COURT OF APPEAL FOR ONTARIO

CITATION: Canaccord Capital
    Corporation v. Roscoe, 2013 ONCA 378

DATE: 20130607

DOCKET: C56260

Sharpe, Epstein and Pepall JJ.A.

BETWEEN

Canaccord Capital Corporation

Plaintiff (Respondent)

and

Gregory Roscoe

Defendant (Appellant)

John Melia, for the appellant

Helen Daley, for the respondent

Heard: March 12, 2013

On appeal from the order of Justice Heidi Polowin of the Superior
    Court of Justice, dated October 19, 2012, with reasons reported at 2012 ONSC
    5714, 222 A.C.W.S. (3d) 247.

Sharpe
    J.A.:

[1]

This appeal raises the issue of the scope of s. 18 of the
Limitations
    Act
,
2002
, S.O. 2002, c. 24, Sched. B (theAct), which governs
    claims for contribution and indemnity brought by one wrongdoer against another.
    Is a claim for indemnity by an employer against an employee for an amount paid
    by the employer to settle a claim brought by a client for damages caused by the
    wrong of the employee governed by s. 18?

FACTS

[2]

The appellant, Gregory Roscoe (Roscoe), was an investment advisor
    employed by the respondent, Canaccord Capital Corporation (Canaccord), an
    investment dealer. Roscoes employment agreement contained a provision
    providing that Roscoe would indemnify Canaccord for any claim made against
    Canaccord arising out of Roscoes acts or omissions within or without the
    course of his activities or employment.

[3]

In August 2008, two of Roscoes former clients, Thomas and Kathleen
    Cavanagh (the Cavanaghs), served Canaccord and Roscoe with a statement of
    claim for losses arising out of an investment for which Roscoe was their
    investment advisor. The statement of claim alleged that both Roscoe and
    Canaccord owed the Cavanaughs a duty of care,
inter alia
, to assess
    their risk tolerance and to use due diligence with respect to investment
    recommendations. It further alleged that that duty had been breached by both Roscoe
    and Canaccord and asserted a claim for damages.

[4]

Canaccord funded a joint defence and delivered a joint statement of
    defence.. Canaccord did not cross-claim against Roscoe for indemnity. In April
    or May 2009, Canaccord entered settlement discussions with the Cavanaghs.
    Roscoe retained independent counsel who advised Canaccord that Roscoe denied
    any wrongdoing, would dispute any indemnity claim and reserved his right to
    assert any available defences to any claim for indemnity. In July 2009, without
    Roscoes involvement, Canaccord settled with the Cavanaghs.

[5]

In January 2010, a vice-president at Canaccord wrote to Roscoe
    requesting indemnification pursuant to Roscoes employment agreement. Article
    5.02 of the agreement provides:

In the event that any claim is made against the Company or the
    Company is found vicariously liable or jointly or severally liable with the
    Registered Representative resulting from a claim made against the Registered
    Representative and/or the Company principally arising out of an act or omission
    of the Registered Representative within or without the course of his activities
    or employment, the Registered Representative shall be responsible for and shall
    indemnify, reimburse and save harmless the Company for all losses, damages or
    amounts due to any claimant and as well as e [
sic
] expenses or costs
    including legal fees reasonably incurred by the Company in defence of any claim
    or legal action arising from such act or omission. Such liability of the
    Registered Representative shall extend to indemnify and reimburse the Company
    as aforesaid whether or not such liability arises as a result of a judgment of
    a court of law, decision of an administrative body, an arbitration [award] or a
    settlement reasonably made by the Company to avoid the necessity of a trial or
    hearing.

[6]

Through a letter from his counsel in February 2010, Roscoe denied any
    liability and resisted Canaccords claim for indemnification.

[7]

In June 2011, almost three years after the delivery of the Cavanagh
    statement of claim, Canaccord commenced this indemnity action against Roscoe,
    claiming the amount of the settlement plus Canaccords legal fees. The claim is
    pleaded as a claim for damages for breach of contract. The basis for the claim
    against Roscoe is pleaded as follows:

9. Roscoe is liable to indemnify Canaccord for the amount it
    paid to settle the Cavanaghs Claim and for its legal fees pursuant to his
    Employment Agreement with Canaccord. The Employment Agreement specifically
    provides that Roscoe is required to indemnify, reimburse and save harmless
    Canaccord for all amounts paid to settle claims by Roscoes clients together
    with the legal fees reasonably incurred by Canaccord in relation to those
    claims.

10. In the alternative, it is an accepted custom and practice
    within the retail investment industry that investment advisors such as Roscoe
    indemnify their employer for [monies] paid on the advisors behalf to
    compensate clients in circumstances such as those arising in the Cavanagh
    Claim.

11. Notwithstanding Canaccords demand that Roscoe honour his
    obligation to indemnify it for its legal fees and the amount which it paid to
    settle the Cavanagh Claim, Roscoe has neglected or refused to do so.

[8]

In May 2012, Roscoe brought a motion for summary judgment dismissing the
    action, arguing that as Canaccords action was commenced more than two years
    after Canaccord was served with the Cavanagh claim, it was time-barred by
    operation of s. 18 of the Act. The motion judge dismissed the motion and Roscoe
    appeals.

LEGISLATION

[9]

Section 18 of the Act governs claims by one alleged wrongdoer against
    another for contribution and indemnity. It provides for a two-year limitation
    period that runs from the date the wrongdoer claiming contribution and
    indemnity was served with the claim of the injured party:

Contribution
    and indemnity

18.  (1)  For the purposes of subsection 5 (2) and
    section 15, in the case of a claim by one alleged wrongdoer against another for
    contribution and indemnity, the day on which the first alleged wrongdoer was
    served with the claim in respect of which contribution and indemnity is sought
    shall be deemed to be the day the act or omission on which that alleged
    wrongdoers claim is based took place. 2002, c. 24, Sched. B, s. 18 (1).

Application

(2)  Subsection (1) applies whether the right to
    contribution and indemnity arises in respect of a tort or otherwise. 2002, c.
    24, Sched. B, s. 18 (2).

[10]

The
    basic limitation period is two years and applies without reference to any
    specific causes of action to claims not otherwise specifically addressed in the
    Act. Sections 4 and 5 of the Act provide:

Basic limitation period

4.  Unless this Act provides otherwise, a proceeding
    shall not be commenced in respect of a claim after the second anniversary of
    the day on which the claim was discovered. 2002, c. 24, Sched. B, s. 4.

Discovery

5.  (1)  A claim is discovered on the earlier of,

(a) the day on which the person with the claim first
    knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by
    or contributed to by an act or omission,

(iii) that the act or omission was that of the
    person against whom the claim is made, and

(iv) that, having regard to the nature of the
    injury, loss or damage, a proceeding would be an appropriate means to seek to
    remedy it; and

(b) the day on which a reasonable person with the
    abilities and in the circumstances of the person with the claim first ought to
    have known of the matters referred to in clause (a). 2002, c. 24, Sched. B, s.
    5 (1).

MOTION FOR SUMMARY JUDGMENT

[11]

The
    motion judgeheld that s. 18 was not applicable because the provision did not
    apply to indemnity claims arising out of contract. She found that Canaccords
    actions did not assert a claim for contribution and indemnity as between one
    wrongdoer and another. In her view, Canaccords action was more properly
    categorized for limitations purposes as a claim for breach of Roscoes
    employment contract, and that it was therefore governed by the basic two-year
    limitation period that ran from the date Canaccord settled the Cavanagh action.
    The motion judge held that a breach of contract claim for damages is
    fundamentally different from a claim for contribution and indemnity as between two
    wrongdoers and that s. 18 does not apply to claims for damages for breach of
    contract.

[12]

She
    interpreted art. 5.02 of the employment contract, set out above, as providing
    that Roscoes obligation to reimburse Canaccord only arose at the point of a
    judgment of a court, a decision of an administrative body, an arbitration award
    or a settlement. As the indemnity claim did not crystallize until Canaccord
    settled, the obligation to reimburse did not arise until that time.

[13]

Consequently,
    she concluded that Canaccords claim was governed by the basic limitation
    period and Canaccord had two years to launch its action from discovery of the claim,
    which she held to be the settlement date, the earliest date from which the
    limitation period could run. As Canaccord had commenced its action within two
    years of the settlement, the action had been brought within the applicable
    period. The motion for summary judgment was accordingly dismissed.

ISSUES

[14]

Roscoe
    raises two issues:

1.

Did the motion
    judge err in finding that the action was not barred by s. 18 of the Act?

2.

If the motion
    judge did not err in finding that the action was governed by the two-year basic
    limitation period, did she err by deciding the discoverability issue?

ANALYSIS

Issue 1. Did the motion judge err in finding that the
    action was not barred by s. 18 of the Act?

[15]

In
    my respectful view, the motion judge erred in her characterization of the claim
    advanced by Canaccord against Roscoe and in her interpretation of s. 18. I
    reach that conclusion for the following reasons.

(a)

Legislative history

[16]

A
    brief review of the evolution of the legislation governing the limitation
    period applicable to claims for contribution and indemnity will facilitate my
    analysis of s. 18. The legislature first dealt specifically with claims for
    contribution and indemnity as between torfeasors in 1948.
An Act to amend The
    Negligence Act,
S.O. 1948, c. 61, s. 3 amended
The Negligence Act
,
    R.S.O 1937, c. 115, and extended the limitation period for claims for
    contribution and indemnity by one tortfeasor against another by providing that
    such a claim could be brought within one year of the date of judgment or
    settlement disposing of the underlying tort claim despite the operation of any
    limitation period against the other tortfeasor: see
HSBC Securities (Canada)
    Inc. v. Davies, Ward & Beck
(2005), 74 O.R. (3d) 295 (C.A.), at para.
    56. This provision was included in successive versions of the
Negligence
    Act
and remained in force for over 50 years until the Act was passed in
    2002 and repealed the provision:
Justice Statute Law Amendment Act, 2002
,
    S.O. 2002, c. 24, Sched. B, s. 25.

[17]

Section
    18 of the Act reflects two significant changes relating to the limitation
    period applicable to claims for contribution and indemnity. First, s. 18 was
    part of a fundamental and comprehensive reform of the law of limitations in
    Ontario aimed at creating a clear and cohesive scheme for addressing limitation
    issues, one that balances the plaintiffs right to sue with the defendants
    need for certainty and finality. Second, the wording of s. 18 is significantly
    different from the provision it replaced.

[18]

Although
    the Act was passed in 2002 and only came into force in 2004, it was the
    culmination of numerous reports and bills beginning in the 1960s with a view to
    reforming the law of limitations.

[19]

In
    1969, the Ontario Law Reform Commission (the OLRC) highlighted the need to
    reform Ontarios limitation legislation: see Ontario Law Reform Commission,
Report
    of the Ontario Law Reform Commission on Limitation of Actions
(Toronto:
    Department of the Attorney General, 1969). The OLRC identified the
    proliferation of special statutory limitation periods in over 60 different
    statutes and drew attention to the problem of far too many special limitations
    periods: at p. 12. It lamented how Ontarios limitation laws ha[d] become out
    of touch with current needs and emphasized the difficulties with regard to
    the time at which limitation periods begin to run: at p. 12. The OLRC
    described the purpose of limitation periods as follows, at p. 9:

Lawsuits should be brought within a reasonable time. This is
    the policy behind limitation statutes. These laws are designed to prevent
    persons from beginning actions once that reasonable time has passed. Underlying
    the policy is a recognition that it is not fair that an individual should be
    subject indefinitely to the threat of being sued over a particular matter. Nor
    is it in the interests of the community that disputes should be capable of
    dragging on interminably. Furthermore, evidentiary problems are likely to arise
    as time passes. Witnesses become forgetful or die: documents may be lost or
    destroyed. Certainly, it is desirable that, at some point, there should be an
    end to the possibility of litigation in any dispute. A statute of limitation is
    sometimes referred to as an Act of peace.

[20]

The
    second change is in the specific wording of s. 18, which contains two features
    that are consistent with and, in my view, driven by that general overall
    purpose. Significantly,, s. 18 departs from the model established in 1948 in
    the
Negligence Act
. The provision in the
Negligence Act
applied only to claims for contribution and indemnity as between tortfeasors.
    It allowed such claims to be brought within one year of settlement or judgment
    in the underlying action, despite the expiry of any limitation period governing
    the claim of the injured party against the other tortfeasor. In contrast, s. 18
    applies not only to claims as between tortfeasors but also to claims for
    contribution and indemnity by one wrongdoer against another, whether the
    right to contribution and indemnity arises in respect of a tort or otherwise.
    Moreover, s. 18 significantly shortens the limitation period governing
    contribution and indemnity claims to two years from the date the first alleged
    wrongdoer was served with the underlying claim, thereby encouraging resolution
    of all claims arising from the wrong at the same time.

[21]

The
    changes adopted in s. 18 seem to first have appeared in a report produced in
    1991 for the Ministry of the Attorney General: see Consultation Group on the
    Limitations Act,
Recommendations for a New Limitations Act: Report of the
    Limitations Act Consultation Group
(Toronto: Ministry of the Attorney
    General, 1991). The consultation group that authored the report recommended that
    the date of the act or omission for triggering the standard two-year limitation
    period for contribution and indemnity against another tortfeasor be the date
    when the tortfeasor
was served
with the claim by the plaintiff: at p.
    42. In describing the problem with focusing on the date of judgment or
    settlement, the consultation group wrote, at p. 42:

Under the present law [t]he limitation period on the claim
    against the second wrongdoer begins when the first wrongdoer is adjudged to be
    liable to the plaintiff.

The difficulty with the present law is that the first wrongdoer
    can wait to commence legal proceedings against the second wrongdoer until long
    after the limitation period between the second wrongdoer and the plaintiff has
    expired, even though the first wrongdoers claim is based on the second
    wrongdoers liability to the plaintiff. If the second wrongdoer had been sued
    by the plaintiff in a timely manner, the second wrongdoer may have been able to
    defeat the plaintiffs claim. But, years later, the second wrongdoer may have
    lost his or her evidence or the plaintiff may no longer exist.

[22]

The
    consultation group acknowledged that this approach had not been recommended in
    the OLRCs comprehensive report in 1969, but stated that in the context of a
    comprehensive review of limitations policy, especially with emphasis upon the
    discovery principle, it [did] not seem unfair to encourage the first wrongdoer
    to commence proceedings for contribution as soon as possible: at p. 43. The
    consultation group concluded that by moving the limitation starting point to
    the date of the plaintiffs claim, the limitation policy shorten[ed] the
    second wrongdoers exposure to potential liability and increase[d] the second
    wrongdoers ability to defend the claim: at p. 43.

[23]

The
    recommendation of the consultation group was adopted in draft legislation that
    did not proceed beyond first reading in 1992 (Bill 99,
An Act to revise the
    Limitations Act
, 2nd Sess., 35th Leg., Ontario, 1992), 2000 (Bill 163,
An
    Act to revise the Limitations Act
, 1st Sess., 37th Leg., Ontario, 2000)
    and 2001 (Bill 10,
An Act to revise the Limitations Act
, 2nd Sess.,
    37th Leg., Ontario, 2000). Finally, the Act, which incorporated the consultation
    groups recommendation, was passed in 2002:
Justice Statute Law Amendment
    Act, 2002
, S.O. 2002, c. 24, Sched. B.

[24]

In
    my view, the departure from the 1948 model to embrace wrongdoers, not just
    tortfeasors, and to cover claims that arise in respect of a tort or otherwise
    represented a conscious decision to expand the scope of the provision beyond
    the tort context to include claims like the one at issue in this case. This is
    consistent with the often-repeated goal of creating a clear, cohesive scheme for
    addressing limitation issues. As mentioned, the purpose of the Act is to
    balance the plaintiffs right to sue with the defendants need for certainty
    and finality. Carving out exceptions to the general rule in s. 18 for certain
    types of claims in contribution and indemnity would undercut that purpose. It
    would expose defendants from whom contribution and indemnity is sought to
    unpredictable limitation periods, undermining the defendants ability to defend
    the claim. Consequently, it is my view that the legislative history supports
    the conclusion that s. 18 of the Act governs the claim at issue.

(b)

The principles of
    statutory interpretation

[25]

The
    often-quoted basic principle of statutory interpretation is that expressed in
Rizzo
    & Rizzo Shoes Ltd. (Re),
[1998] 1 S.C.R. 27, at para. 21:

Today there is only one principle or approach, namely, the
    words of an Act are to be read in their entire context and in their grammatical
    and ordinary sense harmoniously with the scheme of the Act, the object of the
    Act, and the intention of Parliament.

[26]

The
    claim Canaccord asserts against Roscoe in its statement of claim is that he
    indemnify Canaccord for the amount it paid to settle the Cavanagh claim. The
    source of the Canaccord claim is the claim the Cavanaghs asserted against both
    Canaccord and Roscoe as wrongdoers jointly liable to pay damages caused by the
    alleged breach of duty they owed the Cavanaghs as their investment dealer and advisor.
    It follows that Canaccords claim against Roscoe falls squarely within the grammatical
    and ordinary meaning of the language of s. 18 as a claim by one alleged
    wrongdoer against another for contribution and indemnity.

[27]

When
    s. 18 is read harmoniously with the scheme and object of the Act and the
    intention of the legislature, the conclusion that Canaccords claim against
    Roscoe is governed by s. 18 gains added strength. As I have noted, the Act
    reflects a marked departure from the past when different limitation periods
    were found in different statutes and based upon the characterization of the
    specific cause of action pleaded. The Act achieved a significant reform by
    eliminating that plethora of limitation periods and replacing them with a
    basic limitation period based upon the discovery of the claim.

[28]

Section
    18 creates a specific rule for determining when a claim for contribution and
    indemnity is discovered. Section 18 provides that a claim for contribution and
    indemnity is discovered on the day the first alleged wrongdoer is served with
    the claim in respect of which contribution and indemnity is sought. In other
    words, once the party seeking indemnity is served with the injured partys
    statement of claim, the claim is discovered and the two-year limitation period
    starts to run. Section 18(2) makes clear that this special rule for claims for
    contribution and indemnity applies whether the right to contribution and
    indemnity arises in respect of a
tort or otherwise

    (emphasis added). The legal theory grounding the contribution and indemnity
    claim is not relevant for deciding whether s. 18 is triggered; the provision
    applies when there is a claim for contribution and indemnity, no matter what
    legal theory underlies the claim.

[29]

I
    therefore cannot agree that the fact that Cavanaghs claim is based upon the employment
    agreement rather than upon the
Negligence Act
excludes the claim from
    the reach of s. 18. In my respectful view, to so hold would be to ignore a
    fundamental feature of the Act. It is, on its face, a claim for indemnity
    brought by one alleged wrongdoer against another and the fact that it is
    grounded in contract has no bearing on the question of whether or not it falls
    within the reach of s. 18. I agree with Roscoe that the motion judges
    interpretation creating one start date for limitation period for claims for
    contribution and indemnity based upon the
Negligence Act
, R.S.O. 1990,
    c. N.1 and a different start date for limitation period for claims for
    contribution and indemnity based upon contract is inconsistent with the overall
    aim of the Act to achieve clarity and uniformity.

[30]

While
    the specific point before us on this appeal is a matter of first impression,
    interpreting s. 18 to embrace all claims for contribution and indemnity,
    whether arising in tort or contract, accords with the interpretation this court
    gave s. 18 in
Waterloo Region District School Board v. Truax
    Engineering Ltd.,
2010 ONCA 838,
    103 O.R. (3d) 81, per Feldman J.A., writing for a five-judge panel. The issue
    in that case was whether by replacing the 1948 model, s. 18 had reverted to the
    situation in which a claim for contribution and indemnity is barred by the
    expiry of the limitation period governing the claim of the injured party
    against the party from whom contribution is sought. The court rejected that
    proposition, holding, at para. 24, that:

a claim for contribution and indemnity, whether in tort or
    otherwise, now has a two-year limitation period that is presumed to run from
    the date when the person who seeks contribution and indemnity is served with
    the plaintiffs claim that gives rise to its claim over.
This
    is the only limitation period in the Act that applies to claims for
    contribution and indemnity
. [Emphasis added].

Feldman J.A. went on to state, at para 26:

If the court were to conclude that, despite the clear wording
    of s. 18, there is a further limitation period that applies to claims for
    contribution and indemnity against a concurrent tortfeasor in negligence, and
    that such claims must also be brought before the expiry of the limitation
    period applicable to the plaintiffs claim against that tortfeasor
,
the effect of a universal
    limitation period for contribution and indemnity claims in s. 18 would be
    abrogated and the clarity and efficacy of the section undermined
.
    [Emphasis added]

[31]

She
    then cited
Yugraneft Corp. v. Rexx Management Corp
., 2010 SCC 19, [2010]
    1 S.C.R. 649, at para. 36 where the Supreme Court explained the
    streamlining purpose of Albertas new limitations regime:

The Act was intended to create a comprehensive and simplified
    limitations regime to replace the previous
Limitation of Actions Act
,
    R.S.A. 1980, c. L-15, As the Alberta Court of Appeal noted in
Daniels
    v. Mitchell
, 2005 ABCA 271, 51 Alta. L.R. (4th) 212, at para. 30:

[A] main purpose of the [
Limitations Act
] was the
    simplification of limitations law, by the imposition of one period (two years)
    for nearly all causes of action. [D]ebates in the Legislative Assembly
    repeatedly emphasized that the new legislation would simplify and clarify the
    system while eliminating inconsistencies and special treatment for certain
    defendants.

Thus, the purpose of the Act was to streamline the law of
    limitations by limiting the number of exceptions and providing a uniform
    limitation period for most actions.

[32]

Similarly,
    in
IPEX Inc. v. Lubrizol Advanced Materials Canada Inc.,
2012 ONSC
    2717, 4 B.L.R. (5th) 148, at para. 19, Belobaba J. held that an indemnity claim
    based in contract and tort is primarily a claim for indemnity and therefore
    governed by s. 18.

[33]

There
    is a suggestion in the reasons of the motion judge that s. 18 does not apply
    because it is a claim only for indemnity and not contribution and
    indemnity. I agree with Roscoe that that is a distinction without a
    difference. The difference between contribution and indemnity is simply the
    extent of the recovery: see
Hardisty v. 851791 N.W.T. Ltd
., 2004 NWTSC
    70, 26 C.C.L.T. (3d) 305, at para. 3.

[34]

Finally,
    I agree with Roscoe that the motion judge erred in her interpretation of the
    employment agreement to the extent that she held that Canaccords claim only
    arose under the contract at the point of a judgment of a court, a decision of
    an administrative body, an arbitration award or a settlement. The employment
    contract provides that the obligation to indemnify is triggered,
inter alia
,
    if any claim is made against the Company. This coincides with the language of
    s. 18 and accordingly, it is not necessary for me to consider the situation
    that would arise if the language of the contract and the language of s. 18
    differed.

[35]

I
    add here that one of the motion judges concerns was to avoid an interpretation
    that would, as a practical matter, require Canaccord to claim indemnity in the
    Cavanagh action and prevent Canaccord and Roscoe from presenting a common
    front. There are two answers to that concern.

[36]

First,
    the concern is inconsistent with one of the intended features of s. 18. As
    noted by Feldman J.A. in
Waterloo Region District School Board
, at
    para. 29, by linking the limitation period governing contribution and indemnity
    claims to the claim of the injured party, it is contemplated that all claims
    arising out of the incident that caused the injury will be tried and disposed
    of together. It is clearly in the interest of justice to have all related
    claims dealt with at the same time and that is encouraged by interpreting s. 18
    to embrace all claims for indemnity as between the wrongdoers who are or may be
    responsible for the loss.

[37]

Second,
    the Act provides at least a partial answer for those wrongdoers who wish to
    present a common front and postpone the litigation of their claims
inter se
.
    Section 22 permits parties to agree to toll the limitation period. There is
    nothing in the correspondence between counsel for Roscoe and Canaccord that
    could amount to a tolling agreement pursuant to s. 22.

[38]

In
    my view, when the words of s. 18 are read in their full context, bearing in
    mind their grammatical and ordinary sense, the scheme and object of the Act and
    the legislatures purpose, it is clear that the provision applies and precludes
    Canaccord from asserting this claim for indemnification against Roscoe.

(c)

Conclusion

[39]

Having
    reviewed the legislative history of the Act and applied the principles of
    statutory interpretation, I would hold that the motion judge erred in finding
    that Canaccords action was not barred by s. 18 of the Act.

Issue 2. If the motion judge
    did not err in finding that the action was governed by the two-year basic
    limitation period, did she err by deciding the discoverability issue?

[40]

Given
    my answer to the first issue, it is not necessary to consider this issue.

DISPOSITION

[41]

For
    these reasons, I would allow the appeal, set aside the order of the motion
    judge and in its place substitute an order dismissing the action on the ground
    that the claim is barred by s. 18 of the Act. Roscoe is entitled to his costs
    of the appeal fixed at $12,500 inclusive of disbursements and applicable taxes.

Robert J. Sharpe
    J.A.

I agree Gloria
    Epstein J.A.

I agree S.E. Pepall
    J.A.

Released: June 7, 2013


COURT OF APPEAL FOR ONTARIO

CITATION: Cefarelli v. Hamilton Health Sciences, 2013 ONCA
    413

DATE: 20130618

DOCKET: C57001

Goudge, MacPherson and Juriansz JJ.A.

IN THE MATTER
    OF an application under section 68 of the
Substitute Decisions Act, 1992
,
    S.O. 1992, c.30

BETWEEN

Silvana Cefarelli

Applicant (Appellant)

and

Hamilton Health Sciences, Corey Sawchuk and
    Antonio Costantini

Respondents (Respondents)

Alexander Procope and Mark Handelman, for the appellant

Cindy Clarke and Lee Lenkinski, for the respondents

Heard: June 17, 2013

On appeal from the judgment of Justice Crane of the Superior
    Court of Justice, dated May 3, 2013.

ENDORSEMENT

[1]

This appeal arises in the context of end-of-life decisions affecting
    Antonio Costantini.  The court is fully conscious of how difficult such
    decisions can be, and of the deep feelings that accompany them.  For that
    reason, the court reserved its decision in order to carefully review and consider
    all aspects of this matter.  In the end, the courts view is that the appeal
    must be dismissed for the following reasons.

[2]

The appellant raises three arguments.  First, she argues that the
    application judge erred in disposing of more than her request for interim
    relief by going on to dismiss the entire application.  We disagree.  The
    application judge made it clear that he had before him only an application for
    what he called an interim order and was deciding nothing more than that.  When
    he rejected that relief, it was entirely proper for him to dismiss the
    application before him.

[3]

Second, although she did not press it in oral argument, the appellant
    argues that the reasons below are inadequate.  However, in our view the reasons
    are quite sufficient to explain the path the application judge followed to
    reach his conclusion and to permit appellate review of it.  This argument must
    be rejected.

[4]

The third is the appellants principal argument.  She says that the
    application judge erred in refusing the interim relief sought.  Again we
    disagree.  In our view the application judge was correct in finding that the
    November 2012 treatment plan (which was consented to) gives the responsible
    physician discretion regarding which components of cardiopulmonary resuscitation
    are to be used and which are not.  One such component is cardiac compression.  In
    these circumstances, the contested order was simply one available to the doctor
    within that plan.  It cannot be said to be a withdrawal of treatment from that treatment
    plan.  No question therefore arises of the need for consent.        Rather, it
    is, as the application judge said, effectively a request to impose CPR
    treatment which, for this patient, carries no possibility of medical benefit,
    but would only inflict harm on him.

[5]

There is thus no underlying legal issue of consent being necessary that
    requires the suspension of the no-CPR order pending its resolution.  There is
    simply no legal underpinning for the order sought.

[6]

The appeal must be dismissed.  No costs are asked or ordered.

S.T. Goudge J.A.

J.C. MacPherson J.A.

R.G. Juriansz J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Centre City Auto Sales Inc. v. Kalsatos, 2013 ONCA
    373

DATE: 20130605

DOCKET: C54068

Winkler C.J.O., Rouleau and Hoy JJ.A.

BETWEEN

Centre City Auto Sales Inc. and Gus Kalsatos

Plaintiffs (Appellants)

and

Alex
    Kalsatos, Center City Quality Cars Inc., Axela Finance Inc.

and Evelyn Watling

Defendants (Respondents)

Adam J. Ezer, for the appellants

Gregory W. Roberts, for the respondents Axela Finance
    Inc. and Evelyn Watling

Alex Kalsatos, acting in person

No one appearing for the
    respondent Center City Quality Cars Inc., now dissolved

Heard and released orally: May 27, 2013

On appeal from the judgment of Justice Sidney N. Lederman
    of the Superior Court of Justice dated June 27, 2011, with reasons reported at
    2011 ONSC 3768.

ENDORSEMENT

[1]

In this appeal, the appellants do not allege that the trial judge made
    any reviewable errors. The appellants have tendered voluminous amounts of proposed
    fresh evidence and they have conceded that if we do not admit it, there is no
    basis to allow the appeal.

[2]

The fresh evidence consists of documents, records and information that
    would in the usual course have been obtained through discovery of the
    respondents before trial. Because the respondents did not attend for their
    discoveries despite being served with notices of examination, discovery of the
    respondents was never carried out by the appellants. The fresh evidence could therefore
    have been obtained by the appellants exercise of reasonable due diligence and
    adduced at trial: all that was required was an order compelling the
    respondents attendance.

[3]

The test for admitting fresh evidence on appeal was set out in
Sengmueller
    v. Sengmueller
(1994), 17 O.R. (3d) 208 (C.A.), at pp. 210-11, as follows:

Section 134(4)(
b
) of the
Courts of Justice Act,
R.S.O. 1990, c. C.43, gives a court to which an appeal is taken discretion in
    a proper case to receive further evidence by affidavit, transcript of oral
    examination, oral examination before the court or in such other manner as the
    court directs. What concerns the court is not whether it can admit new
    evidence, but whether the appeal before it is a proper case in which to do
    so.

The normal basis on which an appeal court in this jurisdiction
    will exercise its discretion in favour of admitting fresh evidence is clear and
    well-established. It will do so when (1) the tendered evidence is credible, (2)
    it could not have been obtained, by the exercise of reasonable diligence, prior
    to trial, and (3) the evidence, if admitted, will likely be conclusive of an
    issue in the appeal. [Citation omitted.]

[4]

The appellants argue that even though the proposed fresh evidence does
    not meet the due diligence requirement, this court should nonetheless admit it
    in the interests of justice. In effect, the appellants argue that because of the
    concessions the trial lawyer made at first instance and his failure to carry
    out proper discoveries, they have been left with a hollow judgment for an
    amount well below what they ought to have been awarded.

[5]

We understand that the appellants have instituted an action against
    their former solicitors for the alleged negligence.

[6]

In our view, the fresh evidence ought not to be admitted. The parties underwent
    a five-day trial and obtained a judgment on the merits. In the circumstances of
    this case, we see no basis for exercising our discretion in favour of admitting
    the fresh evidence.

[7]

As a result, the appeal is dismissed. Costs to the respondents Axela Finance
    Inc. and Evelyn Watling are fixed in the amount of $10,000, all inclusive.

W. Winkler C.J.O.

Paul
    Rouleau J.A.

Alexandra
    Hoy J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Consky v. Farooq, 2013 ONCA 393

DATE: 20130611

DOCKET: C54378

Laskin, Rosenberg and Tulloch JJ.A.

BETWEEN

Harvey S. Consky

Solicitor (Respondent)

and

Abdul Kasim Farooq

Client (Appellant)

Michael Czuma, for the appellant

Frank Feldman and Darrell Paul, for the respondent

Heard: June 10, 2013

On appeal from the order of Justice David Corbett of the Superior
    Court of Justice, dated August 30, 2011.

APPEAL BOOK ENDORSEMENT

[1]

The appellant submits that the retainer agreement is a contingency fee
    agreement that offended the
Solicitors Act
and, therefore, the
    confirmation of the assessment must be set aside.  We do not accept this
    submission for three reasons:

(1)

We agree with Justice Corbett that the retainer agreement was not a
    contingency fee agreement.

(2)

Even if it was a contingency fee agreement, the
Solicitors Act
does not apply retrospectively to it.

(3)

The appellant disavowed the agreement and asked for an assessment of the
    fairness and the reasonableness of the account.  That is what he got.

[2]

The appeal is dismissed, with costs fixed at $7,000, inclusive of
    disbursements and applicable taxes.


COURT OF APPEAL FOR ONTARIO

CITATION: Cubias (Re), 2013 ONCA 409

DATE: 20130618

DOCKET: C56116

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

IN THE MATTER OF: Christian Cubias

AN APPEAL UNDER PART XX.1 OF THE
CODE

Bruce F. Simpson, for the appellant

Karen Shai, for the Attorney General

Janice E. Blackburn, for Waypoint Centre for Mental
    Health Care

Michelle O'Bonsawin, for Brockville Mental Health Centre

Heard and released orally: June 7, 2013

On appeal against the disposition of the Ontario Review
    Board dated, August 28, 2012.

ENDORSEMENT

[1]

The appellant appeals the August 28, 2012 disposition of the Ontario
    Review Board ordering that he be detained at the Oakridge Division of Waypoint
    Centre for Mental Health.  It is conceded that the appellant remains a
    significant threat to the safety of the public.  The appellant argues that the
    Board erred in not concluding that his risk could be managed on a conditional discharge.

[2]

The Board provided reasons for concluding that the appellants risk
    could not be managed on a conditional discharge, all of which were supported by
    the evidence.  The appellant has no support in the community, he has a history
    of elopements and he has failed to develop any of the skills required to follow
    through on substance abstinence.  As the Board noted, a resumption of alcohol
    consumption would increase his risk of acting violently.  The Boards
    conclusion was reasonable and supported by the evidence.  We see no basis to
    interfere.

[3]

On appeal the appellant also raises a
Charter
argument not
    advanced before the Board.  In particular, he argues that his detention amounts
    to a probable period of indefinite incarceration and therefore to cruel and
    unusual punishment.  We are not satisfied that the appellant faces a probable
    period of indefinite incarceration.

[4]

The thrust of the evidence before the Board was that a transfer to
    Waypoint was not a dead-end. Waypoint offers the substance abuse programming
    that the appellant requires.  If he engages in that programming and shows
    improvement, he could earn privileges and eventually be transferred to a
    facility that engages in community reintegration. In these circumstances, we do
    not need to further address his
Charter
argument.

[5]

This appeal is accordingly dismissed.

Alexandra Hoy A.C.J.O.

R.A. Blair J.A.

P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Di Gennaro v. BMO Nesbitt Burns
    Inc., 2013 ONCA 366

DATE: 20130604

DOCKET: C56515

Winkler C.J.O., Rouleau and Hoy JJ.A.

BETWEEN

Battista Di Gennaro, Franca Di Gennaro and Paula
    Di Gennaro

Plaintiffs (Appellants)

and

BMO Nesbitt Burns Inc., Angelo Mattina and The
    Bank of Montreal

Defendants (Respondents)

James Brown, for the appellants

David Quayat and Mark Veneziano, for the respondents

Heard and released orally: May 27, 2013

On appeal from the order of Justice Thomas McEwen of the Superior
    Court of Justice, dated January 7, 2013.

ENDORSEMENT

[1]

The appellants appeal the January 7, 2013 order of the motion judge
    enforcing a settlement entered into between the appellants and the respondents
    by way of minutes of settlement dated February 24, 2011.

[2]

Essentially, the appellants argue that the motion judge erred in finding
    that the parties had entered into a binding settlement. They submit that the
    provision in the minutes of settlement that the appellants shall execute a
    release satisfactory to all parties rendered the minutes of settlement an offer
    to settle conditional upon the execution of such a release.

[3]

They also argue that while the word shall imposes a mandatory
    obligation to perform, the word satisfactory gives the parties an absolute
    discretion.  They submit the minutes of settlement are accordingly ambiguous
    and contradictory and cannot be enforced.

[4]

In our view, the appellants submissions are without merit.   The motion
    judge found that the parties had agreed to the form of the release.  The
    appellants do not challenge that finding.  Indeed, in his affidavit in response
    to the respondents motion to enforce the settlement, the appellant, Battista
    Di Gennaro, submitted that the appellants had agreed to the form of release.

[5]

In the result this appeal is dismissed, with costs, in the agreed-upon
    amount of $2,500, inclusive of disbursements and applicable taxes.

Warren K. Winkler C.J.O.

Paul Rouleau
    J.A.

Alexandra Hoy
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Faris v. Eftimovski, 2013
    ONCA 360

DATE: 20130604

DOCKET: C55205

Blair, Rouleau and Tulloch JJ.A.

BETWEEN

Robert Faris

Plaintiff (Appellant)

and

Chris
    Eftimovski, CLE 72330 Limited, The Estate of Wally Magee, Horst
    Rosner, Carriage South Simcoe Real Estate Services Ltd., Exit
    Realty (or Exit Realty Advance), Re/Max Rouge River Realty
    Ltd., Anthony John Laskowsky (first named in these proceedings as
    Anthony Laskowsky, Jr.) in his own capacity and as Litigation Administrator
    representing the interest of the Estate of Anthony Edward
    Laskowsky (first named in these proceedings as Anthony Laskowsky,
    now deceased)

Defendants (Respondents)

Alfred J. Esterbauer and Demetrios Yiokaris, for the
    appellant

Kelly A. Charlebois, for the respondent, Re/Max Rouge
    River Realty Ltd. and agent for Chris Eftimovski and CLE 72330 Limited

Todd Robinson, for the respondent, Wally Magee

Heard: November 21, 2012

On appeal from the order of Justice Susan E. Healey of
    the Superior Court of Justice, dated April 11, 2012 with reasons reported at
    2012 ONSC 1126.

Tulloch J.A.:

A.

INTRODUCTION

[1]

This appeal concerns a frequently encountered issue in civil
    litigation:  under what circumstances should an action be dismissed by the
    court following a status hearing?

[2]

The appellant appeals from the order of Justice Healey dismissing his
    action for delay after a status hearing held at the Superior Court of Justice
    in Barrie on February 2, 2012 (the Barrie Action). In addition, he seeks
    leave to appeal the costs fixed by the status hearing judge on April 11, 2012.

B.

Background

(1)

Facts giving rise to
    the appellants claim

[3]

The appellant commenced this action in 2007 alleging damages arising
    from two real estate transactions that occurred in 2003 and 2005, both relating
    to the same property. The property is a 100 acre farm property which was owned
    by the appellant. At the time, the respondent Walter Magee (Magee) was a real
    estate agent, employed by Advanced Realty Inc., c.o.b. as Exit Realty
    Advanced.  The respondent, Horst Rosner (Rosner) was also a real estate
    agent, and was employed by the real estate brokerage firm, Carriage South
    Simcoe.

[4]

In 2001, the appellant listed the property for sale jointly and
    exclusively with Exit Realty and Carriage South Simcoe, and both Magee and
    Rosner were co-listing agents.

[5]

The key events in the lawsuit include a sale of the property in 2003,
    which did not close (the 2003 deal), a February 24
th
, 2003 offer,
    prepared by Magee, relating to the 2003 Deal (the 2003 offer), and the
    eventual sale of the property in 2005 to the respondent CLE 72330 Ontario Ltd.
    (CLE), whose principal is Chris Eftimovski (Eftimovski).

[6]

In his statement of claim, the appellant alleges breach of contract and
    breach of fiduciary duties on the part of Magee and Rosner in their representation
    of the appellant as real estate agents in the listing, marketing and selling of
    the property. Re/Max is alleged to be vicariously liable for Magee in relation
    to the 2005 transaction only, as Magee was not associated with Re/Max at the
    time of the 2003 transaction. The Laskowsky respondents are solicitors alleged
    to have been retained by the appellant in relation to the 2005 transaction. The
    claims against them involve allegations of professional negligence and an
    accounting of the proceeds of the sale.

[7]

The genesis of the various actions was a charge that the appellant
    placed on his property on October 23, 2001, in favour of Three Seasons Homes
    Limited (Three Seasons). This charge became the source of conflict between the
    appellant and the respondents and eventually gave rise to this action and
    another action in London (the London Action).

[8]

The London Action was commenced in February 2007 as a claim by
    Eftimovski and his company, CLE, against the appellant for breach of contract
    and declaration that any and all amounts awarded to either of Eftimovski and
/or CLE may be set off against a mortgage between CLE as mortgagor
    and the appellant as mortgagee registered against the property. The appellant
    was noted in default in the London Action in June 2007. In August 2010, the
    appellant successfully brought a motion to have the default judgment in the
    London Action set aside. Subsequently, the appellant filed a statement of
    defence and counterclaimed against Eftimovski and CLE. There was no evidence placed
    before this court as to the current status of the London Action.

(2)

The Evolution of the
    Barrie Action

[9]

Subsequent to the commencement of the London Action, the appellant
    commenced the Barrie Action in December 2007 against nine named defendants. The
    chronology of events was aptly set out by the status hearing judge in her
    reasons and, for convenience, I reproduce it below:

The action was commenced on December 12, 2007 by way of notice
    of action, and the claim issued on or about January 11, 2008.

Within the six month time period permitted for service of that
    pleading, the plaintiff had served only four of the nine defendants.

On the last day on which service could be effected without an
    order extending the time for service, the plaintiffs lawyer wrote to the firm
    of Miller Thomson, who represented Magee in a 2005 action with respect to the
    2003 transaction, to ask that they accept service on Magees behalf.  Miller
    Thomson declined as they were not in a position to accept service on his
    behalf.

In separate correspondence delivered in June and July, 2008,
    McLarens Canada, the independent adjuster appointed by Re/Max and Carriage
    Souths insurer, confirmed that they had been given an open indulgence by the
    plaintiffs solicitor in order for them to carry out their investigation of the
    matter.

On December 9, 2008 the plaintiff obtained an order extending
    the time for service of the claim.  With only five days left to serve Magee
    under the extension order, the plaintiff obtained an order for substituted
    service on Magee, which order was obtained on February 10, 2009.

On February 19, 2009 the plaintiffs lawyer follows up with
    McLarens and requested that a statement of defence be delivered by the end of
    the month.  On that same date, McLarens delivered correspondence indicating
    that their investigation had been completed and requesting that the time frame
    for filing the statement of defence for Carriage South be extended to the end
    of March 2009.

On April 12, 2009 the defendant Anthony Laskowsky died.

On May 6, 2009 Miller Thomson served its notice of intent to
    defend, and requested that the action be dismissed against Re/Max without
    costs. Having had no response from the plaintiffs lawyer, follow up
    correspondence was sent on August 20 and November 24, 2009, making the same
    request to have Re/Max let out of the action.  The plaintiffs lawyer finally
    responded on April 12, 2010, at which time he acknowledged receipt of the
    several letters sent throughout the previous year and indicated that he would
    get instructions on or before the end of the month.  He did not provide an answer
    to Re/Maxs request until after the status hearing notice had been issued [in
    2011].

On July 4, 2010 the defendant Wally Magee died.

On July 23, 2010 the plaintiff obtained an order to continue
    against Laskowskys estate.

In November 2010 the plaintiffs counsel suggested mediation.
    In his correspondence the plaintiffs lawyer acknowledges that there are
    evidentiary difficulties because of the intervening deaths of Magee and
    Laskowsky.  At the time that this request was made the pleadings had not been finalized,
    no affidavits of documents had been exchanged nor had any examinations taken
    place.

At some point a Demand for Particulars had been made by
    Carriage South, although the date on which that document was served was not in
    evidence.

In January 2011 counsel for the defendant Laskowsky requested
    that a Status Notice be issued, and such Notice was issued on April 5, 2011.

A status hearing was set for June 29, 2011.  Between the time
    that the status notice was issued and the first attendance at the status hearing,
    the plaintiff took no steps to move this action forward.

On the day before the
    hearing
, the plaintiff filed an affidavit and the hearing was
    adjourned to permit the defendants to file responding materials.  In that
    affidavit the plaintiff deposed that
the
    defendant Carriage South Simcoe Realty Limited has been pressing us for
    particulars of my claims against them and we have just completed a formal
    response to their demand for particulars
.

The status hearing was ultimately adjourned to February 2,
    2012.  At the time of the hearing, pleadings had not been finalized, no
    documentary productions had been exchanged and no examinations for discovery
    had taken place. [Emphasis added.]

[10]

As
    noted by the status hearing judge, two of the respondents, Anthony Laskowsky
    and Wally Magee, passed away before either of them could be examined for
    discovery in relation to this action.

(3)

Decision of the
    status hearing judge below

[11]

In
    her decision, the status hearing judge set out the two-part conjunctive test to
    determine whether the appellants action should be dismissed for delay. She
    quoted from
Savundranayagam v. Sun Life Assurance Co. of Canada
(2008), 67 C.C.L.I. (4th) 241 (Ont. Div. Ct.):

[T]he onus is on the plaintiff to show why the action should
    not be dismissed for delay at the status hearing.

the plaintiff must explain the delay so as to satisfy the court
    that the action should proceed; and

the plaintiff must satisfy the court that there would be no
    prejudice to the defendants.

[12]

The
    status hearing judge set out a detailed and thorough chronology of key events
    and found that, from the affidavit evidence before her, there were many
    unexplained delays in the proceeding. She rejected the appellants arguments
    that the respondents conduct in any way prejudiced the manner in which the
    appellant prosecuted the action. She found that the appellant did not seek statements
    of defence, affidavits of documents or dates for examinations of the respondents.

[13]

The
    status hearing judge noted that her findings on delay were sufficient by
    themselves to warrant dismissal of the appellants action. Nonetheless, she
    went on to consider whether the respondents were prejudiced by the delay in
    prosecuting the action. She found that the deaths of two parties who were also
    material fact witnesses would result in severe non-compensable prejudice to the
    respondents if the action were allowed to continue. The status hearing judge
    rejected the appellants argument that such prejudice would be attenuated
    because of evidence captured from the examination of Magee in another
    proceeding involving the 2003 action. In any event, no evidence had been
    captured or otherwise preserved from Laskowsky in relation to either action.

[14]

Accordingly,
    the status hearing judge dismissed the appellants action for delay.

(4)

The position of the
    appellant

[15]

Since
    the record at the status hearing was comprised mainly of documentary evidence,
    the appellant urges this court to review the status hearing judges decision on
    a less deferential standard of review.

[16]

The
    appellant argues that the respondents should be held to account for their fair
    share of the delay and prejudice that has plagued this action since its
    inception in 2007. In particular, the appellant points to the London Action and
    the default judgment that was taken out against the appellant. The appellants
    position is that the default judgment obtained in the London Action created a
    situation where this action could not proceed because of issues relating to
    issue estoppel or abuse of process.

[17]

The
    appellant further argues that the test applied to dismiss an action for delay
    at a status hearing under rule 48.14(13) should be the same as that applied
    under the rule governing a motion brought by a defendant to have a plaintiffs
    action dismissed for delay pursuant to rule 24.01(1).

[18]

In
    addition, the appellant argues that the status hearing judge erred by referring
    to and applying the finality principle, set out by this courts decision in
Marché
    DAlimentation Denis Thériault Ltée v. Giant Tiger Stores Ltd
.
,
    2007 ONCA 695, 87 O.R. (3d) 660.

(5)

The position of the
    respondents

[19]

The
    respondents state that the correctness standard of review applies to the case
    at bar. Therefore, absent a clear error in law or a palpable overriding error
    of fact, the status hearing judges decision is entitled to significant
    deference.

[20]

The
    respondents submit that the appeal should be dismissed as the appellant largely
    seeks to re-argue the case that was before the status hearing judge. In
    essence, the respondents argue that the status hearing judges decision should
    be upheld because the appellant did nothing to advance this action, initiated
    in 2007, until the status hearing three and a half years later.

[21]

The
    status hearing was set for June of 2011 but was adjourned the day before the
    hearing to grant the respondents time to respond to an affidavit filed
    last-minute by the appellant. At the status hearing in February of 2012, the
    respondents submit, the action was properly dismissed for delay.

C.

ANALYSIS

(1)

Standard of review

[22]

At
    a status hearing, the decision to dismiss an action for delay is discretionary.
    Accordingly, on appeal, the decision attracts deference but may be set aside if
    it discloses palpable and overriding errors of fact or is made on the basis of
    an erroneous legal principle:
1196158 Ontario Inc. v. 6274013 Canada Ltd
.,
    2012 ONCA 544, 112 O.R. (3d) 67, at para. 16.  I cannot accept the appellants
    submission that this court owes less deference to the decision of this
    particular status hearing judge.

(2)

Dismissal of actions
    for delay under the
Rules of Civil Procedure

[23]

The
Rules of Civil Procedure

provide for many different procedural
    mechanisms to dispose of an action without a trial. Of these, rules 24.01 and
    48.14(13) enable a court to dismiss an action for delay.

[24]

Rule
    1.04 governs the interpretation of the rules. Rule 1.04(1) states that the
    rules shall be liberally construed to secure the just, most expeditious and
    least expensive determination of every civil proceeding on its merits. On a
    plain reading of this rule, the competing concerns within the context of a
    disposition without trial are obvious. Namely, when exercising its discretion
    under rules 24.01 or 48.14(13) to dismiss an action for delay, a court must
    balance the plaintiffs interest in having a hearing on the merits and the
    defendants interest in having the matter resolved in an expedient and
    time-efficient manner.

[25]

This
    court has made it clear that the tests to be applied under rules 24.01 and
    48.14(13) are distinct from one another:
Bolohan v. Hull
, 2012 ONCA
    121, 99 C.C.E.L. (3d) 307, at para. 12.

[26]

The
    appellant, however, made submissions in his factum to the contrary. As such, I
    believe it is prudent to say a brief word about the applicable tests.

(3)

Rules 24.01 and
    48.14(13)

[27]

Rule
    24.01 provides:

(1)  A defendant who is
    not in default under these rules or an order of the court may move to have an
    action dismissed for delay where the plaintiff has failed,

(a) to serve the statement of claim on all the defendants
    within the prescribed time;

(b) to have noted in default any defendant who has failed to
    deliver a statement of defence, within thirty days after the default;

(c) to set the action down for trial within six months after
    the close of pleadings;

[Revoked.]

(e) to move for leave to restore to a trial list an action that
    has been struck off the trial list, within thirty days after the action was
    struck off.

[28]

Therefore,
    rule 24.01 enables
a defendant
who has complied with the rules to take
    a deliberate procedural step to dismiss an action where the plaintiff has been
    delinquent in an enumerated manner. In
Langenecker v. Sauvé
, 2011 ONCA
    803, 286 O.A.C. 268, Doherty J.A. described the two types of cases resolved by
    the exercise of a motion judges discretion under rule 24.01:

The first type of case  refers to those cases in which the
    delay is caused by the intentional conduct of the plaintiff or his counsel that
    demonstrates a disdain or disrespect for the courts process. In dismissing
    cases which fall within this category, the court effectively declares that a
    continuation of the action in the face of the plaintiff's conduct would
    constitute an abuse of the court's process. These cases, thankfully rare,
    feature at least one, and usually several violations of court orders.

The second type of case that will justify an order dismissing
    for delay has three characteristics. The delay must be inordinate, inexcusable
    and such that it gives rise to a substantial risk that a fair trial of the
    issues in the litigation will not be possible because of the delay.

[29]

Rule
    48, on the other hand, provides a number of mechanisms to enable
the court
to control the pace of litigation. This is an important function and supports
    the desirable objective of resolving legal disputes in a time-efficient manner.
    One part of this mechanism is the registrars ability to serve a status notice
    to prompt action by a delinquent plaintiff under either rule 48.14(1) or rule
    48.14(2).

[30]

After
    the relevant status notice is served, rule 48.14(8) enables a party to request
    that the registrar arrange a status hearing. The disposition of a status hearing
    is governed by rule 48.14(13).

[31]

Rule
    48.14(13) provides that:

(13)  At the status hearing, the plaintiff shall show
    cause why the action should not be dismissed for delay and,

(a) if the presiding judge or case management master is
    satisfied that the action should proceed, the judge or case management master
    may,

(i) set time periods for the completion of the remaining steps
    necessary to have the action placed on or restored to a trial list and order
    that it be placed on or restored to a trial list within a specified time,

(ii) adjourn the status hearing to a specified date on such
    terms as are just, or

(iii) if the action is an action to which Rule 77 may apply
    under rule 77.02, assign the action for case management under that Rule,
    subject to the direction of the regional senior judge,

(iv) make such other order as is just; or

(b) if the presiding judge or case management master is not
    satisfied that the action should proceed, the judge or case management master
    may dismiss the action for delay. [Emphasis added.]

[32]

The
    plain wording of rule 48.14(13) makes clear that the onus is on the plaintiff
    to demonstrate why the action should not be dismissed for delay. The test, as
    stated by the status hearing judge in the case at bar, requires the plaintiff
    to demonstrate that there was an acceptable explanation for the delay and
    establish that, if the action were allowed to proceed, the defendant would
    suffer no non-compensable prejudice:
Khan v. Sun Life Assurance
, 2011
    ONCA 650, at para. 1.

[33]

Since
    the purpose of Rule 48 is to enable the court to control the pace of litigation
    and ensure that disputes are resolved in a time-effective manner, imposing the
    onus on the plaintiff to show cause why the action should not be dismissed for
    delay is fair. This court has held that the responsibility to move the action
    along lies chiefly with the plaintiff. Accordingly, the plaintiff also bears
    the consequences of conducting its action in a dilatory manner: see
Wellwood
    v. Ontario Provincial Police
, 2010 ONCA 386, 102 O.R. (3d) 555, at para.
    48.

[34]

In
    my view, rules 24.01 and 48.14(13) each offer distinct means that may lead to
    the same end; the dismissal of the plaintiffs action for delay.

[35]

In
    the case of a motion to dismiss for delay brought by
the defendant
,
    the defendant must not be in default under the rules and the plaintiff must be
    delinquent by having failed to: serve the statement of claim on all defendants
    within the prescribed time; note in default any defendant who has failed to
    deliver a statement of defence within thirty days after the default; set the
    action down for trial within six months after the close of pleadings; or move
    for leave to restore an action to the trial list within thirty days after the
    action was struck off.

[36]

These
    are short timelines. As P.M. Perell & J.W. Morden describe in
The Law
    of Civil Procedure in Ontario
, 1st ed. (Markham: LexisNexis Canada, 2010),
    at p. 418, motions to dismiss for delay are rarely brought by defendants
    despite the fact that many actions do not advance within the time standards
    prescribed by rule 24.01. The authors explain that this is because judges and
    masters are reluctant to deny a plaintiff his or her day in court at a point
    that might be quite early in the proceedings.

[37]

Accordingly,
    a high threshold has been established to dismiss an action for delay under rule
    24.01. The test has developed from a line of jurisprudence originating with the
    English case of
Allen v. Sir Alfred McAlpine & Sons Ltd
.
,
    [1968] 2 Q.B. 229 (C.A.). On a rule 24.01 motion, an action should not be dismissed
    unless: (a) the delay is intentional and contumelious; or (b) the plaintiff or
    his or her lawyers are responsible for the inexcusable delay that gives rise to
    a substantial risk that a fair trial might not now be possible: see
Woodheath
    Developments Ltd. v. Goldman
(2001), 56 O.R. (3d) 658 (Master), affd.
    (2003) 66 O.R. (3d) 731 (Div. Ct.), leave to appeal refused (2004) 44 C.P.C.
    (5th) 101 (C.A.).

[38]

In
Armstrong v. McCall
(2006), 213 O.A.C. 229, at para. 11, this court
    explicitly adopted the test in
Woodheath
to be applied on a rule 24.01
    motion.

[39]

In
    the case of a status hearing, however, an opportunity for the court to consider
    dismissing an action for delay will not arise for a considerable period of time
    after the proceedings have been imitated. Rules 48.14(1) and 48.14(2), which
    trigger the requirement that the registrar issue a status notice, contemplate
    delinquency by plaintiffs which exceeds that under rule 24.01.

[40]

Rules
    48.14(1) and 48.14(2) provide that where a defended action has not been placed on
    a trial list
within two years after the first defence is filed
or
    restored to the trial list
within 180 days of being struck out
, the
    registrar shall serve a status notice on the parties indicating that the action
    will be dismissed for delay unless it is set down for trial within 90 days
    after service of the notice.

[41]

The
    onus placed on the plaintiff under rule 48.14(13), therefore, is mandated not
    only by the plain wording of the rule but also by the greater severity of the
    plaintiffs delinquency in pursuing its claim. In other words, at this
    juncture, the emphasis on the objectives expressed in rule 1.04(1) to secure
    the just, most expeditious and least expensive determination of every civil
    proceeding on its merits  must necessarily shift towards ensuring that
    disputes be resolved expeditiously and in a time-efficient manner.

[42]

Therefore,
    I conclude that the status hearing judge in the case at bar was correct to
    place the onus on the appellant and to apply a test similar in principle to one
    recently confirmed by this court in
1196158 Ontario Inc
. At para. 32
    of
1196158
, the court held that a plaintiff bears the burden of
    demonstrating that there is an acceptable explanation for the delay in the
    litigation
and
that, if the action was allowed to proceed, the defendant
    would suffer no non-compensable prejudice.

(4)

Assessment of delay
    and prejudice in the action

[43]

The
    status hearing judge rejected the appellants argument that he should be
    excused from the delay and the associated prejudice arising from a failure to
    diligently pursue the claim because of the behaviour of the respondents. I
    agree with her assessment.

[44]

To
    recap, two of the respondents, Eftimovski and CLE, initiated parallel
    proceedings in London and subsequently obtained default judgment against the appellant.
    The appellant argues that issues relating to
res judicata
arose as a
    result of the default judgment and created procedural hurdles associated with
    setting it aside. Accordingly, he should not be held responsible for this
    delay.

[45]

Second,
    Laskowskys death occurred during a period of indulgence granted to Re/Max and
    Carriage South in order for them to complete their internal investigations of
    the allegations made in the claim. Accordingly, the appellant argues that he
    should not be held responsible for the obvious prejudice that flows from the
    lack of evidence from Laskowsky.

[46]

I
    reject these arguments. The status hearing judges assessment must be
    considered in light of the general rule that the party who commences the
    proceeding bears primary responsibility for its progress:
Wellwood
,
    at para. 48.

[47]

I
    acknowledge that it may be frustrating to a party when its adversary initiates
    a proceeding in another jurisdiction. However, I am unmoved by the facts of the
    case before me. Eftimovski and CLE issued their action against the appellant on
    February 13, 2007. They obtained default judgment in June 2007. The appellant
    did not initiate his action until December 12, 2007 nor did he defend or
    otherwise deal with the Eftimovski and CLE action until August 2010.

[48]

With
    respect, the fact that default judgment was obtained six months before the
    appellant initiated his action in another jurisdiction serves only to highlight
    the dilatory conduct of the appellant in this action. It raises more questions
    about why the appellant felt it was necessary to initiate the Barrie Action in
    the first place. Therefore, I am not convinced that the status hearing judge
    somehow wrongfully held the appellant responsible for the delay in the action.

[49]

With
    respect to the appellants failure to examine Laskowsky for discovery during
    the period of indulgence granted to Re/Max and Carriage South, it is noteworthy
    that Laskowsky himself did not request a period of indulgence from the
    appellant. Accordingly, Laskowsky was free to be examined for discovery by the
    appellant between the issuance of the action in December 2007 and Laskowskys
    death in April 2009.

[50]

It
    was incumbent on the appellant to conduct his action in a proactive manner.
    Accordingly, in my view, it is not unfair to ascribe the prejudice caused by
    Laskowskys death to the appellant.

[51]

I
    conclude that the status hearing judge did not err in her assessment of delay
    and prejudice to the appellant. Therefore, I would not give effect to this
    ground of appeal.

(5)

The applicability of
    the finality principle

[52]

As
    I read her reasons, I do not take the status hearing judge as having applied
    the finality principle articulated by this court in
Marché DAlimentation
    Denis Thériault Ltée
. Rather, it appears that she was merely paraphrasing
    this courts pronouncement of the policy rationale that status hearings provide
    the court with a mechanism to prevent abuse of its processes and dilatory
    behaviour on the part of plaintiffs. Status hearings serve an important
    function in ensuring that disputes are resolved efficiently.

D.

DISPOSITION

[53]

In
    my view, the decision of the status hearing judge was thorough and demonstrated
    a keen understanding of the factual matrix surrounding the conduct of this
    action. Therefore, I would dismiss the appeal.

[54]

I
    would not interfere with the costs order fixed by the motion judge. On the
    appeal, costs are fixed at $10,500 to the respondents, inclusive of all
    applicable taxes and disbursements.

Released:

PR                                         M. Tulloch
    J.A.

JUN -4 2013                           I agree R.A. Blair

I agree
    Paul Rouleau J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Gardner v. Canada (Attorney
    General), 2013 ONCA 423

DATE: 20130621

DOCKET: C55378

Laskin, MacPherson and Gillese JJ.A.

BETWEEN

Sheridan Gardner

Plaintiff (Appellant)

and

Attorney General of Canada
    and Her
    Majesty the Queen in Right of Ontario

Defendants (Respondents)

Paul Champ, for the appellant

Brian Harvey, for the respondents

Heard: November 30, 2012

On appeal from the judgment of Justice Robert J. Smith of
    the Superior Court of Justice, dated March 20, 2012, with reasons reported at
    2012 ONSC 1837.

Laskin J.A.:

A.

overview

[1]

The sole issue on this appeal is whether the motion judge erred in
    holding that Sheridan Gardners claims against the federal government for abuse
    of power and misfeasance in public office were barred by the
Limitations
    Act, 2002
, S.O. 2002, c. 24, Sched. B.

[2]

Gardner was a federal government employee. From 1992 to 1995, she was
    posted to Japan, where she moved with her husband, Neil McFadyen, and their
    daughter.  Under the federal
Income Tax Act
, R.S.C. 1985, c. 1 (5th
    Supp), government employees posted abroad are deemed residents of Canada for
    tax purposes.  McFadyen was not a government employee, and for the years 1993
    to 1995, he filed his tax returns in Japan. In 1997, however, Revenue Canada reassessed
    McFadyen as a Canadian resident.  Revenue Canada then reassessed Gardner as a
    factual resident of Canada.

[3]

Gardner contended that no other federal government employee working
    abroad had been assessed this way.  She maintained that Revenue Canada
    deliberately misapplied the tax laws to her to support its tax case against her
    husband.  She appealed her income tax reassessment and eventually was
    successful.  Minutes of Settlement were signed and incorporated into an order
    of the Superior Court on February 17, 2005.  On February 16, 2007  within two
    years of the order  Gardner issued a notice of action claiming damages for
    various torts, including abuse of power and intentional or negligent infliction
    of mental suffering.

[4]

Two months before the action was to be tried, the Attorney General of
    Canada brought a summary judgment motion to dismiss Gardners action on the
    ground that the two year limitation period in the
Limitations Act, 2002
precluded her claim.  The Attorney General submitted that Gardner was aware of
    all the material facts underlying her tort claims by 1998 or at the latest, by
    2001.  The motion judge agreed.  The crux of his holding is that the tort of
    abuse of power or misfeasance in public office, did not require a successful
    appeal of her tax reassessment in order for the cause of action to accrue.

[5]

Thus, the narrow question on this appeal is whether Gardner was entitled
    to seek a determination that her tax reassessment was invalid before proceeding
    with her claim.  I would answer yes to this question and therefore would hold
    that Gardners action is not barred by the limitation period.

B.

relevant background

[6]

The motion judge accepted Gardners factual assertions for the purpose
    of resolving the motion.  The following is a brief summary of her assertions.

(a)

Posting to Japan

[7]

Gardner worked for Revenue Canada (now, the Canada Revenue Agency or
    CRA).  In 1992, she was posted to the Canadian Embassy in Tokyo as a customs
    attaché. Her job was to conduct anti-dumping investigations in Asia.  McFadyen,
    a professional engineer, went with her.

(b)

Gardner and McFadyen are reassessed as factual residents of Canada

[8]

In December 1996, Gardner received an initial tax reassessment, which
    confirmed her status as a deemed resident under the
Income Tax Act
. Soon
    afterwards, the CRA reassessed McFadyen.  It revoked his exemption under the Canada-Japan
    Income Tax Convention for the years 1993, 1994, and 1995.  Instead, he was
    designated a factual resident of Canada and the province of Ontario.

[9]

In April 1997, the CRA reassessed Gardner as a factual resident of
    Canada.  In her statement of claim, Gardner alleges that CRA employees knew she
    was not a factual resident but deliberately misapplied the law for an
    ulterior motive: to bolster their case against McFadyen.  The appellant asserts
    that no other federal government employee posted abroad had ever been assessed
    as a factual resident of Canada.

[10]

To
    support her claim, Gardner points to information entered into the CRAs
    Residency Determination Advisor in April 1998.  The information entered
    included that Gardner had provincial/territorial hospitalization, a Canadian
    drivers licence, and memberships and professional associations dependent on
    residency.  Gardner contends that this information was patently false.

(c)

Gardners appeal

[11]

Gardner
    appealed her reassessment.  She acknowledges that the amount in issue on her
    appeal was small  roughly $2,500.  But she maintains that the ramifications of
    her appeal were significant.

[12]

An
    internal CRA document written in July 1997 noted that CRA officials had placed
    a stall appeals inquiry directive on Gardners tax appeal file.  Gardner
    alleges that the purpose of this directive was to ensure McFadyens appeal
    would be dealt with first.  Nearly two years later, in 1999, the CRA confirmed
    its reassessment of Gardners tax for the years 1993 and 1994.  Nonetheless, by
    then, responsible CRA officials were aware that Gardner had been wrongly
    assessed.  In October 1999, the CRA litigation officer responsible for her
    appeal sent the following memo to another CRA employee:

I personally feel that our case here is quite weak and the
    Appellant is correct in her assertion that the basis for the changes to her
    assessments were the changes made to her spouses (i.e. we cannot treat him as
    a factual resident of Canada without assessing her in exactly the same manner.)

Gardner did not become aware of this memo until 2007.

[13]

Gardners
    tax appeal was finally resolved in her favour on February 18, 2005, by a
    settlement and a consent order of the Ontario Superior Court.  Gardner brought
    her action less than two years later.  She claimed that CRA officials had
    deliberately misapplied the law for an ulterior purpose and had defended a
    reassessment they knew was invalid.

(d)

Gardners injury claims

[14]

Gardner
    alleges that by August 1998 she was unable to work because of the ongoing
    dispute over the reassessment of her income tax.  In January 1999, she produced
    a medical report linking her disability and inability to work to her conflict
    with the CRA.  In her September 2001 notice of tax appeal to the Ontario
    Superior Court, Gardner sought damages for negligence, abuse of power, and
    Charter violations.
[1]

[15]

Gardner
    also complained to the Canadian Human Rights Commission.  In March 1999, she
    filed a formal complaint alleging discrimination on the ground of marital
    status.  In May 2003, a commission investigation report recommended that
    Gardners complaint be dismissed for lack of evidence.  Gardner delivered a
    lengthy response in August 2003 and a shorter response in September 2003, in
    which she said that because of CRAs actions she had suffered both physical and
    psychological harm and had to go on long-term disability.

C.

analysis

(a)

The motion judges reasons

[16]

Under
    s. 4 of the
Limitations Act, 2002
, Gardner was required to commence
    her action within two years of the day on which she discovered her claim.
    Section 5(1)(a) sets out when a claim is discovered:

5(1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first
    knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by
    or contributed to by an act or omission,

(iii) that the act or omission was that of the
    person against whom the claim is made, and

(iv) that, having regard to the nature of the
    injury, loss or damage, a proceeding would be an appropriate means to seek to
    remedy it; and

[17]

The
    motion judge found that Gardner had discovered her claim by as early as
    August 1998 or no later than September 2001.  At para. 38 of his reasons, he
    said:

Ms. Gardner acknowledged that she had discovered the material
    facts underlying her claim for damages in 1998, as she was aware of the actions
    of the CRA officials which she alleged were wrongful, malicious, carried out
    for an improper purpose and in breach of her
Charter
rights.  She was
    also aware at that time that she had suffered damage as she went on long term
    disability as a result of the stress caused by the reassessment of her Ontario
    income tax return.

[18]

And
    then at para. 51, he wrote:

In 1998, Ms. Gardner was aware that she had
    suffered injury, loss or damage allegedly caused by the actions of
    CRA officials who reassessed her 1993‑94 income tax for the
    allegedly improper purpose and unlawful conduct of harassing her intentionally
    and negligently causing her mental suffering, and to assist in their
    reassessment of her spouse, Neil McFadyen. She was also aware that the alleged
    actions of the CRA officials were the legal cause of her injury and she
    knew that her injuries were compensable in tort law, as she claimed damages for
    these torts in her income tax appeal in 2001.

[19]

At para. 53, the motion judge concluded: By 2001, Ms. Gardner was
    aware of all of the material facts that she relied on as the basis for her tort
    claims.

[20]

Relying on the Supreme Court of Canadas decision in
Canada
    (Attorney General) v. TeleZone Inc.
, 2010 SCC 62, [2010] 3
    S.C.R. 585, the motion judge held, at para. 53, that Gardner could have brought
    her action for misfeasance in public office in 1998 or at least by 2001, as
    she was not seeking to challenge her tax assessment in her claim for tort
    damages.  Therefore, as she did not commence her action until 2007, it was out
    of time.

(b)

Was Gardner entitled to seek a determination that her
    tax reassessment was invalid before proceeding with her claim?

[21]

As I have said in the overview, this appeal turns on the answer to this
    question.  The motion judge answered the question no, and I would answer it
    yes.

[22]

Gardner acknowledges, as the motion judge found, that she was aware of
    the harm caused by the CRA employees who reassessed her tax.  However, she
    submits that she was entitled to obtain a determination that her reassessment
    was invalid before proceeding with her claim.  I agree with this submission.

[23]

Although Gardner has alleged several causes of action in her pleading,
    her principal claim is for abuse of power or misfeasance in public office.  In
Odhavji
    Estate v. Woodhouse
, 2003 SCC 69, [2003] 3 S.C.R. 263,
Iacobucci J. discussed the elements of this tort.  At paras. 22-23
    of his reasons, he wrote that the tort of misfeasance in public office can
    arise in two difference ways, which he called Category A and Category B.  The
    distinction is important, because as I read the motion judges reasons, he
    concluded that Gardners claim falls under Category A, while I conclude that it
    falls under Category
B.  Iacobucci J. said:

What then are the essential ingredients of the
    tort, at least insofar as it is necessary to determine the issues that arise on
    the pleadings in this case?  In
Three Rivers
,
    the House of Lords held that the tort of misfeasance in a public office can
    arise in one of two ways, what I shall call Category A and Category B.
    Category A involves conduct that is specifically intended to injure a person or
    class of persons.  Category B involves a public officer who acts with
    knowledge both that she or he has no power to do the act complained of and that
    the act is likely to injure the plaintiff.  This understanding of the tort
    has been endorsed by a number of Canadian courts: see for example
Powder
    Mountain Resorts
,
supra
;
Alberta
    (Minister of Public Works, Supply and Services)
(C.A.),
supra
; and
Granite Power Corp. v. Ontario
,
    [2002] O.J. No. 2188 (QL) (S.C.J.).  It is important, however, to recall
    that the two categories merely represent two different ways in which a public
    officer can commit the tort; in each instance, the plaintiff must prove each of
    the torts constituent elements.  It is thus necessary to consider the
    elements that are common to each form of the tort.

In my view, there are two such elements.
    First, the public officer must have engaged in deliberate and unlawful conduct
    in his or her capacity as a public officer.  Second, the public officer
    must have been aware both that his or her conduct was unlawful and that it was
    likely to harm the plaintiff.  What distinguishes one form of misfeasance
    in a public office from the other is the manner in which the plaintiff proves
    each ingredient of the tort.  In Category B, the plaintiff must prove the
    two ingredients of the tort independently of one another.  In Category A,
    the fact that the public officer has acted for the express purpose of harming
    the plaintiff is sufficient to satisfy each ingredient of the tort, owing to
    the fact that a public officer does not have the authority to exercise his or
    her powers for an improper purpose, such as deliberately harming a member of
    the public.  In each instance, the tort involves deliberate disregard of
    official duty coupled with knowledge that the misconduct is likely to injure
    the plaintiff.

[24]

In essence, under a Category B claim, Gardner has to prove that CRA
    knew that their conduct was unlawful  in other words, that they knew they had
    no lawful authority to reassess Gardner as a factual resident of Canada  and
    that their conduct was likely to harm her.  I do not see how Gardner could show
    CRA knew their conduct  reassessing her as a factual resident of Canada  was
    unlawful without first showing that the reassessment itself was invalid.  This,
    Gardner has done by pursuing her statutory appeal of her reassessment.

[25]

That Gardner wanted to show her reassessment was invalid is what
    distinguishes her case from the result in
TeleZone
.
TeleZone
itself reflected the courts
    concern that procedural, costly, and time consuming road blocks should not be
    put in the way of individuals who claim to have been injured by government
    action and wish to seek redress in the courts.  As Binnie J. said at para. 18,
TeleZone
is fundamentally about access to justice.

[26]

Thus, in a case such as
TeleZone
, where
    the plaintiff was seeking compensation for an invalid Ministerial decision but
    not seeking to invalidate the decision itself, the plaintiff was not required
    to pursue judicial review of the decision before suing for damages.  Gardners
    case is different, and in
TeleZone
, Binnie J.
    recognized the difference.  He wrote at para. 19:

If a claimant seeks to set aside the order of a federal
    decision maker, it will have to proceed by judicial review, as the
Grenier
court held.  However, if the claimant is content to let the order stand
    and instead seeks compensation for alleged losses (as here), there is no
    principled reason why it should be forced to detour to the Federal Court for
    the extra step of a judicial review application (itself sometimes a costly
    undertaking) when that is not the relief it seeks.  Access to justice
    requires that the claimant be permitted to pursue its chosen remedy directly
    and, to the greatest extent possible, without procedural detours.

As Gardner sought to set aside her reassessment, she
    was entitled to exercise her statutory right of appeal before bringing her
    action for damages.

[27]

I
    suppose Gardner could have brought a Category A claim for misfeasance in public
    office  a claim that would focus only on the conduct of the CRA employees and
    would not require showing that her reassessment was invalid  and thus a claim
    that could have been brought by 2001.  The Attorney General submits that this
    is the route Gardner ought to have followed.  However, he acknowledges that this
    claim would not have much merit without a successful tax appeal.  He proposed
    that Gardner should have started her action by 2001 and then sought a stay of
    her action pending a resolution of her tax appeal.  She undoubtedly could have
    done what the Attorney General proposed, but to say that she was required to do
    so is directly contrary to the philosophy underlying
TeleZone
.  Binnie
    J. said at para. 18:

This appeal is fundamentally about access to justice.
    People who claim to be injured by government action should have whatever
    redress the legal system permits through procedures that minimize unnecessary
    cost and complexity.  The Courts approach should be practical and
    pragmatic with that objective in mind.

Gardner has taken a practical and pragmatic approach
    to her claim against the federal government.  And, in my view, she started her
    lawsuit within the limitation period.

D.

conclusion

[28]

I
    conclude that Gardner was entitled to show that her tax assessment was invalid before
    proceeding with her claim.  I would allow her appeal, set aside the order of
    the motion judge, and in its place, order that the Attorney Generals motion
    for summary judgment be dismissed.

[29]

Gardner
    is entitled to her costs of the appeal and the motion, fixed in the agreed-upon
    amounts of $7,000 and $6,000, respectively, each amount inclusive of
    disbursements and applicable taxes.

Released: Jun 21, 2013                                          John
    Laskin J.A.

JL                                                                     I
    agree J.C. MacPherson J.A.

I
    agree E.E. Gillese J.A.

[1]
Maranger J. struck these claims for damages.  He held that they were distinct
    from her reassessment appeal.


COURT OF APPEAL FOR ONTARIO

CITATION: Ghesari Brothers
    Inc. v. Rosenberg, 2013 ONCA 408

DATE: 20130617

DOCKET: C56347

Laskin, Rosenberg and Tulloch JJ.A.

BETWEEN

Ghesari Brothers Inc.

Plaintiff (Appellant)

and

Irving Rosenberg

Defendant (Respondent)

Mark A. Klaiman, for the appellant

Timothy Gleason and
Shoshana Bentley-Jacobs,
    for the respondent

Heard: June 14, 2013

On appeal from the order of Justice John R. McCarthy of
    the Superior Court of Justice, dated November 2, 2012.

APPEAL BOOK ENDORSEMENT

[1]

In our view, the question when the claim was discoverable is a genuine
    issue requiring a trial.  On the record before us, we cannot say that the
    plaintiff suffered lose or damage before it sold the property in March 2010.
    Until then, the plaintiff still had the property, and there was no evidence
    that it was worth less until the sale took place.

[2]

Accordingly, the appeal is allowed, the judgment of the motion judge is
    set aside, and the motion for summary judgement is dismissed.  The appellant is
    entitled to its costs of the appeal in the amount of $7,000, and its costs of
    the motion in the amount of $7,000, each amount inclusive of disbursements and
    applicable taxes.


COURT OF APPEAL FOR ONTARIO

CITATION: Global
    Learning Group Inc. v. Eskasoni First Nation, 2013 ONCA 364

DATE: 20130604

DOCKET: C56153

Rosenberg, Goudge and Tulloch JJ.A.

BETWEEN

Global Learning Group Inc.

Applicant (Respondent)

and

Eskasoni First Nation

Respondent (Appellant)

Maxime Faille, for the appellant

David Winer, for the respondent

Heard: April 29, 2013

On appeal from the judgment of Justice
Elizabeth M.

Stewart of the Superior Court of Justice, dated November 7, 2012.

COSTS ENDORSEMENT

[1]

On consent, the parties have agreed that the costs of the appeal should
    be fixed at $15,000 to the respondent GLGI inclusive of fees, disbursements and
    applicable taxes.  So ordered.

M. Rosenberg J.A.

S.T. Goudge J.A.

M. Tulloch J.A.