Section 3(2) stipulates that [i]n carrying out it objects, the
    College has a duty to serve and protect the public interest.

Sexual Intercourse With a Patient is Professional Misconduct

[10]

A
    member who sexually abuses a patient commits an act of professional
    misconduct.  Sexual abuse includes sexual intercourse, even if consensual,
    between a patient and a member.  The penalty for sexual abuse involving intercourse
    is revocation of the members certificate to practice.  The member cannot apply
    for reinstatement for five years: see Code ss. 1(3), 51(5) and 72(3); and
Leering
    v. College of Chiropractors of Ontario
, 2010 ONCA 87, 98 O.R. (3d) 561.

Complaints by Members of the Public

[11]

The
    Complaints Committee, now the ICRC, has the statutory authority to investigate
    and take action on a complaint.  The Committee performs a screening function:
    it determines whether the complaint should go forward to a discipline hearing
    or for other action.  Sections 25(1) and (2) of the Code provide:

25(1) A complaint filed with the Registrar
    regarding the conduct or actions of a member shall be investigated by a panel
    selected by the chair of the Complaints Committee from among the members of the
    Committee.

(2)  A panel shall be composed of at least
    three persons, at least one of whom shall be a person appointed to the Council
    by the Lieutenant Governor in Council.

[12]

Section
    25(5) is a key provision on this appeal.  It states:

The Registrar shall give the member who is the
    subject of a complaint notice of the complaint and of the provisions of
    subsection 26(1).

Volochay was not given notice of the complaint, as
    required by this provision.

[13]

The
    purpose of the notice provision is to give the member the right to make written
    submissions to the Committee.  Section 26(1) states:

A member who is the subject of a complaint may make
    written submissions to the panel within thirty days after receiving notice
    under subsection 25(5).

Volochay was not afforded the right to make
    submissions to the Complaints Committee.

[14]

The
    powers of a Committee investigating a complaint are set out in s. 26(2).  In exercising
    these powers the Committee must consider the submissions of the member.
    Section 26(2) states:

26(2) A panel, after investigating a complaint
    regarding the conduct or actions of a member, considering the submissions of
    the member and considering or making reasonable efforts to consider all records
    and documents it considers relevant to the complaint, may do any one or more of
    the following:

1. Refer a specified allegation of the members
    professional misconduct or incompetence to the Discipline Committee if the
    allegation is related to the complaint.

2. Refer the member to the Executive Committee for
    incapacity proceedings.

3. Require the member to appear before the panel
    or another panel of the Complaints Committee to be cautioned.

4. Take action it considers appropriate that is
    not inconsistent with the health profession Act, this Code, the regulations or
    by-laws

In this case, without any submissions from Volochay,
    the Committee acted under s. 26(2)4: it referred the matter to the Executive Committee
    of the College to consider a full investigation of Volochays practice.  The
    application judge quashed this decision.

[15]

Under
    s. 26(5) the Committee, after considering the written submissions of the
    complainant and the member, shall take no action on a complaint where it is
    satisfied that the complaint is frivolous, vexatious, made in bad faith or otherwise
    an abuse of process.

[16]

Section
    28(1) provides for the timely disposal of complaints.  The Committee is required
    to dispose of a complaint within 120 days after it has been filed (although
    this time may be extended).  In this case, the Committee took nine months to
    dispose of the complaint against Volochay.  However, the length of time the Committee
    took to deal with the complaint is not in issue on this appeal.

Section 75 Investigations

[17]

Section
    75 of the Code provides for three circumstances in which the Registrar can
    appoint an investigator to determine whether a member has committed an act of
    professional misconduct:

75. The Registrar may appoint one or more
    investigators to determine whether a member has committed an act of
    professional misconduct or is incompetent if,

(a) the Registrar believes on reasonable and
    probable grounds that the member has committed an act of professional
    misconduct or is incompetent and the Executive Committee approves of the
    appointment;

(b) the Executive Committee has received a report
    from the Quality Assurance Committee with respect to the member and has
    requested the Registrar to conduct an investigation; or

(c) the Complaints Committee has received a
    written complaint about the member and has requested the Registrar to conduct
    an investigation.

[18]

In
    this case, in September 2008, at the request of the Complaints Committee, the Registrar
    appointed an investigator under s. 75(c) of the Code.  In November 2010, an
    investigator was appointed under s. 75(a) of the Code to examine Volochays
    practice.  The application judge also quashed the November 2010 decision
    appointing an investigator.

Reviews and Appeals

[19]

Under
    s. 29(2) of the Code, Volochay had the right to ask the HPARB to review the Complaints
    Committees decision to refer the matter to the Executive Committee.

29(2) The complainant or the member who is the
    subject of the complaint may request the Board to review a decision of a panel
    of the Complaints Committee unless the decision was,

(a) to refer an allegation of professional
    misconduct or incompetence to the Discipline Committee; or

(b) to refer the member to the Executive Committee
    for incapacity proceedings.

[20]

Volochay
    asked for a review and then withdrew his request.  Section 30(1) states:

30(1) The Board shall not review a decision if
    the party who requested the review withdraws the request and the other party
    consents.

[21]

Section
    33(1) specifies that the HPARB may consider both the adequacy of the
    investigation and the reasonableness of the decision.

33(1) In a review, the Board shall consider
    either or both of,

(a) the adequacy of the investigation conducted;
    or

(b) the reasonableness of the decision.

[22]

Section
    35(1) sets out the powers of the HPARB:

After conducting a review of a decision, the Board
    may do any one or more of the following:

1. Confirm all or part of the decision.

2. Make recommendations the Board considers
    appropriate to the Complaints Committee.

3. Require the Complaints Committee to do anything
    the Committee or a panel may do under the health profession Act and this Code
    except to request the Registrar to conduct an investigation.

[23]

Review
    decisions of the HPARB may be appealed to the Divisional Court on a question of
    law or fact.  Section 70 of the Code states:

70(1) A party to proceedings before the Board
    concerning a registration hearing or review or to proceedings before a panel of
    the Discipline or Fitness to Practise Committee, other than a hearing of an
    application under subsection 72 (1), may appeal from the decision of the
    Board or panel to the Divisional Court.

(2)  An appeal under subsection (1) may be
    made on questions of law or fact or both.

(3)  In an appeal under subsection (1), the
    Court has all the powers of the panel that dealt with the matter and, in an
    appeal from the Board, the Court also has all the powers of the Board.

C.

additional relevant background

(a)

The Respondent Oleg Volochay

[24]

The
    respondent has been a registered massage therapist and a member of the College
    since December 2005.  He practises in Ottawa.  He is married and has one child,
    a son.

(b)

The Complaint

[25]

S.D.
    was one of Volochays patients.  She received massage therapy treatments from
    him for nearly four years  from September 2004 to June 2008.

[26]

In
    July 2008, she sent a written complaint to the College.  She alleged that for
    nearly a year  between August 2005 and July 2006  she and Volochay had a
    sexual relationship, which included consensual sexual intercourse.  After the
    sexual relationship, S.D. continued to receive massage therapy treatments from
    Volochay for nearly two years.

[27]

In
    his affidavit sworn in support of his judicial review application, Volochay
    denied S.D.s allegations of sexual impropriety.  He said that her complaint was
    both false and defamatory.

(c)

The Complaints Committees Investigation and
S.
D
.
s Withdrawal of her Complaint

[28]

The
    Complaints Committee investigated the complaint.  It asked the Registrar to
    appoint an investigator under s. 75(c) of the Code.  The Registrar did so in
    early September 2008.

[29]

The
    investigator met with S.D.  She also advised Volochay that a complaint had been
    made against him, but did not disclose either the identity of the complainant
    or the nature of the allegations.  On September 21, 2008, S.D. sent an email to
    the College withdrawing her complaint against Volochay.  She said that I do
    not believe Mr. Volochay should lose his licence or be penalized because of our
    personal relationship.  His treatments as a massage therapist were always
    professional and he never behaved inappropriately.  The College, however,
    claims that Volochay pressured S.D. to withdraw her complaint.

[30]

Nonetheless,
    because S.D. had withdrawn her complaint, the College investigator was
    instructed not to serve Volochay with notice of the complaint.  And, in fact,
    Volochay never was served. Nor did the College ever tell him the nature of the
    complaint.  Indeed, in a reporting memorandum, a College investigator said that
    Volochay was not aware of the Colleges ongoing investigation and that what
    was shared between S.D. and the College would remain confidential until the
    very end.

[31]

On
    September 23, 2008, the College wrote to Volochay to advise him that the
    complainant wished to withdraw the complaint.  The letter also said that a
    panel of the Complaints Committee will need to review this information to
    confirm the withdrawal of the complaint.  This was the last correspondence
    that Volochay received from the College until the decision of the Complaints
    Committee in April 2009.

[32]

Meanwhile,
    at a meeting in early January 2009, S.D. refused to cooperate with the
    Colleges investigator.  And apparently the College has not heard from her
    since that time.

(d)

The Decision of the Complaints Committee, April
    2009

[33]

The
    Complaints Committee concluded that it retains jurisdiction to investigate a
    complaint, even when the complaint has been withdrawn.  It determined that the
    allegations were serious and constituted acts of professional misconduct.  The Committee
    also expressed concerns about S.D.s allegation that Volochay had threatened
    her during the currency of their personal relationship.  The Committee observed
    that this additional information provided in the complaint, but not forming
    part of the allegations, may be suggestive of a pattern of behaviour with
    serious public interest implications.

[34]

The
    Committee concluded its decision as follows:

It is noted that the Registrar with the approval of the
    Executive Committee can commence an investigation pursuant to Section 75(a) of
    the
Code
where information is received by the College which
    establishes reasonable and probable grounds for the Registrar that a member has
    committed an act of professional misconduct or may be incompetent.  In this
    regard, the panel has determined that this matter will be referred to the
Executive Committee for their consideration in terms of a full investigation
    inquiring into the practice of the member given the seriousness of the
    allegations involved and the public interest concerns.

[35]

Nowhere
    in its decision did the Committee advert to its obligation under s. 25(5) of
    the Code to give Volochay notice of the complaint or to its failure to give him
    an opportunity to make written submissions to the Committee.

(e)

Volochay Asks for and then Withdraws his Request
    for a Review Before
the
HPARB

[36]

Volochay
    received a copy of the decision of the Complaints Committee in late April
    2009.  In May 2009, his lawyer (not Mr. Morrow) requested a review of the
    decision of the Complaints Committee.  This review was scheduled for November 19,
    2010.  However, in August 2010, his lawyer gave the HPARB notice that Volochay
    was withdrawing his request for a review without prejudice to his right to
    contest or dispute the complaint.  The College did not object to Volochays withdrawal
    of his request.

[37]

In
    September 2010, Mr. Morrow wrote the College asking that S.D.s complaint be
    dismissed.

(f)

The Decision to Appoint an Investigator Under
    Section 75(a) of the Code

[38]

The
    College refused to dismiss the complaint.  Instead, on November 30, 2010, it
    wrote Volochays counsel to advise him that an investigator had been appointed
    under s. 75(a) to inquire into and examine the practice of Mr. Volochay.
    This was the investigation contemplated in the decision of the Complaints Committee
    19 months earlier.

(g)

Decision of the Divisional Court

[39]

Volochay
    sought judicial review and asked for leave under s. 6(2) of the
Judicial
    Review Procedure Act
, R.S.O. 1990, c. J-1, to have his application heard
    before a single judge of the Divisional Court on the ground of urgency.  He asked
    that both the April 16, 2009 decision of the Complaints Committee and the
    November 2010 decision appointing an investigator under s, 75(a) of the Code be
    quashed.  Leave was granted and the application judge quashed both decisions.
    She wrote at paras. 33-34:

In addition to violating its statutorily mandated procedures,
    the respondent did not comply with the most basic of principles of natural
    justice and procedural fairness during its investigation and before coming to a
    decision.  It gave the applicant no notice of the allegations and no
    opportunity to answer and defend them during the investigation process and
    before the First Decision was made.

The Second Decision is simply a ratification of the First
    Decision, relying again on an investigation and process that violated the
    applicants right to procedural fairness.

[40]

She
    observed at para. 31:

While the applicant did receive notice in September 2008 that
    there was a complaint and then later that it had been withdrawn, the evidence
    is that he never did receive notice of its subject matter or its specific
    allegations.  In the respondents concern for the complainant and her interests
    and safety, the applicants interests including his right to notice of the
    complaint and to make written submissions on it appear to have been passed over
    and forgotten.

[41]

She
    also rejected, at para. 35, the suggestion that Volochay had notice of the
    complaint because he had caused S.D. to withdraw it.

It is no answer to say that the applicant had actual notice of
    the complaint because he had caused the complainant to withdraw it in September
    2008.  The matter of the withdrawal is part of the complainants side of the
    story that the applicant should have had the opportunity to answer as part of
    the respondents investigation.  To attribute notice to him of a fact he denies
    but has not been given the opportunity to deny cannot be deemed to amount to
    any notice whatsoever.

[42]

The
    application judge acknowledged that judicial review is discretionary and
    absent exceptional circumstances, administrative proceedings before
    administrative tribunals should not be fragmented until there is a full record
    and the administrative proceeding has come to an end (citation omitted).
    However, in her view, the College had acted without jurisdiction so that its proceedings
    to date in respect to the complaint are a nullity.

[43]

She
    viewed the issue before her as a true question of jurisdiction.  The process
    violated the Colleges statutory authority to proceed; it violated the Colleges
    duty to proceed fairly; and it violated Volochays right to procedural
    fairness.  Finally, that Volochays right to continue his profession and his employment
    were at stake, was fundamental to a consideration of the fairness of the
    process.

[44]

In
    September 2011, a panel of this court granted leave to appeal from the
    application judges decision.

D.

analysis

[45]

As
    I said at the outset, the question on this appeal is whether the application
    judge was wrong in principle in exercising her discretion to grant judicial
    review and quash the Colleges decisions of April 2009, and November 2010.
    Four points assist to put this question in context.

[46]

First,
    I agree with the application judge that the College was entitled to continue to
    investigate S.D.s complaint even though she had withdrawn it.  The College has
    a statutory mandate to serve and protect the public interest.  It need not stop
    an investigation because the complainant no longer wishes to proceed,
    especially where it believes that a member may have influenced the withdrawal
    of the complaint.

[47]

That
    leads to my second point: Having decided to proceed with its investigation, the
    College could not ignore its statutory obligations and the duty of fairness it owed
    to Volochay.  But, as the application judge found, that is precisely what the College
    did. It breached the rules of natural justice and its own statutory obligations
    when it failed to give Volochay notice of the complaint and an opportunity to
    make written submissions to the Complaints Committee, before the Committee made
    its April 2009 decision.

[48]

Adequate
    notice is a fundamental component of fairness at common law.  It ensures that individuals
    affected by a decision have sufficient information and a reasonable opportunity
    to answer the case against them.  Section 25(5) of the Code, which required the
    Registrar to give Volochay notice of the complaint, codifies this rule of
    natural justice and statutorily imposes a duty of procedural fairness on the
    College, even at the investigatory stage of its processes.  That it does so no
    doubt reflects the potentially serious consequences for a member who is under
    investigation.

[49]

Moreover,
    the College could not avoid its statutory duties by suggesting that Volochay
    knew what the complaint was about.  He says otherwise, and even if he did know
    something about it, the Colleges duty in s. 25(5) is unqualified.

[50]

Third,
    the Colleges decision in November 2010, to appoint an investigator to inquire
    into Volochays practice was tied to the Complaints Committees decision in
    April 2009.  That is evident from the Complaints Committees reasons, which
    contemplated the appointment of an investigator under s. 75(a) of the Code.
    The application judge fairly concluded that the November 2010 decision
    effectively ratified the April 2009 decision.  In oral argument, counsel for
    the College acknowledged that if the April 2009 decision of the Complaints Committee
    was quashed, the November 2010 decision appointing an investigator could not
    survive.

[51]

The
    record shows that the Registrar also appointed an investigator under s. 75(c)
    of the Code.  That appointment was made in September 2008 at the request of the
    Complaints Committee.  The record is unclear when that investigation ended.
    However, I think a reasonable conclusion is that it ended when the Complaints Committee
    rendered its decision in April 2009.

[52]

The
    last point is that judicial review is a discretionary remedy.  An appellate
    court must defer to the exercise of that discretion unless the conclusion is
    unreasonable or has been reached on the basis of an irrelevant or extraneous
    consideration,
a wrong principle
, or as a result of insufficient or no
    weight having been given to a relevant consideration (emphasis added): see
Canadian

Pacific Ltd. v. Matsqui Indian Band
, [1995] 1 S.C.R. 3, per Sopinka
    J., at para. 112.

[53]

Thus,
    I return to the question whether the application judge exercised her discretion
    on a wrong principle when she granted judicial review.  In contending that she
    did so, the College makes two main points.  First, the application judge erred in
    principle by characterizing the issue before her as a true question of
    jurisdiction.  And second, she erred in principle by failing to find that
    Volochay had an adequate alternative remedy  a review before the HPARB  and instead
    holding that the denial of procedural fairness to Volochay was an exceptional
    circumstance justifying judicial intervention before the College proceedings
    were completed.

(a)

True Question of
    Jurisdiction
?

[54]

The
    application judge concluded that whether the College breached its duty of
    procedural fairness was a true question of jurisdiction, and that the
    Colleges breach rendered its action on the complaint a nullity.  She held that
    the College did not have the statutory authority to investigate without
    according the applicant the right to respond.  This was an exceptional
    circumstance justifying judicial review even though the proceedings before the
    College had not been completed.

[55]

The
    College submits that the application judge erred in characterizing the question
    as one of jurisdiction and that judicial intervention was not justified on that
    basis.  I agree with this submission.

[56]

As
    the application judge acknowledged, the phrase true question of jurisdiction
    comes from the Supreme Court of Canadas decision in
Dunsmuir v. New
    Brunswick
, 2008 SCC 9, [2008] 1 S.C.R. 190.  In that case, and those that
    followed, the Supreme Court reconsidered and, arguably, narrowed the scope of a
    question of true jurisdiction: see
Smith v. Alliance Pipeline Ltd.
, 2011
    SCC 7, [2011] 1 S.C.R. 160;
Canada (Canadian Human Rights Commission) v.
    Canada (Attorney General)
, 2011 SCC 53, [2011] 3 S.C.R. 471; and,
Alberta
    (Information and Privacy Commissioner) v. Alberta Teachers Association
,
    2011 SCC 61, [2011] 3 S.C.R. 654.  Under this line of authorities, a true
    question of jurisdiction now refers to whether the tribunal had authority to
    make the inquiry in the first place: see
Dunsmuir
, at para. 59.

[57]

Is
    a question of procedural fairness a true question of jurisdiction in the
Dunsmuir
sense?  The strongest support for the application judges conclusion comes from
    the powerful dissenting reasons of Dickson J. in
Harelkin v. University of
    Regina
, [1979] 2 S.C.R. 561.  There, he characterized a breach of the
    rules of natural justice as an error going to jurisdiction or closely akin to
    a jurisdictional error.

[58]

However,
    the prevailing view, reflected in the majority reasons of Beetz J. in
Harelkin
,
    and in later cases, is that a question of procedural fairness or natural
    justice is not a true question of jurisdiction in the narrow sense that phrase
    is used in
Dunsmuir
.  Whether a tribunal breached its duty of fairness
    is not relevant to whether it had authority to begin its inquiry.  A breach of
    the duty of fairness only arises after the inquiry has lawfully begun.  Though a
    tribunal that breaches its duty of fairness may be said to have abused or
    exceeded its jurisdiction, this is not the same thing as having no jurisdiction
    to even start an inquiry: see for example
Toronto Hydro Electric System
    Ltd. v. Ontario (Energy Board)
, 2010 ONCA 284, 99 O.R. (3d) 481;
Service
    Employees International Union Local No. 333 v. Nipawin District Staff Nurses
    Association
, [1975] 1 S.C.R. 382, at p. 389.

[59]

Thus,
    I do not agree with the application judges holding that because the Complaints
    Committee did not give Volochay notice of the complaint and the right to
    respond, it did not have the statutory authority to investigate.  Her holding
    would turn the notice requirement in s. 25(5) of the Code into a pre-condition
    to the Committees jurisdiction.  However, s. 25(5) is simply a statutory
    codification of an affected partys right to procedural fairness or natural
    justice.  It is not a provision that goes to the Committees jurisdiction to
    investigate a complaint.

[60]

Accordingly,
    the application judge was wrong in principle to characterize the question
    before her as a true question of jurisdiction.  But, more importantly, even
    if her characterization were correct, it does not follow that early judicial review
    was justified solely on that basis.

(i)

Jurisdictional defects and early judicial review

[61]

Whether
    a question is one of true jurisdiction is relevant to determining the
    appropriate standard of review of a tribunals decision.  True questions of
    jurisdiction invite review on a standard of correctness, not reasonableness.
    However, characterizing a question as one of true jurisdiction does not
    determine whether early judicial intervention is warranted.

[62]

Admittedly,
    there is case law from this court suggesting that early judicial review is automatically
    available for jurisdictional defects, even defects arising from a denial of
    natural justice.  For example, in
Howe v. Institute of Chartered
    Accountants of Ontario
(1994), 19 O.R. 483, Finlayson J.A., writing for
    the majority, said:

I think it is trite law that the court will only interfere with
    a preliminary ruling made by an administrative tribunal where the tribunal
    never had jurisdiction or has irretrievably lost it:  see
Re Gage and
    Attorney General for Ontario
(1992), 90 D.L.R. (4th) 537 (Div. Ct.) and
Re
    Roosma and Ford Motor Co.
(1988), 53 D.L.R. (4th) 90 (Div. Ct.).  In
Gage
,
supra
, the court found that the failure of the board of inquiry to
    provide a policeman with timely written notice of its decision to order a
    hearing into a complaint regarding his behaviour, pursuant to its statutory
    obligation, was a denial of natural justice which resulted in a loss of
    jurisdiction.  In
Roosma
,
supra
, the court held that judicial
    review was open to challenge proceedings tainted with a fatal jurisdictional
    defect at the outset even where an appeal was provided: at p. 490.

[63]

However,
    in my view, this passage has been overtaken by Supreme Court of Canada
    jurisprudence and no longer reflects the governing law. The passage relies on
    lower court authorities and makes no reference to
Harelkin
. Moreover,
    the court did not have the benefit of the Supreme Courts reasons in
Matsqui
.
    These cases show that neither a breach of natural justice nor a question of
    true jurisdiction entitles an aggrieved party to automatic access to the
    courts.
owe

[64]

In
Harelkin
the

majority held that the court should exercise its
    discretion to refuse judicial review for a breach of natural justice if the
    aggrieved individual  there a student  had an adequate alternative remedy
    there an internal appeal.  In so holding, the majority said that a decision
    made in breach of the rules of natural justice is not a nullity, as the
    application judge held in the present case, but is curable on appeal.

[65]

The
    more significant case is
Matsqui
.
Matsqui
was decided after
Howe
.
    It affirmed
Harelkin
and extended its reach to true questions of
    jurisdiction.  Canadian Pacific challenged assessments levied by Indian bands
    on land on which its railways ran.  The company contended that the land was not
    in the reserve and thus not within the taxing authority of the bands.
    Instead of raising this issue before the various tribunals established under
    the legislation to hear assessment appeals, Canadian Pacific went to court and
    sought judicial review of the initial assessments.  The trial judge denied
    relief on the ground that Canadian Pacific had resort to an adequate
    alternative remedy.

[66]

All
    members of the court accepted that the issue was jurisdictional  a true
    question of jurisdiction in the
Dunsmuir
sense. Relying on
Harelkin
,
    Lamer C.J.C. for the majority of the court held that despite the jurisdictional
    nature of the inquiry, Canadian Pacific did not have automatic access to the
    court. The court maintained discretion to refuse to deal with the issue because
    the internal appeals provided an adequate alternative remedy that ought to have
    been pursued. It was therefore not an unreasonable exercise of the trial
    judges discretion to deny relief.
[2]

[67]

In
C.B. Powell Limited v. Canada (Border Services Agency)
, 2010 FCA 61, [2011]
    F.C.R. 332, at para. 42, Stratas J.A. of the Federal Court of Appeal commented that
    the use of the label jurisdiction to justify judicial interference with
    ongoing administrative decision making processes is no longer appropriate.  I
    agree.  Even a true question of jurisdiction is not, by itself, an exceptional
    circumstance justifying judicial review before administrative proceedings are
    completed.  A jurisdictional ground of review does not, standing alone,
    deprive a reviewing court of its discretion to refuse relief.

(b)

Alternative Remedies and Exceptional
    Circumstances?

[68]

The
    application judge recognized the principle that unless exceptional
    circumstances exist, a court should not interfere in an administrative
    proceeding until it has run its course.  The principle has particular force
    where adequate alternative remedies are available under the administrative
    scheme.  Ordinarily an affected individual must pursue these remedies before
    seeking relief from the court.

[69]

The
    rationales for this principle are well known.  The principle respects
    administrative decision-making and the legislatures intent that internal
    review processes be exhausted before the court intervenes.  At the same time,
    the principle preserves the right of the court to intervene in those
    exceptional circumstances where the justice of the case calls for
    intervention.  Stratas J.A. summarized the rationales for the principle in
C.B.
    Powell
at paras. 31-32, and I can do no better than quote his words:

Put another way, absent exceptional
    circumstances, courts should not interfere with ongoing administrative
    processes until after they are completed, or until the available, effective
    remedies are exhausted.

This prevents fragmentation of the administrative
    process and piecemeal court proceedings, eliminates the large costs and delays
    associated with premature forays to court and avoids the waste associated with
    hearing an interlocutory judicial review when the applicant for judicial review
    may succeed at the end of the administrative process anyway. Further, only at
    the end of the administrative process will a reviewing court have all of the
    administrative decision-makers findings; these findings may be suffused with
    expertise, legitimate policy judgments and valuable regulatory experience. Finally,
    this approach is consistent with and supports the concept of judicial respect
    for administrative decision-makers who, like judges, have decision-making
    responsibilities to discharge. [Citations omitted.]

See also David J. Mullan,
Administrative Law
(Toronto: Irwin Law, 2001) at pp. 485-494 and
Ackerman v. Ontario
    (Provincial Police)
, 2010 ONSC 910, 259 O.A.C. 163 (Div. Ct.).

[70]

In
    my  view, this principle applies even though s. 2(1) of the
Judicial Review
    Procedure Act
provides that an application for judicial review may be
    brought despite any right of appeal to either an administrative tribunal or
    to the court.  The ability to bring an application for judicial review does not
    compel the court to undertake judicial review - exceptional circumstances are
    still required to justify early intervention.

[71]

The
    College submits that Volochay had an adequate alternative remedy available to
    him  a review before the HPARB  which he declined to exercise.  As he did not
    pursue this remedy, and there were no exceptional circumstances to otherwise
    justify early judicial review, the application judge was wrong in principle to
    quash the Colleges decisions of April 2009, and November 2010.  I agree with this
    submission.

(i)

Was a review by
the
HPARB
    an adequate alternative remedy?

[72]

Because
    the application judge concluded that the Colleges breach of natural justice
    rendered the proceedings a nullity, she did not consider the effect of Volochays
    decision not to proceed with a review before the HPARB.  However, the
    application judge erred in her conclusion.  The Colleges breach of natural
    justice did not render its investigation a nullity.  Thus, if a review of the
    Complaints Committees decision was an effective or adequate alternative
    remedy, then absent exceptional circumstances, early judicial review was not
    appropriate.

[73]

To
    be an effective or adequate remedy, the defect alleged  here a denial of
    procedural fairness  must be capable of being raised before the reviewing body,
    and the reviewing body must be capable of curing the defect.  A review before
    the HPARB satisfies these two criteria.

[74]

Section
    33(1)(a) of the Code authorizes the HPARB to review the adequacy of the
    Complaints Committees investigation.  An investigation conducted without
    giving the member notice of the complaint and an opportunity to make written
    submissions is an inadequate investigation.  Thus, the HPARB could have considered
    the failure of the Complaints Committee to afford Volochay procedural fairness:
    see
D.L.M. v. S.E.-S.
, 2010 CanLII 70389 (ON HPARB), at paras. 26,
    35-38.

[75]

Under
    s. 35(1)3 of the Code, the HPARB could have required the ICRC to reconsider the
    S.D. complaint, but this time after ensuring that Volochay had notice of the
    complaint and an opportunity to make written submissions.  In other words, the HPARB
    could have ordered the ICRC to give Volochay his procedural rights during the
    reconsideration.

[76]

What
    the HPARB could not have done was give Volochay the remedy he sought, and that was
    granted, in the Divisional Court: an order quashing the decision of the
    Complaints Committee and the later decision appointing an investigator.
    However, in my opinion, a reconsideration of the investigation after giving
    Volochay notice of the complaint and the opportunity to make submissions would
    be an adequate alternative remedy.  We must assume that the ICRC would conduct
    the reconsideration fairly and with an open mind.  The HPARB would, therefore,
    be capable of curing the initial failure of the Complaints Committee to treat
    Volochay fairly.

[77]

Considerations
    of cost, convenience and timeliness may bear on the adequacy of an alternative
    remedy.  To the extent that they are relevant, these considerations also favour
    review before the HPARB.  That review was scheduled some 20 months ago, and
    therefore, could have long since been completed, and no doubt for a relatively
    modest cost.

[78]

Volochays
    failure to seek a review of the Complaints Committees decision before the HPARB
    ought to have precluded relief by judicial review, absent exceptional
    circumstances.

(ii)

Were there exceptional circumstances?

[79]

The
    Complaints Committees decision, which called for an examination of Volochays
    entire practice, was a far-reaching order.  It went well beyond simply
    referring S.D.s complaint to the Discipline Committee.  Were it not for the
    availability of a review before the HPARB, I would have been inclined to uphold
    the application judges order quashing the Colleges decisions.  The
    far-reaching nature of the Complaints Committees decisions, made without
    giving Volochay the procedural fairness to which he was entitled, would have
    been an exceptional circumstance justifying early judicial review.

[80]

But,
    as I have found that a review before the HPARB was an adequate alternative remedy,
    Volochay must be able to point to some exceptional circumstance to justify
    resort to the courts instead of review by the Board.  He has not been able to
    do so.  And I can see none.  For example, I see no evidence of hardship, or prejudice,
    or costs, or delay that would support Volochays decision to bypass the HPARB
    and apply for judicial review.  Indeed, Volochay invoked the administrative
    review process for 15 months, only to withdraw his request shortly before the
    hearing date.  He must, therefore, accept responsibility for the delay and any
    increased costs.

E.

conclusion

[81]

I
    therefore conclude that the application judge was wrong in principle to grant
    judicial review.  It is thus not necessary to consider the Colleges final
    submission that Volochays conduct after S.D. filed her complaint disentitled
    him to relief.  I would allow the appeal, set aside the order of the
    application judge and dismiss Volochays application for judicial review.

[82]

I
    offer this final comment.  The Complaints Committee made a decision not simply
    to refer the S.D. complaint to discipline, but to call for an examination of
    Volochays entire practice. And it made this decision with complete disregard
    for Volochays rights under the Code and at common law.  He was entitled to
    better from his governing body.  At the same time, however, he was not
    justified in bypassing the reviewing body specifically established under the
    Act to hear parties dissatisfied with a decision of the Complaints Committee.  Whether
    Volochay could now reinstate his request for review before the HPARB was not
    before us.

[83]

The
    College is entitled to its costs of the judicial review in the Divisional Court,
    which I would fix in the amount of $10,000, inclusive of disbursements and all
    applicable taxes. The College is also entitled to its costs of the appeal,
    including the motion for leave, which I would fix in the amount of $12,500,
    inclusive of disbursements and all applicable taxes.

Released:
August 20, 2012 (J.L.)

John Laskin J.A.

I agree
    D. OConnor A.C.J.O.

I agree
    E.A. Cronk J.A.

[1]
Unless otherwise indicated, all references to statutory provisions
    are those in place at the time of the complaint. Slight changes to many of
    these provisions came into force on June 4, 2009 as a result of Schedule M to
    the
Health Systems Improvement Act
, 2007, S.O. 2007, c. 10.

[2]
Lamer C.J.C. did find that the trial judge exercised his
    discretion unreasonably in failing to consider that the appeal tribunals lacked
    sufficient independence from the Band Chiefs and Councils.


COURT OF APPEAL FOR ONTARIO

CITATION:
Wilson v. Semon, 2012
    ONCA 558

DATE: 20120824

DOCKET: C54871

Feldman, Sharpe and Ducharme JJ.A.

BETWEEN

Caroline Wilson

Applicant

(Respondent)

and

Charmaine Semon and Boundless Beauties Inc.

Respondents

(Appellants)

Charmaine Semon, acting in person

Alexander D. Rose, for the respondent

Heard: August 24, 2012

On appeal from the judgment of Justice Thomas R. Lederer
    of the Superior Court of Justice, dated December 5, 2011.

APPEAL BOOK ENDORSEMENT

[1]

We see no error in the reasons and the result reached by Lederer J. He
    fully addressed the factual and legal issues and we see no basis to interfere.

[2]

The appeal is dismissed with costs on a partial indemnity scale fixed at
    $4,970.47 inclusive of disbursements and HST.


COURT OF APPEAL FOR ONTARIO

CITATION:
Acostandei v. SNC-Lavalin
    Profac Inc., 2012 ONCA 633

DATE: 20120924

DOCKET: C54860

Winkler C.J.O., LaForme J.A. and Cunningham
    A.C.J. (
ad hoc
)

BETWEEN

Nermin Acostandei

Plaintiff (Appellant)

and

SNCLavalin Profac Inc.

Defendant (Respondent)

Nermin Acostandei, appearing in person

Laila Karimi-Hendry, for the respondent

Heard and released orally: September 13, 2012

On appeal from the judgment of Justice Stewart of the Superior
    Court of Justice, dated December 21, 2011.

ENDORSEMENT

[1]

This appeal is entirely without merit. Clearly the appellant feels
    wronged, however he has raised no credible evidence supporting his allegations.
    Accordingly, we would not interfere with any of the factual findings of Stewart
    J.

[2]

All of the appellants allegations at trial were appropriately responded
    to by the respondent, and rejected by the trial judge. SNCLavalin Profac Inc.
    (Profac), the respondent abided by its contractual and statutory obligations
    and was entitled to dismiss the appellant as it did.

[3]

As to the issue of intentional exposure to diseases, the appellant introduced
    no evidence of Profacs malicious intent, nor did the appellant provide any
    evidence that he was suffering from a visible and provable illness. Any
    depression the appellant might have suffered, having been diagnosed long after
    his dismissal, was too remote as to be attributable to the respondent.

[4]

Accordingly, the appeal is dismissed. Costs to the respondent fixed at
    $2500, inclusive of disbursements and applicable taxes.

W.K. Winkler C.J.O.

H.S. LaForme J.A.

J.D. Cunningham A.C.J. S.C.J. (
ad hoc
)


COURT OF APPEAL FOR ONTARIO

CITATION:
Alfano v. Piersanti, 2012 ONCA 612

DATE: 20120918

DOCKET: C54547

Cronk, Epstein and Pepall JJ.A.

BETWEEN

Bertina Alfano, Trustee of the Carmen Alfano Family
    Trust, Bertina Alfano, Italo Alfano, Trustee of the Italo Alfano Family Trust,
    Italo Alfano, Ulti Alfano Trustee of the Ulti Alfano Family Trust, and Ulti
    Alfano

Plaintiffs (Respondents)

and

Terry Piersanti also known as Terry Scatcherd,
    Christian Piersanti, Piersanti and Co. Barristers and Solicitors, Piersanti and
    Co. Professional Corporation, 1269906 Ontario Limited, 1281111 Ontario Limited,
    1281038 Ontario Limited, 1314112 Ontario Limited, 1281633 Ontario Limited,
    1281632 Ontario Limited, 1466556 Ontario Limited, 3957331 Canada Inc., 3964400
    Canada Inc., 3968626 Canada Inc., 4002598 Canada Inc., 4011902 Canada Inc.,
    6051685 Canada Inc., 6060439 Canada Inc. 6260365 Canada Inc., 6292470 Canada
    Inc., 6306560 Canada Inc., 6324223 Canada Inc., 6792715 Canada Inc., Yonge
    Centre Properties Inc., 6335144 Canada Inc., TMJ Investments, Tara Piersanti
    also known as Tara Piersanti-Blake, Justin Piersanti and Morgan Piersanti

Defendants (Appellants)

V. Ross Morrison and R. Samantha Chapman, for the
    appellants

James F.  Diamond, for the respondents

Kyla E.M. Mahar, for the Receiver

Heard: September 5, 2012

On appeal from the order of Justice P.A. Cumming of the Superior
    Court of Justice, dated October 18, 2011.

Pepall
    J.A.:

1.
Background

[1]

The appellants appeal from the October 18, 2011 order of Cumming J. of
    the Superior Court of Justice dismissing their motion for an order setting
    aside a
Mareva
injunction and receivership order granted by Newbould
    J. of the Superior Court of Justice on August 22, 2011 and also dismissing
    their motion for an order striking out the respondents statement of claim.

(i)      Trial Judgment

[2]

The appellants include Christian and Terry Piersanti (the Piersantis).
    They have been engaged in complex litigation with the respondents for many
    years.

[3]

In separate prior proceedings, E. Macdonald J. of the Superior Court of
    Justice granted judgment against the Piersantis and others in favour of the
    respondents on September 3, 2010.  The judgment required the Piersantis to pay
    the respondents $20,000,000, ordered $2,500,000 to be paid into court to the
    credit of the respondents, and granted other assorted relief against the
    Piersantis and a number of the defendants, some of whom are appellants in this
    action (the Trial Judgment). In her reasons, she made findings of fraud,
    misappropriation, non-disclosure and other egregious conduct on the part of
    Christian Piersanti, and found Terry Piersanti to have misappropriated funds
    and her evidence to have been entirely unreliable.

(ii)      Stay of Trial Judgment

[4]

The Piersantis and the other defendants appealed the Trial Judgment.  As
    a result, pursuant to rule 63.01(1), the monetary provisions of the Trial Judgment
    were automatically stayed pending the disposition of the appeal.

[5]

On June 7, 2011, a single judge of this court ordered that the stay be
    lifted with respect to the $2,500,000 payment into court.

[6]

Subsequently, the respondents commenced a new action against the
    Piersantis and others, some of whom were defendants in the prior proceedings,
    and some of whom were not. In their new action, the respondents asserted a new
    cause of action alleging that the appellants fraudulently created corporate
    veils and sham mortgages to shield themselves from the respondents and other
    potential creditors. Among other things, the respondents rely on the
Fraudulent
    Conveyances Act
, R.S.O. 1990, c. F.29 and the
Assignments and
    Preferences Act
, R.S.O 1990, c. A.33.

(iii)     Impugned Order

[7]

On August 22, 2011, in the new action, Newbould J. granted a
Mareva
injunction
    and, relying on s. 101 of the
Courts of Justice Act
, R.S.O. 1990, c.
    43, a receivership order (the Impugned Order).

(iv)     Subsequent Developments

[8]

On September 12, 2011, this court reinstated the stay of the Trial
    Judgment relating to the $2,500,000 payment in light of the Impugned Order of
    Newbould J. and the imminence of the hearing of the appeal from the Trial
    Judgment.

[9]

By judgment dated May 9, 2012, this court allowed the appeal in part and
    varied the Trial Judgment. Among other things, the award of $20,000,000 against
    Terry Piersanti was set aside and the damages award against Christian Piersanti
    was reduced from $20,000,000 to $12,521,555.85.  As a result of the disposition
    of the appellants appeal, the automatic stay of the Trial Judgment ceased to
    have any effect.

(v)     Current Appeal

[10]

On
    this appeal, the appellants submit that Cumming J. erred by failing to hold
    that Newbould J. lacked jurisdiction to grant the Impugned Order because
    the Trial Judgment was stayed pending disposition of the appellants appeal and
    consequently, jurisdiction to grant injunctive relief and the appointment of a
    receiver rested with the Court of Appeal.

[11]

In
    particular, they rely on the provisions of rule 63.03(1), which provides that
    where an order is stayed, no steps may be taken under the order or for its
    enforcement, except by order of a judge of the court to which a motion for
    leave to appeal has been made or an appeal has been taken. By operation of this
    rule, the appellants say, only the Court of Appeal had jurisdiction to grant
    the relief sought before Newbould J.  The appellants also refer to s. 134(2) of
    the
Courts of Justice Act,
which addresses an appellate courts
    ability to make interim orders pending appeal or leave to appeal, and rule
    60.02(1)(d), which states that an order for the payment or recovery of money
    may be enforced by the appointment of a receiver. The appellants submit that
    the decision of
Bruno Appliance and Furniture Inc. v. Cassels Brock &
    Blackwell LLP,
2011 ONSC 1305, 17 C.P.C. (7th) 197, is applicable.

2.
Discussion

[12]

I
    would reject the appellants jurisdictional challenge for the following
    reasons.

[13]

During
    oral argument, counsel for the appellants properly acknowledged that this
    appeal turns on whether the motion before Newbould J. leading to the Impugned
    Order was a motion to enforce the Trial Judgment.  In my view, neither the
    receivership order nor the
Mareva
injunction granted by Newbould J. constituted
    steps under the Trial Judgment or for its enforcement within the meaning of rule
    63.03(1).

[14]

Firstly,
    the Impugned Order was not a step under the Trial Judgment.  The relief
    granted by Newbould J. was in a separate action with different parties and
    different causes of action which, as I have said, included reliance on the
Fraudulent
    Conveyances Act
and the
Assignments and Preferences Act
.

[15]

Secondly,
    the Impugned Order was protective and preservative in nature. Cumming J. made
    this observation in his endorsement. The only relief sought on the motion
    before Newbould J. related to the preservation of assets pending determination
    of the respondents new action.  The Impugned Order therefore did not amount to
    enforcement of the Trial Judgment. I agree with the respondents submission
    that the effect of the stay of the Trial Judgment was to suspend their
    enforcement rights.  However, their rights as judgment creditors remained
    intact pending appeal.

[16]

Furthermore,
    the appointment of a receiver and the granting of a
Mareva
injunction
    are not necessarily orders for enforcement in any event. Indeed, in this case,
    the receiver was appointed pursuant to s.101 of the
Courts of Justice Act
.

[17]

Finally,
    contrary to the appellants submission, this case differs from
Bruno
    Appliance.
In that case, the relief
    claimed was sought in the original action between
the same parties.
    No new action was commenced and no new cause of action was asserted.  That is
    not this case.

[18]

I
    therefore conclude that Cumming J. did not err in refusing to set aside the Impugned
    Order of Newbould J. and in refusing to strike out the respondents statement
    of claim.  This conclusion is dispositive of this appeal.  Accordingly, there
    is no need to address the other arguments raised by counsel, including the
    respondents contention that the appellants attack on the Impugned Order is
    now moot.

3.
Disposition

[19]

For
    the reasons given, I would dismiss the appeal. I would award the respondents
    their costs of the appeal fixed, as agreed, in the amount of $6,000 inclusive
    of disbursements and applicable taxes.

Released: September 18, 2012  EAC

S.E.
    Pepall J.A.

I
    agree E.A. Cronk J.A.

I
    agree Gloria G. Epstein J.A.