COURT OF APPEAL
    FOR ONTARIO

CITATION: Castrillo v. Workplace Safety and Insurance Board,
    2017 ONCA 121

DATE: 20170213

DOCKET: C60763

Hoy A.C.J.O., Lauwers and Benotto JJ.A.

BETWEEN

Pietro Castrillo

Plaintiff (Appellant)

and

Workplace Safety and Insurance Board

Defendant (Respondent)

Richard A. Fink and Alan McConnell, for the appellant

Neil Finkelstein, Caroline Zayid, and Ljiljana Stanic, for
    the respondent

Heard: September 16, 2016

On appeal from an order of Justice Edward P. Belobaba of
    the Superior Court of Justice, dated June 25, 2015.

Lauwers J.A.:

[1]

This is a proposed class action brought by the appellant, Pietro
    Castrillo, on behalf of a class of injured workers alleged to have been
    wrongfully denied the full extent of benefits to which they were entitled under
    the
Workplace Safety and Insurance Act, 1997
, S.O. 1997, c. 16, (the
    WSIA or the Act), by the respondent Workplace Safety and Insurance Board
    (WSIB or the Board). The action is pleaded in misfeasance in public office,
    bad faith, and negligence.

[2]

The motion judge struck the statement of claim without leave to amend
    under r. 21.01(1)(b) of
the
Rules of Civil Procedure
,

R.R.O. 1990, Reg. 194 as disclosing no cause of action
.
He considered the WSIBs decisions reducing
    the class members non-economic loss benefits (NEL) to be legal decisions
    that fall within the four corners of the privative clause in the WSIA, and
    therefore beyond court challenge.

[3]

For the reasons that follow, I would allow the appeal.

A.

The Factual and Procedural Context

[4]

The facts giving rise to the action are set out in the motion judges
    short endorsement. The appellant was working as a concrete finisher and a pipe
    layer when he sustained a shoulder injury in a work-related accident in October
    2011. He applied for and received the applicable economic loss benefits to
    which he was entitled under the WSIA. He also qualified for a NEL award because
    he was found to have suffered a permanent impairment leaving him with less
    than a full range of motion in his shoulder. The respondent determined the
    appellant was entitled to a 6% NEL lump sum award, but then reduced the award by
    50% to $1,229.50 because of a pre-existing condition, identified as
    osteoarthritis in the injured shoulder.

[5]

The appellant appealed administratively on the basis that the WSIB was
    wrong to reduce the NEL award. Since his pre-existing osteoarthritis had been
    asymptomatic before the work-related injury and had never affected his
    shoulders functionality, it was not a pre-existing impairment. The Appeal Resolution
    Officer allowed the appeal and restored the full amount of the NEL award
    without reduction, and the matter did not go forward to the Workplace Safety and
    Insurance Appeals Tribunal.

[6]

The appellant later learned there were a number of injured workers whose
    NEL awards were similarly reduced by the WSIB on the basis of so-called
    pre-existing conditions that were not true impairments, many of which were also
    reversed on appeal. The appellant discovered the reductions were the result of
    the implementation of an internal WSIB document, which he calls a secret
    policy. Through it, the WSIB adopted a broader interpretation of the term,
    pre-existing impairment, to include asymptomatic pre-existing conditions,
    which had previously been excluded. The appellant asserts this change in
    interpretation was illegally made in order to save WSIB money by reducing NEL
    awards.

[7]

The appellant commenced proceedings under the
Class Proceedings Act,
    1992
, S.O. 1992, c. 6.
The proposed
    class is defined as:

(a) All workers
    whose Non-Economic Loss (NEL) awards for workplace injuries were reduced by
    the Defendant due to pre-existing medical conditions that were not impairments
    negatively impacting upon their pre-accident functioning; and

(b) who also
    incurred expenses pursuing administrative appeals of the Defendants decision
    to reduce their NEL awards.

[8]

The appellant seeks declarations that the WSIB perpetrated a
    misfeasance in public office in how it handled the NEL claims of the class,
    breached its duty to act in good faith to the class, and, in the alternative,
    was negligent. The action seeks damages measured in part by the: legal fees,
    disbursements and other expenses they incurred in administrative proceedings
    overturning the Defendants decisions with respect to their claims for
    Non-Economic Loss awards, along with punitive, aggravated, exemplary and special
    damages.

[9]

The respondent brought a motion under
the
Rules of
    Civil Procedure
to strike the statement of claim, without leave to
    amend, under r. 21.01(1)(b), on the basis that it discloses no reasonable
    cause of action, and, under r. 21.01(3)(a), on the basis that the court has
    no jurisdiction over the subject matter of the action.
[1]
I note that the motion was not brought under r. 21.01(1)(a) for the
    determination, before trial, of a question of law raised by a pleading.

[10]

Based largely on what the motion judge saw as the strength of the
    privative clause in the WSIA, he concluded it was plain and obvious that the
    bad faith, misfeasance and negligence claims on the facts of this case as
    pleaded are certain to fail and should be struck without leave to amend under
    Rule 21.01(1). The motion judge did not mention r. 21.01(1)(b) in his reasons,
    but his order declares that the pleading does not disclose any reasonable
    cause of action.

[11]

The motion judges reasons must be read in the context of his introductory
    paragraph:

On the facts of this case, and given the scope and content of the
    s. 118 privative clause, it is plain and obvious and beyond doubt that the bad
    faith and misfeasance in public office claims (and the alternative claim in
    negligence) are not reasonable causes of action. I need not discuss the WSIBs
    additional submissions re jurisdiction, abuse of process, collateral attack, or
    damages (and how legal costs are not recoverable).

B.

Issues

[12]

There are two basic issues in this appeal, which arise with respect to
    each pleaded cause of action, being misfeasance in public office, bad faith and
    negligence:

1.

Is the cause of action properly pleaded?

2.

Does the privative clause in the WSIA prevent the
    appellant from pursuing the cause of action?

C.

Analysis

[13]

The motion judges over-arching error is that he dealt with this matter
    more as a summary judgment motion under r. 20 than as a motion to strike the
    amended statement of claim as disclosing no cause of action under r. 21.01(1)(b).
    He did not interpret the pleading generously, as the cases require, but instead
    deconstructed it for the purpose of determining whether the privative clause in
    the WSIA applied to oust the courts jurisdiction. This was an error in
    principle.

[14]

The framework for assessing whether to strike a pleading under r. 21.01(b)
    of the
Rules of Civil Procedure
on the ground that it discloses no reasonable cause of action is set out by
    Paul M. Perell and John W. Morden,
The Law of Civil Procedure in Ontario
,
    2d ed. (Markham: LexisNexis Canada Inc., 2014), at p. 532:

The following principles apply to a Rule 21 motion to strike a
    pleading for failing to disclose a reasonable cause of action or defence: (a)
    the material facts pleaded must be deemed to be proven or true, except to the
    extent that the alleged facts are patently ridiculous or incapable of proof;
    (b) the claim incorporates by reference any document pleaded and the court is
    entitled to read and rely on the terms of such documents as if they were fully
    quoted in the pleadings; (c) a claimant is not entitled to rely on the
    possibility that new facts may turn up as the case progresses; the facts
    pleaded are the basis upon which the claim is evaluated (d) [the] novelty of
    the cause of action is of no concern at this stage of the proceeding; (e) the
    statement of claim must be read generously to allow for drafting deficiencies;
    and (f) if the claim has some chance of success, it must be permitted to
    proceed.[Internal citations omitted.]

[15]

The claim will only be struck where it is plain and obvious that it
    has no reasonable prospect of success:
Hunt v. Carey Canada Inc.
,
    [1990] 2 S.C.R. 959;
R v. Imperial Tobacco Canada Ltd.
, 2011 SCC 42,
    [2011] 3 S.C.R. 45, at paras. 17-19;
Taylor v. Canada (Attorney General)
,
    2012 ONCA 479, 111 O.R. (3d) 161, at para. 22; and
Trillium Power Wind Corporation
    v. Ontario (Natural Resources)
, 2013 ONCA 683, 117 O.R. (3d) 721, at para.
    30. While the court must accept as true the material facts as pleaded, this
    obligation does not extend to bald conclusory statements of fact unsupported by
    material facts.

[16]

I first consider misfeasance in public office, next bad faith, and then
    negligence.

(1)

Misfeasance in Public Office

(a)

Is the Cause of Action Properly Pleaded?

[17]

To set the legal context, I observe that this court succinctly expressed
    the purpose of the tort of misfeasance in public office in
Freeman-Maloy

v. Marsden
(2006), 79 O.R. (3d) 401, 267 D.L.R. (4th) 37 (Ont. C.A.),
    at para. 10:

The tort of misfeasance in a public office is founded on the
    fundamental rule of law principle that those who hold public office and
    exercise public functions are subject to the law and must not abuse their
    powers to the detriment of the ordinary citizen. As Lord Steyn put it in
Three
    Rivers District Council v. Bank of England (No. 3)
, [2000] 2 W.L.R. 1220,
    at 1230 The rationale of the tort is that in a legal system based on the rule
    of law executive or administrative power may be exercised only for the public
    good and not for ulterior and improper purposes. The underlying purpose of
    the tort of misfeasance in a public office is to protect each citizen's
    reasonable expectation that a public officer will not intentionally injure a
    member of the public through deliberate and unlawful conduct in the exercise of
    public functions:
Odhavji
, [2003 SCC 69, [2003] 3 S.C.R. 263]
supra
at para. 30.

[18]

The motion judge did not set out the elements of the cause of action of
    misfeasance in public office nor determine whether the elements were properly
    pleaded.

(i)

The General Principles

[19]

To pass scrutiny under r. 21.01(1)(b), a pleading of misfeasance in
    public office must allege facts capable of establishing the ingredients of the
    tort, in addition to the usual tort requirements of causation and damages. The
    ingredients are: (1) the defendant must be a public official; (2) the claim
    must arise from the exercise of power as a public official; and (3) the public
    official must have acted with malice or bad faith so as to satisfy the mental
    element:
Freeman-Maloy
, at para. 11.

[20]

Another way of framing the test is that the plaintiff must show: first,
    the public official was engaged in unlawful conduct in the exercise of his or
    her public functions; and, second, the public official was aware that the
    conduct in question was unlawful and was likely to injure the plaintiff:
Trillium
    Power Wind Corporation
, at paras. 38-39, drawing on the Supreme Courts
    decision in
Odhavji Estate v. Woodhouse
, at paras. 28, 30 and 32; see
    also,
Pikangikum First Nation v. Nault
, 2012 ONCA 705, 298 O.A.C. 14,
    at para. 54, leave to appeal refused, [2013] S.C.C.A. No. 10;
St. Elizabeth
    Home Society v. Hamilton (City)
, 2010 ONCA 280, 319 D.L.R. (4th) 74, at
    para. 20;
Granite Power Corporation v. Ontario
(2004), 72 O.R. (3d)
    194 (C.A.), leave to appeal refused, [2004] S.C.C.A. No. 409, at paras. 37-39.

(ii)

The Amended Statement of Claim

[21]

As to the necessary tort elements of damages and causation, the
    appellant conceded in oral argument that he is not seeking more compensation in
    terms of a NEL award, because his appeal of the reduced NEL award had already
    been allowed. However, he argues that to succeed in the internal appeal, he was
    forced to incur unnecessary legal and other expenses he seeks to recover as
    damages in this action. Other class members could have claims for both a higher
    NEL award and similar incidental costs.

[22]

The pleading alleges that WSIB is a public body and its employees
    were at all material times public office holders for which it is both
    directly and vicariously liable for the bad faith acts and omissions of its
    employees.

[23]

The starting point for a detailed discussion of the pleading is the
    WSIA, which defines impairment and permanent impairment in s. 2:

impairment means a physical or functional abnormality or loss
    (including disfigurement) which results from an injury and any psychological
    damage arising from the abnormality or loss;

permanent impairment means impairment that continues to exist
    after the worker reaches maximum medical recovery.

[24]

Section 46(1) provides for the NEL benefit:

46(1)
If a workers injury
    results in permanent impairment, the worker is entitled to compensation under
    this section for his or her non-economic loss.

[25]

Section 47(1) requires the Board to determine the degree of his or her
    permanent impairment, and s.47(2) provides that the determination must be made
    in accordance with the prescribed rating schedule. Section 18 of O. Reg. 178/98
    under the
WSIA
prescribes the American Medical Association
Guides to the Evaluation of
    Permanent Impairment
(third edition revised) as it read on
    January 14, 1991, as the rating schedule for impairment.

[26]

The WSIB had a policy for dealing with pre-existing impairments,
    Operational Policy 18-05-05 (Effect of a Pre-Existing Impairment),  which
    allowed for reductions in NEL benefits to account for pre-existing impairments.
    The pleading states that under that policy, WSIB was permitted to discount NEL
    awards to injured workers on account of pre-existing impairments that were
    measurable. This was [previously] done by calculating the clinical impairment
    before the injury and performing a subtraction from the post-injury
    impairment.

[27]

As to the WSIBs acts or omissions, the pleading alleges, at paras. 17
    and 19, that the WSIBs decision to reduce the appellants NEL award was the
    result of a secret policy adopted by the [WSIB] and revealed in an internal Orientation
    article intended for its staff. This secret policy was to aggressively reduce
    legitimate NEL awards by interpreting Operational Policy 18-05-05 (Effect of a
    Pre-Existing Impairment) to allow for reductions due to pre-existing conditions
    that had no negative impact or impairment on a workers pre-accident
    functioning. The secret policy changed the way in which the WSIB interpreted
    Operational Policy 18-05-05, by equating the technical term impairment with
    condition. This change swept in people like the appellant, whose pre-existing
    condition was asymptomatic and did not interfere with or impair the
    functionality of his shoulder for work purposes.

[28]

The introduction of this new approach in the secret policy was done
    without legal authority, and was pleaded to be: illegal as being contrary to
    the WSIA and its regulations. In particular, the pleading notes that:

From a medical perspective, condition is a non-specific term
    that does not necessarily denote any change in a persons health status. In
    contrast, an impairment is a term that does denote a specific change.

[29]

Moreover, the pleading asserts that the approach is inconsistent with that
    prescribed by the American Medical Association,
Guides to the Evaluation of
    Permanent Impairment
, 3rd ed. (American Medical Association, 1990) (AMA Guides).

[30]

The AMA Guides states, at s. 1.1:

As used in the
Guides
, impairment means an
    alteration of an individuals health status that is
assessed by medical
    means
; disability,
which is

assessed by non-medical means
,
    is an alteration of an individuals capacity to meet personal, social or
    occupational demands[.](Emphasis in original.)

[31]

The AMA Guides states, at s. 2.1:

According to the principles of the
Guides
, the first
    step in assessing an impairment is a thorough medical evaluation, with
    particular attention to the complete clinical and nonclinical history of the
    medical condition(s)

The second step in assessing the impairment is analyzing the
    history and the clinical and laboratory findings to determine the nature and
    extent of the loss, loss of use of, or derangement of the affected body part,
    system, or function.

The third step is comparing the results of the analysis with
    the criteria specified in the
Guides
for the particular body part,
    system, or function.

[32]

Further, the AMA Guides states, at s. 2.2:

Impairment should not be considered permanent until the
    clinical findings determined over a period of time, usually 12 months, indicate
    that the medical condition is static and well stabilized.

[33]

The pleading states that the WSIB: has no authority to expand the
    definition of impairment to discount for non-measurable pre-existing conditions,
    because the AMA Guides does not equate impairment with condition. By
    defining the term disability, the AMA Guides specifically does not intend to
    import the word condition into impairment.

[34]

The pleading adds that effectively expanding the definition of
    impairment was: illegal as being contrary to the WSIA and its regulations. It
    points out that WSIB implicitly admitted its lack of authority by amending its
    policies effective November 1, 2014 in an attempt to give the authority it
    previously did not have regarding deductions for conditions (WSIB Operational
    Policy 10-05-03). The new policy, entitled Determining the Degree of
    Permanent Impairment, is a good deal more elaborate than the secret policy. (I
    note that the appellant does not challenge the legality of the new policy. I
    read this as confining the claims in this action to the period in which the secret
    policy was operating.)

[35]

In addition to alleging lack of legal authority, the pleading states
    WSIBs actions were motivated by a desire to reduce costs, and: the Defendant
    knew it was acting illegally and that its actions would harm the Plaintiff and
    Class, which makes its actions therefore, malicious in nature.

[36]

In effect, the pleading asserts that reducing costs was an improper
    purpose for WSIBs change in the interpretation of its policy. In doing what it
    did, the pleading asserts WSIB breached its duty of good faith to the appellant
    and class, who as injured workers were in a vulnerable position and dependent
    upon the Defendant to appropriately exercise its statutory responsibility in
    good faith.

(iii)

The Principles Applied

[37]

WSIB concedes it owes a general public law duty, to the public and to
    workers, to act in good faith, and not maliciously or in bad faith. I do not
    take the WSIB as disputing the allegations in the pleading that it is a public
    body and its employees are public officials; these are constituent elements of
    the tort, as is the allegation that the appellant has suffered damages.

[38]

With respect to the requirement of a culpable mental state, the
    respondent draws on
Odhavji,
at
    para. 28, where the Supreme Court said: In order for the conduct to fall within
    the scope of the tort, the officer must deliberately engage in conduct that he
    or she knows to be inconsistent with the obligations of the office.

[39]

The law, as set out in
Freeman-Maloy
, is that the claimant need
    not allege or prove actual malice in order to make out the mental element of
    the cause of action of misfeasance, only bad faith. Although the pleading in
    this case does assert that WSIBs actions were malicious in nature, it is
    really focused on WSIBs bad faith. As I interpret the pleading, the assertion
    of bad faith arises from the allegation that WSIB made the policy change for an
    improper purpose and without due authority.

[40]

WSIB challenges the adequacy of the pleading on three bases. First, it asserts
    that the pleading fails to plead facts necessary to support a claim for bad
    faith or misfeasance in public office. WSIB adds: The appellant makes bald
    allegations that actions were taken in bad faith, and has not provided any
    facts in support. In oral argument and in the factum, WSIB asserts that it is
    not sufficient for the appellant to baldly claim a law was breached.

[41]

In my view, WSIBs baldness challenge to the pleadings falls short for two
    reasons. First, many of the specific facts would be in the respondents
    knowledge and would become evident once the statement of defence is served, and
    document production and discovery takes place, as this court observed in
Trillium Power Wind Corporation
, at paras.
    60-61:

We are alive to the problem pointed out by the Federal Court of
    Appeal in
St. Johns Port Authority

v. Adventure Tours Inc.,
2011 FCA 198, per Stratas J.A., at para. 63 that a bald pleading is especially
    problematic in cases alleging abuse in public office. Stratas J.A. pointed out
    that: it is all too easy for a plaintiff who is aggrieved by governmental
    conduct to assert, perhaps without any evidence at all, that the government
    acted, knowing it did not have the authority to do so, intending to harm
    the plaintiff. That said, we do not agree with the motion judge that the
    pleading is completely bald. This pleading is detailed and as fact-specific
    as the appellant can be at this stage of the proceeding. The allegations link
    to actual events, documents and people.

To quote Moldaver J.A., in
Granite Power
at para. 40,
    on the facts pleaded, including the particulars, there exists a narrow window
    of opportunity for [the appellant] to make out its claim in misfeasance. The
    appellant cannot provide more particulars now because many of the necessary
    supporting facts would be within Ontario's knowledge and control, and there has
    been no document production or discovery.

[42]

Second, the appellant relies in part on some known facts that are rooted
    in the legislation, the regulations, the policies and the documents in order to
    found its allegations about improper purpose and bad faith.

[43]

At this stage of the proceeding, before the defendant has pleaded and
    before document production and discovery, the pleading is adequate. To
    paraphrase
Trillium Power Wind Corporation
, at para. 61, the appellant
    cannot provide more particulars now because many of the necessary supporting
    facts would be within WSIBs knowledge and control, and will be revealed as the
    process unfolds.

[44]

The second ground on which WSIB disputes the adequacy of the pleading relates
    to improper purpose. WSIB takes the position that the only improper purpose
    alleged by the Appellant is an attempt to cut costs, which it states is
    inadequate in pleading terms.

[45]

I would find the pleading of an improper purpose to be adequate in
    strictly pleadings terms, since there is a line of authority supporting the
    proposition that a public authority cannot use its spending power in a manner
    inconsistent with its mandate:
Re Doctors
    Hospital and Minister of Health
(1976), 68 D.L.R. (3d) 220 (Ont.
    Div. Ct.). This is a specific application of the more general proposition that
    a statutory power must only be used for a proper purpose: see
Re Multi-Malls Inc. et al. and
    Minister of Transportation and Communications et al

(1977), 14 O.R. (2d) 49
(C.A.);
Oakwood Development Ltd. v. St. François Xavier (Rural
    Municipality)
, [1985] 2 S.C.R. 164, at para. 15;
Roncarelli v.
    Duplessis
, [1959] S.C.R. 121, at p. 140; and
Padfield v Minister of
    Agriculture, Fisheries and Food
, [1968] A.C. 997 (H.L.) at p. 1030.

[46]

However, WSIB responds that s. 1 of the Act obliges the Board to
    accomplish its purposes in a financially responsible and accountable manner. I
    set out s. 1 to provide context:

1.
The purpose of this Act is to accomplish the following
in a financially
    responsible and accountable manner
:

1.       To promote health and safety in workplaces.

2.       To
    facilitate the return to work and recovery of workers who sustain personal
    injury arising out of and in the course of employment or who suffer from an
    occupational disease.

3.       To
    facilitate the re-entry into the labour market of workers and spouses of
    deceased workers.

4.       To
    provide compensation and other benefits to workers and to the survivors of
    deceased workers. (Emphasis added.)

[47]

WSIB asserts that the underlined words in s. 1 of the Act provide a full
    answer, and permit the Board to reduce the payment of benefits to injured
    workers in order to save money.

[48]

I would reject this argument for two reasons. First, this is not a valid
    argument in a pleadings motion under r. 21.01(1)(b). It is a substantive
    argument on a question of law that would normally be pursued on a summary
    judgment motion under r. 20, if not on a motion under r. 21.01(1)(a) for the
    determination, before trial, of the question of law raised by a pleading. That
    is not, however, the way in which WSIB pursued this motion, nor is it the basis
    upon which the motion judge decided it.

[49]

Second, what the legislature intended to be the reach of the expression,
    in a financially responsible and accountable manner, requires a fuller
    exposition than would be permitted in a pleadings motion. The exercise of
    statutory power is subject to principles, and any decision to reduce benefits would
    engage possible limits that have not been laid out in the argument, and on
    which I will say no more. It would not be possible, on this record, to conclude
    that the legislature intended to permit the WSIB to arbitrarily, as is alleged,
    adjust a single category of statutory benefits while leaving all the others
    untouched.

[50]

The third ground, on which the WSIB challenges the pleading, is by characterizing
    the appellants complaints as those of a disgruntled claimant who seeks to
    elevate his complaint beyond the reach of the privative clause by gratuitously
    adding in allegations of bad faith and misfeasance in public office. This, WSIB
    asserts, is a collateral attack on its decision regarding his entitlement.

[51]

I do not take that view of the appellants claims. He is not complaining
    about a specific decision regarding his personal entitlement, as occurred in,
    for example,
Aird. v. WSIB
,
Aird v. WSIAT
, 2010 ONSC 3600, at paras.
    14-15, and
Pagourov v. Science Applications
    International Corporation
,
2007 CanLII 7398, at para. 12, affd 2007 ONCA
    745. Nor do I see his claims as a collateral attack to circumvent the WSIB as
    an expert tribunal, as described in
Garland
    v. Consumers Gas Co
., 2004 SCC 25, [2004] 1 S.C.R. 629, at para.
    71 and
R. v. Consolidated Maybrun Mines Ltd
.,
    [1998] 1 S.C.R. 706. Nor is this pleading linked to the specific circumstances
    of the appellants complaint; it challenges the legality of the WSIBs actions
    across a category of benefits and a class of persons. I would see this class
    action as categorically different, not as a collateral attack on the WSIBs
    specific determination of the appellants entitlement.

[52]

In my view, the appellant has adequately pleaded the cause of action of
    misfeasance in public office and has provided adequate particulars of the
    claim.

(b)

Does the Privative Clause in the WSIA Prevent the Appellant from
    Pursuing Misfeasance in Public Office?

[53]

The respondent makes two submissions with respect to the privative
    clause in the WSIA. First, it asserts that: the Act ousts the jurisdiction of
    the court in favour of the Board in this case. (I assume this was the original
    basis for WSIBs challenge of the appellants pleading under r. 21.01(3)(a) of
    the
Rules of Civil Procedure
, that: the court has no jurisdiction
    over the subject matter of the action.) Second, WSIB argues that the Act prevents
    the court from awarding the appellant incidental costs in relation to
    proceedings under it.

[54]

In respect of the first issue, the privative clause in the WSIA, s. 118,
    is strongly worded:

118.  (1)

The Board has exclusive jurisdiction to
    examine, hear and decide all matters and questions arising under this Act
,
    except where this Act provides otherwise.

(2)
Without limiting the generality of subsection (1),
the Board has exclusive
    jurisdiction to determine
the following matters:

2.       Whether personal injury or death has been
    caused by an accident.

3.       Whether an accident arose out of and in
    the course of an employment by a Schedule 1 or Schedule 2 employer.

7.       Whether loss of earnings has resulted
    from an injury.

8.
Whether permanent impairment has resulted
    from an injury, and the degree of the impairment
.

(3)

An
    action or decision of the Board under this Act is final and is not open to
    question or review in a court.

(4)

No
    proceeding by or before the Board shall be restrained by injunction,
    prohibition or other process or procedure in a court or be removed by
    application for judicial review or otherwise into a court. (Emphasis added.)

(i)

General Principles

[55]

The question of whether legislation can oust the jurisdiction of a
    Superior Court in a manner consistent with the constitutional principle of the
    rule of law was addressed by the Supreme Court in
Crevier v. A.G. (Quebec) et al.
, [1981] 2 S.C.R. 220, at pp. 236-238.
    This is not an antique proposition that has been superseded by the flow of time
    and jurisprudence. The court reiterated it in
Dunsmuir v. New Brunswick
, 2008 SCC 9, [2008] 1 S.C.R. 190,
    at paras. 27-31, and 52.

[56]

In
Crevier
, the Supreme
    Court considered a privative clause in the Professional Code of Quebec that
    excluded recourse to the supervisory authority of the Quebec Superior Court.
    Chief Justice Laskin, on behalf of the court, held, at p. 234:

In my opinion, where a provincial Legislature purports to
    insulate one of its statutory tribunals from any curial review of its
    adjudicative functions, the insulation encompassing jurisdiction, such
    provincial legislation must be struck down as unconstitutional by reason of
    having the effect of constituting the tribunal a s. 96 [of the
Constitution
    Act 1867
] court.

[57]

The underlying logic was expressed by Martland J. in
Executors of Woodward Estate v. Minister of Finance
,
    [1973] S.C.R. 120, at p. 127, to which Laskin C.J. referred to in
Crevier
,
    at p. 236:

[I]f such a tribunal has acted beyond its jurisdiction in
    making a decision, it is not a decision at all within the meaning of the
    statute which defines its powers because Parliament could not have intended to
    clothe such [a] tribunal with the power to expand its statutory jurisdiction by
    an erroneous decision as to the scope of its own powers.

[58]

Although
Crevier
concerned a tribunal exercising an
    adjudicative function, the logic applies equally to agencies that do more than
    adjudicate, but also make policy and regulate, like the WSIB.

(ii)

The Privative Clause and the
    Motion Judges Reasons

[59]

The motion judge stated his view that the WSIA
:
provides a complete
    and comprehensive code for workplace injury compensation determinations, which
    clearly reflects legislative intent. He observed that the WSIB and the Appeal
    Tribunal are protected by the toughest privative clause known to Ontario law,
    citing this courts description of s. 118 in
Rodrigues
    v. Ontario (Workplace Safety and Insurance Appeals Tribunal)
, 2008 ONCA 719,

92 O.R. (3d) 757, at para. 22.

[60]

As noted above, the privative clause in the WSIA, s.118, is strongly
    worded. The motion judge identified the gist of the appellants claim as
    this: the WSIBs interpretation of the applicable Regulation and what
    constitutes a pre-existing impairment was wrongly decided. This he
    interpreted to be the true import of the language in the statement of claim,
    [which] includes words such as illegal had no legal authority [and] contravened
    the Regulation. In the motion judges view: This claim falls squarely within
    the four corners of the privative clause and cannot be considered or reviewed
    by this Court. I interpret this decision as accepting WSIBs argument that the
    courts jurisdiction was ousted by the privative clause, although the motion
    judge did not use that word.

[61]

Further, the motion judge interpreted the allegations of bad faith,
    misfeasance in public office and negligence as relating to how the Board handled
    the claims of the plaintiff and Class for non-economic loss awards, to be: legal
    decisions that fall within the four corners of the privative clause.

[62]

This too, in my view, must be read as a finding by the motion judge that
    the privative clause ousted the courts jurisdiction.

[63]

Based on his view of the comprehensive reach of the privative clause,
    the motion judge concluded, it is therefore plain and obvious that the bad
    faith, misfeasance and negligence claims on the facts of this case as pleaded
    are certain to fail and should be struck without leave to amend under Rule
    21.01(1).

(iii)

The Principles Applied

[64]

I find the motion judges decision to be inconsistent with his other
    findings, first, that: the WSIBs otherwise strong privative clause would not
    preclude a bad faith or misfeasance in public office claim in appropriate circumstances,
    and second, that: If the WSIB crosses the line and abuses its power, it is
    not immune from claims filed in Court.

[65]

As I observed at the outset, the motion judges overarching error was in
    approaching this motion as though it were a summary judgment motion rather than
    a motion to strike the amended statement of claim as disclosing no cause of
    action under r. 21.01(1)(b). His determination amounts to a substantive legal
    decision that the appellant has no chance of success, based on the facts of
    this case as pleaded, even if, as I have found, the claim of misfeasance in
    public office has been properly pleaded. With respect, this is not an available
    determination in a pleadings motion. It is an argument that could be made in
    the context of a motion for summary judgment, or perhaps in a motion under r. 21.01(1)(a),
    but that is not what happened here.

[66]

The cases make it clear that, as a general principle, the legislature
    cannot completely oust the jurisdiction of the Superior Court, including, most
    pertinently, an allegation of misfeasance in public office related to its use
    of statutory power for an improper purpose.

[67]

It is, nonetheless, possible that the specific determinations made by
    the WSIB in this case could ultimately be found to be a proper use of the
    Boards authority, once the evidence is in about who did what, when and why.
    One would expect those facts to be revealed through the statement of defence,
    and through the document production and discovery process. Although the
    appellant has tendered a secret policy, consisting of three pages of the
    Boards orientation manual, the Board might well be found on the evidence to have
    taken an even-handed and fully authorized approach to its reduction of NEL benefits.
    These are not matters that could or should be assessed on a pleadings motion.

[68]

I now turn to WSIBs second argument, which is that the appellant cannot
    succeed in its claim for reimbursement of costs thrown away in relation to the
    pursuit of his appeal rights under the WSIA, because the Act forecloses an
    award of legal costs.

[69]

I agree with the Board that s. 133 of the Act permits the WSIB to pay
    reasonable travel and living expenses of, and other allowances for, (a) a
    worker and his or her witnesses, among others, and that the Board has
    repeatedly held that other allowances do not include legal costs: see
Canada (Canadian Human Rights Commission) v. Canada
    (Attorney General)
,
2011 SCC 53, [2011] 3 S.C.R. 471, at para. 40; and
Decision

168/92
, [1992] O.W.C.A.T.D. No. 271.

[70]

However, the claim for the payment of incidental expenses by way of
    damages in this case is outside the process established by the Act altogether.
    If the WSIB has conducted itself in a way that takes it outside of the shelter
    of the privative clause, which is the appellants allegation in the amended
    statement of claim, the argument is that the Board cannot shield itself under s.
    133 of the WSIA in respect of the damages claim. The fact that the damages
    claim is measured by costs thrown away might not negate the claim.

(2)

Bad Faith

(a)

Is the Cause of Action Properly
    Pleaded?

[71]

The amended statement of claim tends to lump together the allegation
    that the WSIB committed a breach of duty to act in good faith with the
    allegation of misfeasance in public office. The appellant pleads that the
    Board owed a duty of good faith to the appellant and class, who as injured
    workers were in a vulnerable position and dependent upon the Defendant to
    appropriately exercise its statutory responsibility in good faith. The
    pleading states that the WSIB and its employees have a duty to act in good
    faith in exercising their statutory responsibilities, and that the Board is
    both directly and vicariously liable for the bad faith acts and omissions of
    its employees.

[72]

The appellant proffers two authorities for the proposition that there is
    a free standing cause of action for breach of a duty of good faith. The first
    is
Whiten v. Pilot Insurance Co
.,
    2002 SCC 18, [2002] 1 S.C.R. 595. That case concerned the availability of a bad
    faith claim in the context of an insurance contract, and in my view has no
    application here.

[73]

The second case is
Gouthro v. Workplace Safety and Insurance Appeals
    Tribunal et al
, 2014 ONSC 7289 (Div. Ct.), in which the applicants claim
    for judicial review was dismissed on the basis that the age limitation on the benefits
    set out in s. 43 of the WSIA did not contravene s. 15(1) of the
Charter
. The case did not deal with the
    issue of good faith.

[74]

I agree with the WSIBs submission that bad faith is not, in itself, a
    free standing cause of action:
Alberta v.
    Elder Advocates of Alberta Society
, 2011 SCC 24,
[2011] 2 S.C.R. 261, at
    para. 78. There, the Supreme Court said that bad faith, in tort, is an element
    of misfeasance in public office. The elements of bad faith are therefore
    properly pleaded as incidental to the claim in misfeasance in public office,
    but the free standing claim for relief set out at paras. 51-57 of the amended
    statement of claim should be struck. I would grant leave to amend, but only for
    the appellant to better tie the bad faith allegation to the claim of
    misfeasance in public office, if so advised.

[75]

In light of this conclusion, since the bad faith allegation folds into
    the misfeasance in public office claim, I need not undertake a separate
    analysis of the reach of the privative clause respecting bad faith.

(3)

Negligence

(a)

Is the Cause of Action Properly
    Pleaded?

[76]

The appellant pleads negligence in the alternative to his claim for
    misfeasance in public office. The pleading is brief:

62.     If it is determined that the Defendant did not commit a
    misfeasance in public office, which is not admitted, the Plaintiff pleads in
    the alternative that the Defendant was negligent in how it reduced the NEL
    awards of the Plaintiff and the Class.

63.     The Defendant owed the Plaintiff and the Class a duty
    of care arising from the relationship created when the Plaintiff and Class
    became recipients of benefits under the compulsory workers compensation scheme
    established pursuant to the
WSIA
and administered by the Defendant.

64.     The Defendant breached the duty of care and failed to
    meet the requisite standard of care it owed the Plaintiff and Class when it
    negligently decided that Operational Policy 18-05-06 (Effect of a Pre-Existing
    Impairment) allowed for the reduction of NEL awards due to pre-existing conditions
    that had no negative impact or impairment on a workers pre-accident
    functioning.

[77]

The respondent submits that it owes no private duty of care to
    individual workers: the Boards role in interpretive and adjudicative, and its
    role in administering statutory benefits is inconsistent with a finding of a
    private law duty of care.

[78]

In order to establish a duty of care in negligence, three elements are
    necessary: (1) The harm complained of must have been reasonably foreseeable;
    (2) There must have been sufficient proximity between the plaintiff and the
    defendant that it would be fair and just to impose a duty of care; and (3)
    There must be no residual policy reasons for declining to impose such a duty:
Williams v. Toronto (City)
, 2016 ONCA 666, 402 D.L.R. (4th) 678;
Cooper v. Hobart
, 2001 SCC 79, [2001] 3
    S.C.R. 537;
Edwards v. Law Society of Upper
    Canada
, 2001 SCC 80, [2001] 3 S.C.R. 562;
Childs v. Desormeaux
, 2006 SCC 18, [2006]
    1 S.C.R. 643;
Syl Apps Secure Treatment
    Centre v. B.D.
, 2007 SCC 38, [2007] 3 S.C.R. 83; see also
Anns v. Merton London Borough Council
,
    [1978] A.C. 728 (H.L.); and
Kamloops (City
    of) v. Nielsen
, [1984] 2 S.C.R. 2.

[79]

There is no real issue in this case about the first element,
    foreseeability. The WSIB knew precisely what the effects would be on the class.

[80]

As this court noted about the second
Cooper
element of
    proximity: [T]he proximity inquiry will focus initially on the applicable
    legislative scheme and secondly, on the interactions, if any, between the
    regulator or governmental authority and the putative plaintiff:
Taylor v. Canada (Attorney General)
, 2012
    ONCA 479, 111 O.R. (3d) 161, at para. 75. In terms of this courts language in
Taylor
, what must be assessed are the
    interactions between WSIB and the class members. Does the Boards involvement
    in evaluating the claims of the class members bring the Board into relational
    proximity to them?

[81]

The third
Cooper
element considers whether there
    residual policy reasons to decline to impose a duty of care on WSIB. These are
    not concerned with the relationship between the parties, but with the effect of
    recognizing a duty of care on other legal obligations, the legal system and
    society more generally:
Cooper
,
    at para. 37: see also
Hill

v. Hamilton
‑
Wentworth Regional Police Services Board
, 2007
    SCC 41, [2007] 3 S.C.R. 129, at para. 31;
Syl
    Apps
, at para. 32; and
Fullowka v.
    Pinkertons of Canada Ltd.,
2010 SCC 5, [2010] 1 S.C.R. 132
, at para. 57.

[82]

Justice Cromwell explained in
Fullowka
,
    at para. 57, that in order to oust a
prima facie
duty of care once the first two
Cooper
elements have been established in the plaintiffs favour, the residual policy
    considerations must be more than speculative. He stated: They must be
    compelling; a real potential for negative consequences of imposing the duty of
    care must be apparent.

[83]

The analysis of the second and third
Cooper
elements is both
    fact and policy intensive in the context of a statute, as this court noted in
Williams
and as the case law demonstrates. That analysis was not undertaken by the
    motion judge or by the parties.

[84]

The WSIB has not satisfied me that the appellant has inadequately
    pleaded the elements of a negligence claim against the WSIB. The pleading
    refers to the relationships and to the interactions between the Board and the
    class members in the statutory context. The stage is set for the development of
    evidence relating to the application of the second and third
Cooper
elements.

(b)

Does the Privative Clause in the WSIA Prevent the Appellant from
    Pursuing Negligence?

[85]

I am not persuaded that the application of s. 118 of the WSIA leads to the
    result that the appellants negligence claim has no reasonable prospect of
    success. I note that s. 179 supports the argument that the WSIB is open to a
    negligence suit in the proper circumstances. It provides:

179. (1)
No action or other proceeding for
    damages may be commenced against any of the following persons for
an act or
    omission done or omitted by the person in good faith in the execution or
    intended execution of any power or duty under this Act
:

1. Members of the board of directors, officers
    and employees of the Board.

...

5. Physicians who conduct an assessment under
    section 47 (degree of permanent impairment).

6. Persons who are engaged by the Board to
    conduct an examination, investigation, inquiry, inspection or test or who are
    authorized to perform any function.

(2)

Subsection
    (1) does not relieve the Board of any liability to which the Board would
    otherwise be subject in respect of a person described in paragraph 1, 4, 5 or 6
of subsection (1).

(4)
No action or other proceeding may be
    commenced against a health care practitioner, hospital or health facility for
    providing information under section 37 or 47 unless he or she or it acts
    maliciously. (Emphasis added.)

[86]

Section 179 does shield certain people from personal liability for acts
    and omissions undertaken in good faith. But it also clearly recognizes that the
    Board may be vicariously liable for any such actionable acts or omissions.

D.

Disposition

[87]

For these reasons, I would allow the appeal and set aside the motion
    judges order striking the amended statement of claim without leave to amend
    and dismissing the action. However I would strike paras. 51-57 of the amended
    statement of claim relating to the bad faith claim, with leave to amend, in
    accordance with these reasons. The parties do not seek costs.

P. Lauwers J.A.

I agree Alexandra Hoy
    A.C.J.O.

I agree M.L. Benotto

Released: February 13, 2017

[1]

The motion judge did not mention

sub-rule
    21.01(3)(a) of the
Rules of Civil Procedure
in his reasons, and the
    respondent did not raise it in the factum or in oral argument. I do not address
    it further, except to observe that it is usually invoked where an arbitration
    clause or a forum selection clause is in issue, which is not the case here.


COURT OF APPEAL FOR ONTARIO

CITATION: Chen v. Canadian Imperial Bank of Commerce, 2017
    ONCA 166

DATE: 20170228

DOCKET: M46946 (M46874)

LaForme, Pepall and Pardu JJ.A.

BETWEEN

Sidney Chen

Moving Party

and

Canadian Imperial Bank of Commerce

Responding Party

Sidney Chen, acting in person

Jeff C. Hopkins and Justin Tetreault, for the responding
    party

Heard: February 24, 2017

ENDORSEMENT

Background

[1]

Mr. Chen brought an action against CIBC for wrongful dismissal. Amongst
    other defences, CIBC said the applicable limitations period had expired more
    than 3 years prior to the issuance of a notice of action. Mr. Chen then sought
    to discontinue his action by providing CIBC with a Notice of Discontinuance. He
    had issued an earlier Statement of Claim also seeking damages for wrongful
    dismissal but discontinued those proceedings.

[2]

After various procedural steps, CIBC stated it would consent to
    discontinuance only if discontinuance was with prejudice to Mr. Chens ability
    to bring a further action on the same subject matter. Mr. Chen initially
    resisted, but consented to these terms at an appearance before a judge of the
    Superior Court of Justice on October 8, 2015. The hearing judge granted the
    consent order.

[3]

Because Mr. Chen refused to approve the form of the consent order, on
    January 28, 2016 the parties returned before the hearing judge to settle the
    order. On this occasion Mr. Chen claimed he consented to the order because of
    mistake, mental health issues and misunderstanding. The hearing judge settled
    the order and advised Mr. Chen of his right to bring a motion to set the order
    aside.

[4]

On January 29, 2016, Mr. Chen took issue with the fact that the hearing
    judge on October 8, 2015 asked him whether he understood the terms of the
    agreement and their consequences  while also explaining he was not his lawyer
    and could not give him legal advice. He brought a motion to set aside the
    consent order discontinuing his action before another judge of the Superior
    Court of Justice.

[5]

On Mr. Chens motion he argued that the previous consent hearing judge
    improperly gave him legal advice, which invalidated his consent to
    discontinuance. He also argued that the transcript of proceedings before the
    consent hearing judge was fabricated and alleged a conspiracy between that
    judge and others.

[6]

Mr. Chens motion to set aside the consent order was denied by order
    dated April 28, 2016. It is this order Mr. Chen seeks to appeal.

This Motion

[7]

Mr. Chen did not file a notice of appeal in
    connection with the April 28
th
order within the required time. As a
    consequence he brought a motion to this court for an extension of time to
    appeal. On September 9, 2016, his motion was heard by a single judge of this
    court sitting in chambers. Mr. Chen did not file any affidavit evidence on the
    motion.

[8]

Mr. Chens submissions, however, to the chambers
    judge included a repeat of his
claims that he consented to the October
    8, 2015 order because of mistake, mental health issues and misunderstanding. He
    also asserted that the consent hearing judge improperly gave him legal advice,
    that the transcript of proceedings was fabricated, and repeated the allegation
    of a conspiracy between that judge and others. Finally, he alleged the motion
    judge on April 28, 2016 was unfair and biased.

[9]

On September 9, 2016, the chambers judge refused
    to grant Mr. Chens motion for an extension of time to appeal the order and
    refused to set aside the earlier consent order. She addressed his allegations
    of improper legal advice, fabricated transcripts, and unfairness and bias and
    correctly observed there was an absence of any evidence. She relied on the
    certified transcript of the October 8, 2015 proceedings and Mr. Chens own
    actions to conclude there was no support for Mr. Chens assertions.

[10]

The chambers judge found that Mr. Chen formed an
    intention to appeal in the requisite time period and provided a reasonable
    explanation for the relatively short delay. However, she held that the justice
    of the case did not warrant an extension; the appeal, she concluded, does not
    have any real chance of success.

[11]

Mr. Chens motion before this panel is to review
    the chambers judges order. He again, without any evidence, repeats all the
    allegations he made before the motion judge on April 28, 2016 and the chambers
    judge on September 9, 2016.

Conclusion

[12]

The motion must be dismissed. We agree with the
    chambers judge; the appeal, without any evidentiary basis, is meritless and
    there is no reason to grant an extension of time. Her exercise of discretion to
    refuse to extend the time to appeal is entitled to considerable deference. The
    circumstances in which a panel of this court will reconsider the decision of a
    single judge of this court to deny an application for an extension of time are
    narrow:
R. v. Gatfield
, 2016 ONCA 23, 345
    O.A.C. 197, at para. 11. This case does not fit within them.

[13]

Here, the chambers judge addressed all the
    relevant factors and properly applied those factors to the evidentiary record
    in connection with the issue of an extension of time. She was fair and
    accommodating in her consideration of the other allegations Mr. Chen raised
    without the benefit of evidence. We see no basis whatsoever to interfere with
    her discretionary decision to deny an extension of time to appeal. Indeed, as
    the chambers judge found, the justice of the case requires that no extension of
    time to appeal be granted.

[14]

Mr. Chens motion is dismissed. His outrageous
    allegations that judges, lawyers and a court reporter have conspired together
    to commit fraud, without any evidence at all to support those claims, is
    deserving of denunciation.  This conduct merits an award of substantial
    indemnity costs. CIBC is, therefore, awarded its costs of the motion fixed in
    the amount of $11,791.96, inclusive of disbursements and HST.

H.S.
    LaForme J.A.

"S.E. Pepall
    J.A."

G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Cheng v. Liu, 2017 ONCA 104

DATE: 20170208

DOCKET: C62435

Strathy C.J.O., MacPherson and Hourigan JJ.A.

BETWEEN

Li
    Cheng

Applicant

(Respondent
    in Appeal)

and

Yangzhou
    Liu a.k.a. Yang Zhou Liu a.k.a. Steele Liu

Respondent
    (Appellant)

Steven M. Fehrle, for the appellant

Christopher P. Goldson, for the respondent

Heard: January 9, 2017

On appeal from the order of Justice David Price of the
    Superior Court of Justice, dated June 13, 2016, with reasons reported at 2016
    ONSC 3911.

Hourigan J.A.:

Overview

[1]

The issue on this appeal is whether an Ontario court has jurisdiction to
    award child support, spousal support, and equalization of net family property after
    a foreign court has issued a divorce.

[2]

The trial judge ruled that the Superior Court had jurisdiction to adjudicate
    a claim for corollary relief under the
Divorce Act
, R.S.C. 1985, c. 3
    (2d. Supp.), despite the fact that the parties divorce had been validly
    granted by a foreign court. In so ruling, he distinguished the case from
Okmyansky
    v. Okmyansky
, 2007 ONCA 427, 86 O.R. (3d) 587, where this court reached
    the opposite conclusion.

[3]

I accept the submission of the appellant that the trial judge erred in
    finding jurisdiction based on the
Divorce Act
and in distinguishing
Okmyansky
.
    However, for reasons that I will explain below, I am of the view that the
    Ontario Superior Court has jurisdiction to determine the issues of child
    support and equalization of net family property pursuant to the
Family Law
    Act
, R.S.O. 1990 c. F. 3 (the
FLA
). There is, in my view, no
    jurisdiction under that legislation, or otherwise, for the Superior Court to
    order spousal support in this case.

Facts

[4]

The factual circumstances of this case are unusual and are relevant to
    the issue of the jurisdiction of the Superior Court. Accordingly, they merit a
    detailed recitation in order to place the legal issues in context.

[5]

The appellant is a Canadian citizen who has resided in Mississauga since
    at least 2005. He is an engineer, and all of his assets, property and sources
    of income are in Canada.

[6]

The respondent resides in Taian City in China, where she works as an
    office clerk. She has never been to Canada.

[7]

The parties were married in China on August 7, 2006. A daughter
    (Chang) was born on February 3, 2007 and has resided with the respondent in
    China her entire life. The parties separated either on December 14, 2007 (the
    appellants claim) or January 15, 2008 (the respondents claim). For most of
    the marriage, the appellant was in Canada and the respondent in China. If there
    was a period of cohabitation, it was extremely short.

[8]

The respondent brought a divorce application in the Ontario Superior
    Court on March 28, 2009. She sought a divorce, as well as spousal support, child
    support, and custody of Chang (corollary relief) pursuant to the
Divorce
    Act
, and equalization of net family property pursuant to the
FLA
.

[9]

On January 26, 2010 the appellant brought a divorce application in
    China, seeking a divorce, custody of Chang, and equalization of property.

[10]

Meanwhile, in Canada the respondent brought a motion in front of Quigley
    J., who, on February 17, 2010 ordered the appellant to pay temporary child
    support of $825 monthly.

[11]

On April 15, 2010 the appellant brought a motion in front of Baltman J.,
    seeking to have the matrimonial proceeding stayed in Ontario so that it could
    be heard in China. The respondent sought to have the application heard in
    Ontario. Baltman J. concluded that the Ontario court had jurisdiction to hear
    the application, as the husband had been resident in Ontario for the year
    immediately preceding the commencement of the proceeding. However, she noted
    that the issues of custody and access would necessarily have to be determined
    in China, where Chang resided. Thus, if the respondent were successful on the
    motion, there would have to be two court cases.

[12]

Additionally, given the brevity of the marriage, Baltman J. found that
    the pivotal issue was child support, and logically child support should be
    decided in the same forum as custody and access. Thus, Baltman J. concluded
    that China was the more appropriate forum for the matrimonial proceeding, and
    that the application in Ontario should be stayed.

[13]

Baltman J. was concerned to ensure that any child support order made in
    China could be enforced against the appellant and his Canadian assets. She
    stated the husband will be held to his undertaking to this court to abide by
    Chinese court orders. The court ordered the respondents application stayed on
    the following terms:

(a)

The appellant shall comply promptly with all procedural orders and rules
    of the courts of China in the case now pending there between the parties, as it
    may be amended or reconstituted, including orders and rules relating to
    disclosure of documents and information and submission to questioning in China
    for purposes of a motion or preparation for trial.

(b)

The appellant shall comply promptly with all substantive orders of the
    courts of China in the case now pending there between the parties, as it may be
    amended or reconstituted, including orders relating to custody, access, child
    support, spousal support, ownership of property, liability for debts, division
    of matrimonial property and debts, and the granting of divorce.

(c)

If
    the appellant does not comply with the above terms, the respondent may move in
    this court on five working days notice to the appellant to lift the stay
    imposed by this order.

[14]

The proceeding advanced in China. The Chinese family court granted the
    divorce and awarded custody of Chang to the respondent. The respondent was also
    granted sole ownership of the real property she had purchased in China prior to
    the marriage. Because of the way disclosure works in the Chinese legal system,
    the respondent did not learn that the appellant had not made full financial
    disclosure until the release of the judgment in China.

[15]

The Chinese family court stated, This court ordered the applicant (i.e.
    the husband) to fully disclose, within a timeframe, his properties and income
    in Canada. However, the applicant failed to disclose and he only provided a
    Declaration. In the Declaration, the applicant claimed that his income in
    Canada was $150 per month. While the Chinese court noted that the appellant
    should pay child support, there was no evidence of the appellants income and
    properties in Canada, and consequently no basis to make a support order. The
    respondent also argued that such claims were best resolved in Canada.

[16]

The court thus declined to exercise its jurisdiction and determine
    support and equalization. It directed that if the parties could not reach an
    agreement on these issues, an application could be brought in Canada.

[17]

The appellant appealed the decision of the Chinese family court. The
    Chinese Appeal Court released its decision on September 7, 2012, holding that:

All of the assets and properties in
    dispute are located in Canada. Because the court was not able to determine the
    true income of [the husband], the child support amount could not be determined.
    In addition the trial court has agreed to [the wifes] claim that the Chinese
    court is not the best forum to decide this issue.

[18]

The appellant next applied to the Chinese Court of Appeal for a retrial.
    The Chinese Court of Appeal dismissed the application on December 25. 2013. It
    held:

All disputed assets are located in Canada, and the courts could
    not determine the actual income of [the husband]. Therefore the child support
    amounts could not be determined Therefore, the judgments of the trial court
    and the Court of Appeal with respect to the child support and family assets are
    correct.

[19]

Following this, the respondent brought a motion in Ontario Superior
    Court to lift the stay of the Ontario application, arguing that the stay should
    be lifted because the appellant had breached the orders of the Chinese court to
    make full financial disclosure, and breached the undertaking and terms in
    Baltman J.s stay order. Ultimately, a consent order was entered, which lifted the
    stay without prejudice to the issue of retroactive support.

[20]

A trial management conference was held on June 19, 2015. The Superior
    Court, on its own initiative, ordered the trial bifurcated, so that the
    threshold issue of jurisdiction could be determined first. If the court
    determined that it had jurisdiction, a trial on the merits would be held on the
    issues of spousal support, child support, and equalization.

[21]

On August 4, 2015 the respondent amended her application so that her
    claims for spousal and child support were made pursuant to the
FLA
in
    addition to the
Divorce Act
. The appellant consented to the amended
    application. The trial on jurisdiction proceeded before the trial judge.

Decision of the Trial Judge

[22]

The trial judge described the issue before him as whether the Superior
    Court was precluded from assuming jurisdiction in light of
Okymansky
,
    or whether the facts of the instant case were so different that the court could
    entertain the respondents application for support and equalization,
    notwithstanding the Chinese divorce.

[23]

The trial judge provided several reasons why this case was
    distinguishable from
Okymansky
and thus why the Superior Court could
    assume jurisdiction, notwithstanding
Okymansky
. At the end of his
    judgment, at para. 47, the trial judge provided a summary of five bases on
    which
Okmyansky
was distinguishable:

1.

The
    respondent commenced her proceeding in Ontario before the appellant commenced
    his proceeding in China and well before the court in China granted him a
    divorce.

2.

The
    court in Ontario stayed the respondents application provisionally, on
    conditions that the appellant later breached.

3.

The
    appellant procured his foreign divorce in a proceeding in which he misled the
    court in China by making a false declaration as to his income, and thereby
    prevented that court from determining the issue of support.

4.

The
    court in China explicitly declined to exercise its jurisdiction over economic
    issues, including support and division of property, and explicitly left those
    issues for the court in Canada to determine.

5.

Without
    the court in Canada assuming jurisdiction over the issues of support and
    division/equalization of property, the respondent will be left without any
    forum in which to make her claims.

[24]

The text of the trial judges order was: The Superior Court of Justice
    has jurisdiction to determine the issues of child support, spousal support, and
    equalization of net family property.

Issues

[25]

The appellant concedes that the Ontario courts have jurisdiction under
    the
FLA
to adjudicate the issue of equalization of net family
    property. The respondent does not submit that she can seek spousal support
    under the
FLA
.

[26]

Thus, the appeal raises the following issues:

1.

Does an Ontario court have
    jurisdiction to hear and determine a corollary relief proceeding under the
Divorce
    Act
following a valid divorce in a foreign jurisdiction?

2.

Does an Ontario court have jurisdiction under the
FLA
to
    determine the issue of child support after a foreign court has issued a divorce?

Analysis

(i)
Divorce Act

[27]

I accept that the facts of the present case are significantly
    different then the facts of
Okmyansky.
Notably, the respondents
    application in Ontario predated the Chinese application, whereas in
Okmyansky
the

Ontario application was commenced after the foreign divorce
    was issued. However, the courts analysis in
Okmyansky
was based on an
    exhaustive review of the legislative history of the
Divorce Act
, and not
    on the particular facts of the case. Having undertaken that analysis, Simmons
    J.A. concluded, at para. 33, that there is nothing in the legislative history
    of the
Divorce Act
to indicate that Parliament intended the 1993
    amendment to confer jurisdiction on Canadian courts to hear and determine a
    corollary relief proceeding following a valid divorce in a foreign
    jurisdiction.

[28]

Okmyansky
is clear and unequivocal authority that an Ontario
    court does not have jurisdiction to hear and determine a corollary relief proceeding
    under the
Divorce Act
following a valid foreign divorce. Simmons J.A.
    held, at para. 38, that without a divorce granted in Canada, a support order could
    not properly be viewed as corollary relief.

[29]

Various superior court cases have followed
Okmyansky
in the
    last ten years. Thus the court in
Stefanou v. Stefanou,
2012 ONSC
    7265, 47 R.F.L. (7th) 385, held, at para. 170, that [i]f the divorce is not
    granted pursuant to the
Divorce Act
, then there is no divorce to which
    corollary relief may be incidental. The British Columbia Court of Appeal came
    to the same conclusion in
L.R.V. v. A.A.V.
, 2006 BCCA 63, 52 B.C.L.R.
    (4th) 112, holding that the Supreme Court of British Columbia has no
    jurisdiction under the
Divorce Act
to grant corollary relief founded
    upon a foreign divorce.

[30]

In my view, the trial judge erred in law when he attempted to
    distinguish this case from
Okmyansky.
That case was binding authority,
    and nothing in the unique circumstances of this case serves to confer
    jurisdiction where the statute does not provide jurisdiction. Simply put, there
    is no jurisdiction for an Ontario court to grant corollary relief under the
Divorce
    Act
after a foreign court has validly issued a divorce.

[31]

In his reasons, the trial judge also relied on the forum of necessity
    doctrine, as described by Sharpe J.A. in
Van Breda v. Village Resorts Ltd.
,
    2010 ONCA 84, 98 O.R. (3d) 721. This doctrine allows a forum to take
    jurisdiction despite the absence of a real and substantial connection, where
    there is no other forum in which the plaintiff could reasonably seek relief. In
    my view, this doctrine is not applicable to this case. Ontario does have a real
    and substantial connection in this case by virtue of the appellants residence
    in Ontario. In my view, if the Ontario court has jurisdiction, it is clear that
    Ontario is an appropriate forum.

[32]

Given my conclusion on the absence of jurisdiction under the
Divorce
    Act
, it is unnecessary to decide the point, but there may also be
    constitutional issues underlying the inability of courts to award corollary
    relief pursuant to the
Divorce Act
without a valid Canadian divorce.
    As noted by the British Columbia Court of Appeal in
L.R.V.
, it is
    arguable that if Parliament extended the jurisdiction to Canadian courts to
    grant corollary relief pursuant to the
Divorce Act
based on foreign
    divorces, this would be an unconstitutional invasion of provincial jurisdiction
    over property and civil rights.

(ii)
FLA

[33]

The appellant does not dispute the jurisdiction of the Ontario courts to
    adjudicate the issue of equalization of net family property under the
FLA
,
    notwithstanding the foreign divorce. There was a clear finding to this effect
    in
Okmyansky
, at para. 43.

[34]

The respondent does not submit that it is open to her to seek spousal
    support under the
FLA
. In
Okmyansky
, at para. 42, the court,
    relying upon
Rothgiesser v. Rothgiesser
(2000), 46 O.R. (3d) 577
    (C.A.), noted that there is no provision in the
FLA
that entitles a
    former spouse to claim support under that Act.

[35]

The question that remains is whether an
    Ontario court has jurisdiction under the
FLA

to award child support after a foreign court
    has issued a divorce. This is an issue that was not considered in
Okmyansky.

[36]

Recall that in the respondents initial application, dated March 28,
    2009, she sought spousal and child support pursuant only to the
Divorce Act
.
    However, in her amended application dated August 4, 2015 she sought spousal and
    child support pursuant to both the
Divorce Act
and the
FLA
.

[37]

The only case dealing with the jurisdiction
    of an Ontario court to order child support following a foreign divorce is
Morwald-Benevides
    v. Benevides
, 2014 ONSC 699, 44 R.F.L. (7th) 432, at para. 18. In that
    case,

the court

distinguished
Okmyansky
on the basis
    that the wife was not seeking corollary relief, but rather was seeking child
    support as a matter of provincial law under the
FLA
.

[38]

There is also a line of jurisprudence developed in the trial courts that
    holds that where a court in a province has issued a divorce, but has not dealt
    with child support, then the courts in another province have jurisdiction to
    order child support pursuant to provincial legislation. The case law is mostly
    older, as the importance of this issue decreased following the 1993 amendments
    to the
Divorce Act
. Prior to these amendments, the only court with
    jurisdiction to hear a claim for corollary relief was the court of the province
    that had granted the divorce. Following the amendments, the courts of any
    province where one of the former spouses has resided for at least a year have
    jurisdiction to hear a corollary relief claim, as do the courts of any province
    to which both spouses attorn.

[39]

An example of this line of authority is
Seary
    v. Seary
, [1994] O.J. No. 3929 (Gen. Div.). There LaForme J. (as he then
    was) quoted, at para. 5, the earlier case of
Pageau v. Szabo
, 1986
    CarswellOnt 3651 (Prov. Ct.), for the proposition that so long as the divorce
    court has not in any way adjudicated on the matter of child support, it is open
    to a party thereafter to invoke provincial law for relief.

[40]

In
Pageau
,

James J.
    conducted a lengthy review of the jurisprudence on this question. He held, at
    para. 9, that following a divorce, the court that granted the divorce would
    have exclusive jurisdiction over child support in the following situations:

(a)

whenever the divorce
    court has granted child support, no matter how nominal or how limited in time;

(b)

whenever the divorce
    court, after considering the question of support, has
refused
to grant
    it or rejected the prayer to grant it; or

(c)

whenever the divorce
    court has
reserved
its right to make subsequent pronouncements on
    support. [Emphasis in original.]

[41]

According to James J., in any such situation, a court acting under the
    provincial statute would be barred from dealing with the issue of child
    support. Where, however, the divorce court has not dealt with child support in
    one of these three ways, then there is scope for the operation of provincial
    law, even if the divorce court has exercised its jurisdiction in making a
    custody order.

[42]

Similarly, in
French v. Mackenzie
(2003), 38 R.F.L. (5th) 81
    (Ont. S.C.), at para. 8, Kennedy J. explained that if there has been a divorce
    but no child support order was made under the
Divorce Act
, the option
    exists to bring child support proceedings under either federal or provincial
    legislation. In that case, there had been a divorce granted, but no
    adjudication on child support, as there had been an informal agreement between
    the parents. Kennedy J. held that the mother had the option of bringing her
    child support application under the
FLA
,

or as a corollary
    relief proceeding under the
Divorce Act
. This case was cited most
    recently in
Durso v. Mascherin
, 2013 ONSC 6522. Chappel J. noted, at
    para. 14: see para. 50:

[T]he parties were divorced on May
    18 2001, in the context of a Divorce Application that did not include any child
    support claims. The court dealing with the divorce did not in any way
    adjudicate on the matter of child support. In such circumstances, either party
    had the right at a later time to commence a new proceeding to advance child
    support claims under either the
Divorce Act
as a separate
    corollary relief proceeding, or pursuant to the
Family Law Act.

[43]

This line of jurisprudence is helpful in the analysis of the issue in
    the present case. It stands for the proposition that where a court issuing a
    divorce has not adjudicated the issue of child support, provincial legislation
    is a valid means of seeking a child support remedy.

[44]

In my view, the principles developed in the case law are analogous to a
    situation where a foreign court grants a valid divorce, but does not deal with
    child support. In the present case, while there is a valid divorce in place issued
    by the Chinese court, that court has expressly ruled that the issue of child
    support is better determined by the Ontario courts.

[45]

There is also no statutory prohibition against utilizing the
FLA
in such circumstances. Indeed, the use of the
FLA
to provide a remedy is
    entirely consistent with the statuary objective of ensuring that parents
    provide support for their dependent children.

[46]

Counsel for the appellant does not argue that there is any impediment in
    the
FLA
to the court assuming jurisdiction after the issuance of a
    foreign divorce. His argument is that relief under the
FLA
is not
    available due to the constitutional doctrine of paramountcy. According to the
    appellant, given that the respondent initially sought an order for child
    support under the
Divorce Act
, a remedy under the
FLA
is not
    available. I would not accede to this argument for the following reasons.

[47]

The appellants understanding of the doctrine of paramountcy is outmoded
    and inconsistent with the law that has developed over the last thirty years. In
    the past, when a divorce was claimed, support had to be claimed and awarded
    under the
Divorce Act
, as Parliament had occupied the field of
    support upon divorce. Provincial legislation that might also have provided
    support upon divorce was rendered inoperative pursuant to the doctrine of
    paramountcy. This changed when the Supreme Court fundamentally altered the
    doctrine of paramountcy in the early 1980s, so now provincial legislation is
    rendered inoperative only if the federal and provincial legislation are
    operationally incompatible:
Canadian Western Bank v. Alberta
, 2007 SCC
    22, [2007] 2 S.C.R. 3, at paras. 69-75;
Multiple Access Ltd v. McCutcheon
,
    [1982] 2 S.C.R. 161.

[48]

The case law makes clear that there is no operational incompatibility
    between the
Divorce Act
and provincial family law legislation. Child
    support can be claimed under provincial legislation following a divorce. Thus,
    in
Gomes v. Gomes
(1985), 47 R.F.L. (2d) 83 (B.C. S.C.), the court
    decided that there was no conflict between the
Divorce Act
and the
    British Columbia provincial legislation in terms of child support. It held, at
    para. 34:

When the order can be made under
    either Act a judge will make his or her order under the
Divorce Act
in
    preference to the
Family Relations

Act
, but if the judge
    finds an obstacle in making the order under s. 11 of the
Divorce Act
there is nothing to preclude the judge from making the order under the
Family
    Relations Act
.

[49]

Likewise, in
Abernethy v. Peacock
, (2009), 68 R.F.L. (6th) 456
    (Ont. S.C.), discussing the context of varying a
FLA
support

order
    following a divorce proceeding being initiated, the court held, at paras. 20-21:

[T]he jurisdiction of the provincial court would only be
    superseded by the doctrine of paramountcy if support were ruled on in the
    divorce proceeding A court can apply provincial legislation even if there is
    federal legislation in the field as long as applying the provincial legislation
    is not operationally incompatible with the federal legislation. Thus if there
    is a support order under the
Family Law Act
and no support order under
    the
Divorce Act
, there is no operational incompatibility.

[50]

See also
Ward v. Spear
, (1999), 46 R.F.L. (4th) 396 (Ont.
    S.C.),
Slattery v. Slattery
(1993), 48 R.F.L. (3d) 38 (B.C. S.C.), and
Smith v. Kozakevich
(1988), 63 Sask. R. 68 (Q.B.).

[51]

In the present case, no court has adjudicated in a manner that has
    operationalized the
Divorce Act
, either in granting a divorce or
    granting corollary relief. Indeed, the appellant has argued vociferously that
    there is no jurisdiction under the
Divorce Act
to award child support.
    It would be a perverse result if he could at the same time argue that a mere
    reference to that legislation in the original application of the respondent prevents
    a court from exercising its authority to award child support under the
FLA
.
    In that regard, I wholly endorse the sentiments expressed in
Emerson v.
    Emerson,
[1972] 3 O.R. 5 (H.C.). In that case, the wife sought child
    support under the provincial legislation in Ontario, while the husband objected
    that only New Brunswick had jurisdiction to award such support, as it had
    granted the divorce. The court held, at paras. 25-26:

[I]n the matter of the future and
    welfare of infants, there need be no absolutes or imperatives. It would be a
    great pity if constitutional doctrine had to be so applied as to prevent a
    court, able to help a child, from doing so. It is the rule of common sense that
    I should hear this application.

[52]

Ontario courts have authority to award child support under s. 33 of the
FLA
.
    There is nothing in the legislation that restricts that authority in situations
    where a divorce order has been granted outside of Canada. The use of the
FLA
in circumstances where relief under the
Divorce Act
is unavailable
    does not engage the paramountcy doctrine, as there is no operational
    incompatibility between the federal and provincial statues. To the contrary,
    the two statutes are operating harmoniously to ensure that a remedy for child
    support is available.

Disposition

[53]

I would dismiss the appeal but vary the order below as follows:

The Superior Court of Justice
    has jurisdiction pursuant to the
FLA
to determine the issues of child
    support and equalization of net family property.

[54]

The respondent as the successful party is entitled to costs of the
    appeal, which I would fix at $11,000, inclusive of fees, disbursements, and
    taxes.

C.W. Hourigan J.A.

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

I agree J.C.
    MacPherson J.A.

Released: February 8, 2017


COURT OF APPEAL FOR ONTARIO

CITATION: Cuervo-Lorens v. Carpenter, 2017
    ONCA 109

DATE: 20170209

DOCKET: C62552

Simmons, Lauwers and Hourigan JJ.A.

BETWEEN

Ralph Cuervo-Lorens and Carla Zabek

Plaintiffs (Appellants)

and

Lynda L.
    Carpenter, Burloak Real Estate Services Inc., and
    Michael OSullivan

Defendants (Respondents)

Ralph Cuervo-Lorens, in person

Daniel McConville, for the respondent Lynda L. Carpenter

Amanda Gibson, for the respondents Burloak Real Estate
    Services and Michael OSullivan

Heard and released orally: February 6, 2017

On appeal from the judgment of Justice Dale Parayeski of
    the Superior Court of Justice, dated July 20, 2016.

ENDORSEMENT

[1]

The appellants do not dispute that they wrongfully repudiated an
    agreement of purchase and sale to purchase the respondents home in Burlington
    for $1,120,000.  They appeal from a summary judgment ordering them to pay the
    difference in purchase price and related expenses following the vendors
    subsequent resale of the property.

[2]

The motion judge concluded that the respondent acted reasonably in
    mitigating her damages.  The property was relisted shortly after the
    repudiation through the same agent that handled the sale to the appellants.
    The property was resold approximately two months after it was relisted.

[3]

The appellants did not file opinion evidence on the summary judgment
    motion indicating the steps taken on the resale were unreasonable or concerning
    the $50,000 price differential.  In the absence of such evidence, we see no
    basis on which to interfere with the motion judges decision to dismiss the
    action as against the vendor.

[4]

As for the dismissal of the action against the broker and the agent, the
    appellants have acknowledged in this court that the only reason for adding them
    as parties to the action was to obtain disclosure of their file and the
    relevant MLS and market data.  In light of this acknowledgement, we see no
    basis on which to interfere with the motion judges decision to dismiss the
    entire action.

[5]

The appeal is dismissed.  The respondent vendor is entitled to his costs
    on a partial indemnity scale fixed in the amount of $8,500 inclusive of
    disbursements and applicable taxes.  The respondent agent and broker are
    entitled to their costs in the global sum of $1,000 on a partial indemnity
    scale inclusive of disbursements and applicable taxes.

Janet Simmons J.A.

P. Lauwers J.A.

C.W. Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Damallie v. Ping, 2017 ONCA 146

DATE: 20170217

DOCKETS: M44332, M46611, M46612, M46614 & M46729

MacFarland, van Rensburg and Huscroft JJ.A.

BETWEEN

Clifton Anthony Damallie

Plaintiff/Appellant

and

Dr. Peony Ping

Defendant/Respondent

Julia Lauwers for the defendant/respondent

Clifton Damallie, acting in person

Motion in writing

ENDORSEMENT

[1]

This matter is referred to a panel of this court by order of Gillese J.A.
    dated July 27, 2016 pursuant to rule 2.1.01. This rule provides that the court
    may on its own initiative, stay or dismiss a proceeding if the proceeding
    appears on its face to be frivolous or vexatious or otherwise an abuse of the
    process of the court.

[2]

This matter had its genesis in a Small Claims Court action brought by
    Mr. Damallie against Dr. Peony Ping. He alleged professional negligence in his
    dental treatment at the hands of Dr. Ping in February, 2012. His action was
    dismissed by Deputy Judge Shapiro on July 4, 2013.

[3]

On January 8, 2014, Mr. Damallie brought a motion before Sachs J.,
    sitting as a single judge of the Divisional Court for an extension of time to
    file a Notice of Appeal from the decision of the Deputy Judge. His motion was
    dismissed. Sachs J. found for reasons she gave, that the claim was without
    merit.

[4]

On January 10, 2014, Mr. Damallie filed a notice of motion to set aside
    the order of Sachs J. On September 24, 2014 a three-judge panel of the
    Divisional Court dismissed that motion.

[5]

On October 14, 2014 Mr. Damallie filed a notice of motion seeking leave
    to appeal to this court from the decision of the Divisional Court. He did not
    perfect his motion for leave within the time requirements of the Rules and
    since that time he has brought numerous motions before this court seeking
    extensions of time to bring his motion for leave and when refused, further
    motions to review the orders of the single judges of this court before a panel.

[6]

He sought an extension of time before Weiler J.A. on April 8, 2015, and
    his motion was dismissed. He then sought to set aside Weiler J.A.s order. He
    again failed to comply with the time requirements and appeared before Roberts J.A.
    on July 29, 2015, seeking an extension of time to review the order of Weiler
    J.A. and again, his motion was dismissed.

[7]

In seeking to review Roberts J.As order, again he missed time
    requirements and his motion was dismissed for delay by the Registrar. He sought
    to set aside the Registrars order before Hourigan J.A. on February 17, 2016.
    Again his motion was dismissed.

[8]

There have been further orders and further appearances. A motion seeking
    an extension of time to set aside the order of Hourigan J.A. was dismissed by Hoy
    A.C.J.O. on April 14, 2016.

[9]

Further motions that were outstanding came on for hearing before Gillese
    J.A. on July 27, 2016. At that time, she issued a stay order covering all
    pending proceedings pending a referral to a panel of this court.

[10]

Mr. Damallie simply does not accept the findings of the trial judge, the
    four judges of the Divisional Court and the many judges of this court that his
    action against Dr. Ping is without merit and has no chance of success.

[11]

He continues to bring motions one after another, often without serving
    Dr. Ping or her counsel as he is required to do.

[12]

We do not hesitate to conclude that these motions are frivolous,
    vexatious and an abuse of the process of the court.

[13]

Any and all of the outstanding motions and any proceeding now before this
    court in the matter are dismissed.

[14]

Further, it is ordered that Mr. Damallie may not bring any further
    motions or proceedings in this matter without leave of a judge of this court.
    Any such motion seeking leave must be made in writing and will only be accepted
    if proof of service on Dr. Pings counsel is included with his materials at the
    time of filing.

[15]

In addition, Mr. Damallie is required to satisfy all outstanding costs
    orders made against him by judges and the Registrar of this court before he may
    bring any such motion.

To date those orders are:

$500.00

Weiler J.A.

April 8, 2015

$500.00

Roberts J.A.

July 29, 2015

$750.00

Registrar

December 4, 2015

$1,000.00

Hourigan J.A.

February 17, 2016

$750.00

Registrar

April 14, 2016

Total: $3,500.00

[16]

An order will issue in accordance with these reasons.

J. MacFarland J.A.

K. van Rensburg J.A.

Grant Huscroft J.A.