COURT OF APPEAL FOR ONTARIO

CITATION: Independence Plaza 1 Associates, L.L.C. v.
    Figliolini, 2017 ONCA 44

DATE: 20170118

DOCKET: C61847

Strathy C.J.O., Pardu and Brown JJ.A.

BETWEEN

Independence Plaza 1 Associates, L.L.C.

Applicant
(Respondent in appeal)

and

John Figliolini

Respondent
(Appellant)

Larry M. Belowus, for the appellant

David M. McNevin, for the respondent

Heard: November 7, 2016

On appeal from the judgment of Justice Thomas J. Carey of
    the Superior Court of Justice, dated February 5, 2016.

Strathy C.J.O.:

[1]

This
    appeal raises two questions:

(a)

What limitation period applies to a proceeding on a foreign judgment in
    Ontario? and

(b)

When does that limitation period begin to run?

[2]

The
    motion judge found that the limitation period was the two-year basic
    limitation period specified in s. 4 of the
Limitations Act, 2002
,
    S.O. 2002, c. 24, Sched. B. It began to run when the appeal of the foreign
    judgment was dismissed.

[3]

For
    the reasons that follow, I would dismiss the appeal and answer the questions it
    raises as follows:

(a)

A two-year limitation
    period applies to a proceeding on a foreign judgment; and

(b)

The limitation period begins to run, at the earliest, when the time to
    appeal the foreign judgment has expired or, if an appeal is taken, the date of
    the appeal decision. The time may be longer if the claim was not discovered
    within the meaning of s. 5 of the
Limitations Act, 2002
, until a date
    later than the appeal decision.

A.

background

[4]

On
    January 24, 2013, the respondent obtained a judgment against the appellant in the
    New Jersey Superior Court for the payment of US$115,248. An appeal to the
    Appellate Division was dismissed on July 17, 2014.

[5]

On
    May 1, 2015, the respondent brought an application in the Ontario Superior
    Court of Justice to recover damages based on the New Jersey judgment, in an
    equivalent amount expressed in Canadian dollars. The application was commenced more
    than two years after the New Jersey judgment was rendered, but less than two
    years after the dismissal of the appeal.

[6]

The
    appellant pleaded that the proceeding was time-barred. He argued that the
    limitation period was two years under s. 4 of the
Limitations Act, 2002
and
    that time ran from the date of the first-instance New Jersey judgment. The
    result, he said, was that the limitation period expired before the application was
    commenced in Ontario.

[7]

The
    application judge rejected this defence and granted judgment in favour of the
    respondent.

B.

the application judges reasons

[8]

The
    application judge held that the proceeding on the New Jersey judgment was in
    time because it was commenced within two years of the dismissal of the New
    Jersey appeal.

[9]

He
    found support for his decision that time ran from the date of the New Jersey
    appeal in Part III, Art. III, s. 1 of the
Reciprocal Enforcement of
    Judgments (U.K.) Act
, R.S.O. c. R.6 (REJUKA), which provides that a
    judgment of a United Kingdom court may be enforced in Ontario within six years
    after the date of judgment or, where there have been proceedings by way of
    appeal against the judgment,
after the date of the last
    judgment given in those proceedings
 (emphasis added).

[10]

He also found support
    in the Supreme Court of Canadas decision in
Yugraneft Corp. v. Rexx
    Management Corp
., 2010 SCC 19, [2010] 1 S.C.R. 649. Rothstein J. held at
    para. 57 that a judgment debtors non-performance of the obligation created by a
    foreign arbitration judgment is only discoverable under the Alberta
Limitations
    Act
, R.S.A. 2000, c. L-12,
on the date the appeal
    period expires or, if an appeal is taken, the date of the appeal decision

    (emphasis added).

[11]

In the application
    judges view, it would be inefficient and promote a multiplicity of proceedings
    to require a foreign judgment creditor to commence an Ontario proceeding
    pending an appeal of the underlying judgment.

[12]

The application judge
    found it unnecessary to consider the respondents alternative argument that its
    proceeding on the New Jersey judgment fell under s. 16(1)(b) of the
Limitations
    Act
,
2002
, which states that there is no limitation period in
    respect of a proceeding to enforce an order of a court, or any other order
    that may be enforced in the same way as an order of a court. He suggested,
    however, that this court might wish to reconsider its decision in
Lax v.
    Lax
(2004), 70 O.R. (3d) 520 (C.A.), which dealt with the limitation
    period for a proceeding on a foreign judgment under the predecessor to the
Limitations
    Act, 2002
.

C.

the submissions of the parties

(1)

The Appellant

[13]

The appellant submits
    that the application judge erred in holding that the limitation period began to
    run from the disposition of the New Jersey appeal. He submits it ran from the
    date of the first-instance judgment in New Jersey.

[14]

He relies on this
    courts decision in
Lax
, holding that a foreign judgment is
    characterized as a simple contract debt, and argues that the basic two-year
    limitation period in s. 4 of the
Limitations Act, 2002
applies. He also
    relies on a line of Ontario jurisprudence establishing that a foreign judgment
    is final for the purpose of suing on it in Ontario even if the time for appeal
    has not expired or an appeal is pending: see
Four Embarcadero Center
    Venture v. Mr. Greenjeans Corp
. (1988), 64 O.R. (2d) 736 (H.C.); and
Continental
    Casualty Company Co. v. Symons Estate
, 2015 ONSC 6394, 127 O.R. (3d) 758.

(2)

The Respondent

[15]

The respondent maintains
    that no limitation period applies to a proceeding on a foreign judgment because
    it falls under s. 16(1)(b) of the
Limitations Act, 2002
.

[16]

Alternatively, it says
    that if there is a two-year limitation period, the case law concerning when a foreign
    judgment becomes final has no application under the
Limitations Act
,
2002
and that time does not begin to run until appeal rights in the foreign
    jurisdiction have been exhausted.

D.

analysis

[17]

The correct approach
    to resolving the two questions raised by this appeal begins and ends with the
    provisions of the
Limitations Act, 2002
, which is a comprehensive and
    exhaustive scheme for dealing with limitation periods:
Intact Insurance Co.
    of Canada v. Lombard General Insurance Co. of Canada
, 2015 ONCA 764, 128
    O.R. (3d) 658, at paras. 53-56, leave to appeal to S.C.C. refused, [2016]
    S.C.C.A. No. 10 and [2016] S.C.C.A. No. 11.

[18]

Accordingly, I will
    begin my analysis by explaining the purpose of statutes of limitation. I will
    then examine the relevant provisions of the former Ontario
Limitations Act
,
    R.S.O. 1990, c. L.15, and their interpretation in the case law. Finally, I will
    discuss the legislative history of the
Limitations Act, 2002
and the
    relevant provisions of the statute. Against this background, I will address the
    two questions raised by this appeal.

(1)

Discussion

(i)

The purposes of statutes of limitation

[19]

Limitations statutes
    reflect public policy about efficiency and fairness in the justice system.
    There are three broad policy justifications for limitation statutes:
Manitoba
    Metis Federation Inc. v. Canada (Attorney General)
, 2013 SCC 14, [2013] 1
    S.C.R. 623, at paras. 231-234.

[20]

First, they promote
    finality and certainty in legal affairs by ensuring that potential defendants
    are not exposed to indefinite liability for past acts:
Hare v. Hare
(2006),
    83 O.R. (3d) 766 (C.A.), at para. 41. They reflect a policy that, after a
    reasonable time, people should be entitled to put their business and personal pasts
    behind them and should not be troubled by the possibility of stale claims
    emerging from the woodwork.

[21]

Second, they ensure
    the reliability of evidence. It is inefficient and unfair to try old claims
    because evidence becomes unreliable with the passage of time. Memories fade,
    witnesses die and evidence gets lost. After a reasonable time, people should
    not have to worry about the preservation of evidence:
K.M. v. H.M.
,
    [1992] 3 S.C.R. 6, at p. 30.

[22]

Third, and related to
    this, limitation periods promote diligence because they encourage litigants to
    pursue claims with reasonable dispatch.

[23]

Other justifications
    have been given, including the interest in the efficient use of public
    resources through the expeditious resolution of disputes and the desirability
    of adjudicating disputes on the basis of contemporary values and standards: see
    Graeme Mew,
The Law of Limitations
, 3d ed. (Toronto, LexisNexis,
    2016), at pp. 16-18.

(ii)

The former
Limitations Act
, R.S.O. 1990, c. L.15

[24]

Section 45(1)(g) of the former
Limitations Act
contained
    a six-year limitation period for an action on a simple contract or debt. A long
    line of cases held that an action on a foreign judgment was an action on a
    simple contract debt for limitations purposes and therefore subject to that
    six-year limitation period: see
Lax
, at para. 11;
Rutledge v.
    United States Saving & Loan Co.
(1906), 37 S.C.R. 546, at p. 547; and
Bedell
    v. Gefaell (No. 1)
, [1938] O.R. 718 (C.A.), at p. 720. This view was based
    on the fiction of an implied promise by the foreign judgment debtor to pay the
    amount of the judgment. As Feldman J.A. noted, at para. 13 of
Lax
,
    this fiction was necessary because, unlike a domestic judgment, a foreign
    judgment cannot be directly enforced [in Ontario] by execution. Rather, an
    action must be brought to enforce the debt it creates.

[25]

Section 45(1)(c) of the former
Limitations Act
also
    contained a twenty-year limitation period on an action upon a judgment or
    recognizance. In
Lax
, at paras. 20-25, Feldman J.A. confirmed that
    this provision did not apply to an action on a foreign judgment. It applied to
    an action brought in order to toll the limitation period to enforce a domestic
    judgment using the execution procedures set out in r. 60 of the
Rules of
    Civil Procedure
, R.R.O. 1990, Reg. 194.

[26]

The practice of bringing an action on a domestic judgment to
    toll the limitation period for its enforcement within the province was
    discussed by the British Columbia Court of Appeal in
Young v. Verigin
,
    2007 BCCA 551, 72 B.C.L.R. (4th) 332, at paras. 4-8. Newbury J.A. observed that
    in British Columbia, the limitation period for an action on a domestic judgment
    for the payment of money was reduced from twenty to ten years by the
Limitations
    Act
, S.B.C. 1975, c. 37, s. 3(2)(f). That provision was then amended by
    the
Enforcement of Canadian Judgments and Decrees Act
, S.B.C. 2005, c.
    29, by inserting the word local before the word judgment, presumably to
    clarify that the provision did not apply to foreign judgments: see
Limitation
    Act
, S.B.C. 2012, c. 13, s. 7(a).

[27]

In
Lax
,

this court rejected the
    suggestion of Cumming J., in
obiter
, in
Girsberger v. Kresz
(2000), 47 O.R. (3d) 145 (S.C.), at paras. 30-50, affd on other grounds,
    (2000), 50 O.R. (3d) 157 (C.A.), that the historical classification of foreign
    judgments as simple contract debts should be abandoned in order to give full
    faith and credit to foreign judgments on the basis of comity, order and
    fairness. Cumming J.s suggestion would have subjected foreign judgments to the
    twenty-year limitation period in s. 45(1)(c) of the former
Limitations Act
.

(iii)

The history of the
Limitations Act, 2002

[28]

The
Limitations
    Act, 2002
was the culmination of several attempts, beginning in the late
    1960s, to reform, consolidate and simplify the law of limitations in Ontario.
    The history of those attempts was set out by Weiler J.A. in
York
    Condominium Corp. No. 382 v. Jay-M Holdings Ltd.
, 2007 ONCA 49, 84 O.R.
    (3d) 414, at paras. 27-30. See also
McConnell v. Huxtable
, 2013 ONSC
    948, 113 O.R. (3d) 727, at paras. 62-73, affd, 2014 ONCA 86.

[29]

The purpose of the new
    statute was to replace a complex, obscure and confusing regime of multiple
    limitation periods with a simple and comprehensive scheme. The new scheme consists
    of a basic two-year limitation period applicable to most claims, an ultimate
    limitation period of fifteen years and a statutorily-enshrined discoverability
    principle. It was intended to promote certainty and clarity in the law of
    limitation periods: see
Dilollo Estate (Trustee of) v. I.F. Propco Holdings
    (Ontario) 36 Ltd.
, 2013 ONCA 81, 117 O.R. (3d) 81, at para. 61.

(iv)

The
Limitations Act, 2002

[30]

The following
    provisions of the
Limitations Act, 2002
are relevant:

Definitions

In this act

claim means a claim to remedy an injury, loss or
    damage that occurred as a result of an act or omission;

Application

(1) This Act applies to claims pursued in court
    proceedings other than  [not applicable].

Basic Limitation Period

4.
Discovery
5.  (1)
(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).
Presumption
(2)

No limitation period
16. (1)

(b) a proceeding to enforce
    an order of a court, or any other order that may be enforced in the same way as
    an order of a court;
[31]

Because the proceeding
    on the New Jersey judgment brought by the respondent in this appeal is a claim
    pursued in a court proceeding, it falls within the comprehensive and
    exhaustive scheme of the statute.
[32]

The
Limitations
    Act, 2002
eliminated its predecessors twenty-year limitation period for
    an action upon a judgment or recognizance. However, it included a proceeding
    to enforce an order of a court or any other order that may be enforced in the same
    way as an order of a court in the proceedings for which there is no limitation
    period under s. 16(1).
(2)

Does s.
    16(1)(b) apply to a proceeding on a foreign judgment?
[33]

I turn now to the
    first question raised in this appeal  whether there is
any
limitation period applicable to a proceeding on a foreign judgment. Section
    16(1) of the
Limitations Act, 2002
, which had no counterpart in the
    former statute, created a class of claims that are subject to no limitation
    period, rather than the basic two-year limitation period or the ultimate fifteen-year
    limitation period.
[34]

The matters covered by
    s. 16(1) are, in summary, as follows:
·

claims for declaratory relief, if no consequential relief is
    sought;
·

claims to enforce an order of a court or any other order that may
    be enforced in the same way as an order of a court;
·

claims for support or maintenance in family law matters;
·

proceedings to enforce a domestic arbitration award;
·

proceedings under the
Civil Remedies Act, 2001
, S.O.
    2001, c. 28;
·

claims by debtors or creditors in possession of collateral;
·

claims in relation to sexual assault, sexual misconduct in
    relation to minors and assault on minors; and
·

certain proceedings by the Crown or other agencies in relation to
    claims by the Crown or in relation to government programs, loans or grants.
[35]

The interpretation of
    s. 16(1)(b) has been the subject of conflicting decisions of the Ontario Superior
    Court of Justice. In
Commission de la Construction du Quebec v. Access
    Rigging Services Inc.
, 2010 ONSC 5897, 104 O.R. (3d) 313, McLean J. dealt
    with an application to enforce a 2005 Quebec judgment in Ontario. The
    application was brought in 2010. Quebec is not a reciprocating party to the
Reciprocal
    Enforcement of Judgments Act
, R.S.O. 1990, c. R.5 (REJA). Hence, the
    basic two-year limitation period applied unless the claim fell within s.
    16(1)(b) of the
Limitations Act, 2002
. The judgment debtor sought to
    dismiss the application as time-barred.
[36]

The judgment creditor,
    relying on
Morguard Investments Ltd. v. De Savoye
, [1990] 3 S.C.R.
    1077, and
Girsberger
argued that comity supported a liberal interpretation
    of s. 16(1)(b) as being applicable to foreign judgments.
[37]

McLean J. rejected
    this argument, finding that the two-year limitation period applied. Relying on
Lax
,
    he held that nothing in the wording of order of a court in s. 16(1)(b) shows
    an intention to change the common law position that a foreign judgment cannot
    be directly enforced in Ontario and that it must be converted into a domestic
    judgment that is enforceable in Ontario. In previous iterations of the act, the
    analogous term judgment referred to domestic judgments that could be enforced
    in Ontario without bringing a proceeding on the judgment.
[38]

Moreover, McLean J.
    held that to interpret s. 16(1)(b) as applicable to proceedings on foreign
    judgments would be inconsistent with REJA, which contains a six-year limitation
    period for the registration of judgments of the courts of other provinces and
    territories, except Quebec.
[1]
He found that the judgment creditors argument would lead to the incongruous
    result that there was no limitation period applicable to proceedings on Quebec
    judgments in Ontario, but proceedings on the judgments of other provinces would
    have a six-year limitation period.
[39]

McLean J. observed
    that the purpose of the
Limitations Act, 2002
was to simplify the
    previously complex scheme of limitations and said it would have been simple
    enough to include foreign judgments in s. 16(1)(b), had that been the
    legislatures intention. It was not the courts responsibility to make a change
    that the legislature had not.
[40]

In
PT ATPK
    Resources TBK (Indonesia) v. Diversified Energy and Resources Corp.
,

2013
    ONSC 5913, Newbould J. questioned the reasoning in
Access Rigging.
He
    suggested that knowledge of a foreign judgment did not fit well with the language
    of knowledge of injury loss or damage in the discoverability provision in s.
    5 of the
Limitations Act, 2002
. In his view, it made more sense to
    treat a claim for the enforcement of a foreign judgment as having no limitation
    period under s. 16(1)(b), to which the discoverability provision does not apply.
    This, he said, would also be more consistent with the principles of comity
    expressed by the

Supreme Court of Canada in
Beals v. Saldhana
,
    2003 SCC 72, [2003] 3 S.C.R. 416,

and
Pro Swing Inc. v. Elta Golf
    Inc
., 2006 SCC 52, [2006] 2 S.C.R. 612.
[41]

In
S.A. Horeca
    Financial Services v. Light
, 2014 ONSC 4551,
[2]
Murray J. disagreed with
Access Rigging
and preferred the reasoning in
PT ATPK.
He also referred to
Beals
, noting the importance of
    comity. In contrast to the view taken in
Access Rigging
, he suggested
    that the legislatures failure to
exclude
foreign
    judgments from s. 16(1)(b) was significant.
[42]

It falls to this court,
    as a matter of first impression, to interpret whether s. 16(1)(b) applies to a
    proceeding on a foreign judgment. The words of s. 16(1)(b) are to be read in
    light of the language of the provision as a whole, their context within the
    statutory scheme, and the purposes of the
Limitations Act, 2002:
see
R.
    v. Hajivasilis
, 2013 ONCA 27, 114 O.R. (3d) 337, at para. 23; and
Ayr
    Farmers Mutual Insurance Co. v. Wright
, 2016 ONCA 789, at paras. 26,
    28-29, 31-32.
[43]

First
, therefore, I consider the language of
    s. 16(1)(b) as a whole.
[44]

Phrases serving
    parallel functions and associated by the disjunction or in a statutory
    provision influence each others meaning. The parallelism invites the reader
    to look for a common feature among the terms to resolve any ambiguities: Ruth
    Sullivan,
The Construction of Statutes
, 6th ed. (Markham: LexisNexis,
    2014), at p. 230. The Supreme Court has stated that a term or an expression
    should not be interpreted without taking the surrounding terms into account in
    order to identify a common thread:
Opitz v. Wrzesnewskyj
, 2012 SCC
    55, [2012] 3 S.C.R. 76, at paras. 40, 43.
[45]

In my view, the term
    order of a court in s. 16(1)(b) takes its meaning, in part, from the parallel
    phrase immediately associated with it  namely, any other order that may be
enforced
in the same way as an order of a court
    (emphasis added). I observe that a similar parallel phrase is found in s. 19(1)
    of the
Statutory Powers Procedure Act
, R.S.O. 1990, c. S.22, which
    provides that [a] certified copy of a tribunals decision or order in a
    proceeding may be filed in the Superior Court of Justice by the tribunal or by
    a party and on filing shall be deemed to be an order of that court and is
enforceable
as such (emphasis added).
[46]

The common feature
    or common thread linking these parallelisms is the concept of enforceability.
    Section 16(1)(b) of the
Limitations Act, 2002
applies to court orders
    and to other orders, such as those of persons exercising a statutory power of
    decision, that are enforceable in the same way as a court order.
[47]

This common thread within
    s. 16(1)(b) does not extend to foreign judgments. The domestic judgments contemplated
    by the provision are directly enforceable in Ontario by means of the execution procedures
    in r. 60 of the
Rules of Civil Procedure
, including writs of seizure
    and sale, garnishment, or the appointment of a receiver:
Lax
, at para.
    21. By contrast, like an order of a foreign arbitral tribunal, the debt
    obligation created by a foreign judgment cannot be directly enforced in Ontario
    in the absence of reciprocal enforcement legislation such as REJA or REJUKA. A
    proceeding in Ontario must be brought first: see
Lax
at paras. 11-13;
Yugraneft
at para. 45;
Chevron Corp. v. Yaiguaje
, 2015 SCC 42, [2015] 3
    S.C.R. 69, at para. 43. That proceeding may result in a judgment or order of
    the Ontario court. The resulting order may be enforced as an order of the court,
    with no applicable limitation period.
[48]

Thus, the judgment of
    a foreign court is one step removed from being an order of a court for the
    purpose of s. 16(1)(b) of the
Limitations Act, 2002
. It is not on the
    same level as an order of an Ontario court or any other order, such as an order
    of an Ontario statutory decision maker, which may be enforced as an order of a
    domestic court. This was adverted to by Feldman J.A. in
Lax
, at para.
    31, in explaining why she did not agree with the approach taken by Cumming J.
    in
Girsberger
:
[A]s long as only domestic judgments can be enforced by
    execution and the other methods discussed above, and therefore foreign
    judgments must be transformed into domestic judgments or registered before they
    are enforceable as domestic judgments, there is not parity of treatment.
[49]

There are good reasons
    for giving different treatment for limitations purposes to the enforcement in
    Ontario of a judgment of an Ontario court, on the one hand, and a judgment of a
    foreign court, on the other hand. The principle of territorial sovereignty means
    that the judgment of a court has effect only inside the territory in which the
    court is located and cannot be enforced outside its borders: Stephen G.A. Pitel
    & Nicholas S. Rafferty,
Conflict of Laws
, 2d ed. (Toronto: Irwin
    Law, 2016), at p. 162. The extraterritorial enforcement of a courts order is not
    a legitimate exercise of state power: see
Tolofson v. Jensen
, [1994] 3
    S.C.R. 1022, at p. 1052;
Club Resorts Ltd. v. Van Breda
, 2012 SCC 17,
    [2012] 1 S.C.R. 572, at para. 31;
Chevron
, at paras. 47-48; and
Endean
    v. British Columbia
, 2016 SCC 42, 401 D.L.R. (4th) 577, at para. 45.
[50]

Thus, while a domestic
    judgment can be enforced as of right in Ontario, it is necessary to bring a
    proceeding on a foreign judgment. If that proceeding is successful, it will
    give rise to an Ontario judgment which can be directly enforced in the province.
[51]

Furthermore, a
    judgment creditor who brings an Ontario proceeding on a foreign judgment must show
    that the foreign court had jurisdiction and that the judgment is final and for
    the payment of money (or that it would be appropriate for the Ontario court to
    recognize it as enforceable within the province even if it is interlocutory or
    non-monetary): see
Pro Swing
;
Chevron
; and
Cavell
    Insurance Co. (Re)
(2006), 80 O.R. (3d) 500 (C.A.), at para. 41.
[52]

The foreign judgment
    debtor is entitled to raise defences to the proceeding, such as fraud, denial
    of natural justice and public policy: see
Beals
. These defences
    distinguish foreign judgments from local judgments, against which the sole
    recourse is an appeal: Janet Walker & Jean-Gabriel Castel,
Canadian
    Conflict of Laws
, loose-leaf (Rel. 54-3/2016 Pub.5911), 6th ed. (Toronto:
    LexisNexis, 2005), at para. 14.3.
[53]

I conclude that the
    language of s. 16(1)(b) of the
Limitations Act, 2002
suggests that the
    term order of a court refers to an order of a domestic court.
[54]

Second
, I consider the statutory context of
    s. 16(1)(b) of the
Limitations Act, 2002
.
[55]

Section 16(1)(b) also
    takes its meaning from the surrounding provisions of s. 16. When statutory
    provisions are grouped together, the legislature is presumed to have drafted
    each with the others in mind:
Inland Revenue Commissioners v. Hinchy
,
    [1960] A.C. 748 (H.L.), at p. 766. They tend to illuminate each others meaning
    because they share a single idea: Ruth Sullivan,
Statutory Interpretation
,
    3d ed. (Toronto, Irwin Law, 2016), at p. 175.
[56]

The other provisions
    grouped together in s. 16 pertain to claims such as family law support awards,
    sexual assault claims and government claims that are considered so important
    that, for one policy reason or another, they should have no limitation period
    at all. For example, the policy reason underlying the exemption for sexual
    assault claims is grounded in the likelihood that the dynamic of the
    relationship will impede the autonomy of the victim:
Boyce v. Toronto
    (City) Police Services Board
, 2011 ONSC 53, at para. 40,
    affd, 2012 ONCA 230.
[57]

In
    this context, it is important to identify the policy reason for including claims
    to enforce an order of a court in the subset of claims that have no
    limitation period under s. 16. In my view, the reason is that such claims have
    already passed a limitations hurdle under Ontario law  a court order can only
    be obtained if the underlying cause of action giving rise to it was not
    time-barred.
[58]

This
    was the policy reason suggested by the British Columbia Law Reform Commission,
    in its 1974
Report on Limitations
, for the
    argument that no limitation period should apply to claims to enforce domestic court
    orders. As quoted by Newbury J.A. in
Young v. Verigin
, at para. 7, the commission wrote:
Furthermore, the successful plaintiff cannot
    be said to have slept on his rights. He has taken action, and as a consequence
    recovered judgment. It might be argued, with considerable justification, that
    no limitation period whatsoever should exist with respect to the enforcement of
    judgments. It may seem unfair that the plaintiff who has been put to the
    trouble and expense of obtaining a judgment to enforce a right or obligation
    should face a further limitation period with respect to the exercise of his
    rights under the judgment. Why should he not be free to pursue his rights under
    the judgment at his leisure if he so chooses?
[59]

It
    follows that the term order of a court in s. 16(1)(b) should be interpreted
    as referring to an order of a domestic court only. A proceeding on a foreign
    judgment has not passed any Ontario limitations hurdle. If the action on the foreign
    judgment is successful, it results in an Ontario judgment, which is subject to
    no limitation period. But that can only be justified if the underlying cause of
    action based on the foreign judgment has already passed a limitations hurdle in
    Ontario.
[60]

I find support for
    this conclusion in the
Report of the

Ontario Law Reform Commission
    on the Limitation of Actions
(Toronto: Department of the Attorney General,
    1969), at pp.50-51. The report stated, at p. 49, that there was good reason to
    apply the longer twenty-year limitation period in the former
Limitations
    Act
to actions on domestic judgments because, in terms later adopted by
    the British Columbia report, the successful plaintiff cannot be said to have
    slept on his rights. He has taken action and, as a consequence, recovered
    judgment. However, the report nevertheless recommended that foreign judgments
    should remain subject to the six-year limitation period governing debts in the
    former
Limitations Act
, notwithstanding the artificiality of treating
    them as simple contract debts.
[61]

It is also noteworthy
    that several provinces have subjected foreign judgment proceedings to a special
    limitation period that is distinct from the one that applies to proceedings on
    domestic judgments. British Columbias
Limitation Act
subjects local
    judgment proceedings to a ten year limitation period in s. 7, but it deals with
    extraprovincial judgments separately. Section 2(1)(l) of Manitobas
The
    Limitation of Actions Act
, C.C.S.M., c L150, treats Canadian judgments
    differently from other judgments. Newfoundland sets a six-year limitation
    period on an action to enforce a foreign judgment and a ten-year period on
    actions to enforce a judgment of a court in the province: see
Limitations
    Act
, S.N.L. 1995, c. L-16.1, s. 6(1)(g). And Prince Edward Islands
Statute
    of Limitations
, R.S.P.E.I. 1988, c. S-7, s. 2(1)(f) distinguishes between
    extraprovincial judgments and other judgments.
[62]

The statutory context
    therefore suggests that the language of s. 16(1)(b) of the
Limitations Act,
    2002
is confined to orders of domestic courts.
[63]

Third
, and finally, I consider s. 16(1)(b)
    in light of the purposes of limitations statutes.
[64]

It would be contrary
    to the purposes of limitations statutes to interpret s. 16(1)(b) as exempting
    foreign judgments from any limitation period. If it were always possible to
    bring a proceeding on a foreign judgment in Ontario without time limitation, no
    matter when and where it was obtained, the debtor would be indefinitely exposed
    to the prospect of defending such proceedings in Ontario. As was pointed out in
    the Ontario Law Reform Commissions report at p. 50, problems associated with
    the preservation and reliability of evidence are especially pronounced for
    foreign judgment debtors. This militates in favour of having some limitation
    period apply to proceedings on foreign judgments. As well, exempting such
    proceedings from a limitation period would not encourage diligence or
    reasonable dispatch on the part of the foreign judgment creditor, who, unlike
    domestic judgment creditors, has not already surmounted an Ontario limitations
    hurdle.
[65]

Before concluding, I would
    remark that, despite their undoubted importance, the principles of comity
    expressed in
Morguard
,
Beals
,
Chevron
and
Cavell
do not require the absence of
any
limitation
    period for a proceeding on a foreign judgment. Nor do they supersede the
    equally important policy rationales for limitations statutes. It is one thing
    to remove barriers to the extraterritorial recognition of foreign judgments.
    But it is quite another to grant them more generous status than any other debt
    obligation or to give them the same status as a domestic judgment for
    limitations purposes, thereby circumventing the very reasons for limitation
    periods.
[66]

I conclude, therefore,
    that s. 16(1)(b) of the
Limitations Act, 2002
does not apply to
    proceedings on foreign judgments, and the applicable limitation period for the
    respondents proceeding on the New Jersey judgment at issue in this appeal is
    the basic two-year period in s. 4. The result is that time begins to run when
    the claim is discovered within the meaning of s. 5. I turn to that question
    next.
(3)

When does time begin
    to run on a proceeding on a foreign judgment in Ontario?
[67]

The application judge found
    that the limitation period for the respondent to commence his proceeding on the
    New Jersey judgment ran from the date the New Jersey appeal was dismissed. As I
    have noted, he found that this was consistent with REJUKA and with the Supreme
    Courts approach to the enforcement of foreign arbitral awards in
Yugraneft.
[68]

The appellant submits
    that this is inconsistent with previous authorities, including the decision of
    Henry J. in
Four Embarcadero
and, more recently, the decision of Glustein
    J. in
Continental Casualty
. Those cases stand for the proposition that
    a proceeding on a foreign judgment may be commenced in Ontario even if the judgment
    is not final, in the sense that the time to appeal it in the foreign
    jurisdiction has not expired or it is actually under appeal.
[69]

In my view, those
    cases are of no assistance in resolving the issue of when time begins to run in
    a proceeding on a foreign judgment. The question of a judgments finality is
    relevant not to statutory limitation periods to commence a proceeding on a
    foreign judgment, but to the conditions that a foreign judgment creditor must
    satisfy to succeed on the proceeding: see
Cavell
, at paras. 41-43.
[70]

The test under the
Limitations
    Act, 2002
is not whether the judgment is final; it is when the claim is
discovered
, a fact that is ascertained through the
    application of s. 5(1), aided by the presumption in s. 5(2).
[71]

I acknowledge the
    point made by Newbould J. in
PT ATPK
that, in the context of s. 5(1)
    of the
Limitations Act, 2002
, a proceeding on a foreign judgment does
    not fall particularly neatly into the definition of claim as a claim to
    remedy an injury, loss or damage that occurred as a result of an act or
    omission. However, the statute was meant to be comprehensive and exhaustive.
    Section 2(1) provides that it applies to claims pursued in court proceedings,
    and s. 4 provides that the basic two-year limitation period applies unless
    this Act provides otherwise.
[72]

The words injury, loss
    or damage in s. 5(1) can reasonably refer to the debt obligation created by a
    foreign judgment and owed by the foreign judgment debtor to the creditor. The
    act or omission can reasonably refer to the debtors failure to discharge the
    obligation once it became final
.
Viewed in this light, s. 5(1) can
    reasonably be viewed as applying to a proceeding on a foreign judgment.
[73]

I note, in this
    regard, that the discoverability provision in Albertas
Limitations Act
differs from the Ontario provision in that it contains a definition of injury
    that includes the non-performance of an obligation. Rothstein J. adverted to this
    definition in
Yugraneft
, at para. 50. Although Newbould J.s comment in
PT ATPK
is a fair one, Justice Rothsteins reference lends weight to
    the observation that fitting a foreign judgment within the definition of
    injury in s. 5(1) of the
Limitations Act, 2002
is not as strained as
    it might seem.
[74]

Section 5(1) provides
    that a claim is discovered on the earlier of: (a) the day on which the claimant
    first knew, among other things, 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). The test in s. 5(1)(a) has been
    referred to as a subjective test because it looks to the claimants actual
    knowledge, and the test in s.5(1)(b) as a modified objective test because it
    looks to what a reasonable person with the abilities and in the circumstances
    of the claimant ought to have known: see
Ferrera v. Lorenzetti Wolfe
    Barristers and Solicitors
, 2012 ONCA 851, 113 O.R. (3d) 401, at para. 70;
    and
Crombie Property Holdings Limited v. McColl-Frontenac Inc. (Texaco
    Canada Limited)
, 2017 ONCA 16, at para. 35.
[75]

In
407 ETR
    Concession Co. v. Day
, 2016 ONCA 709, at para. 48, Laskin J.A. explained
    that one reason why the legislature added appropriate means [in s. 5(1)(a)] as
    an element of discoverability was to enable courts to function more efficiently
    by deterring needless litigation. Appropriate means legally appropriate.
    For example, a tactical choice to delay commencement of a proceeding to engage
    in settlement discussions after a loss, injury or damage is known does not make
    the proceeding inappropriate:
Markel Insurance Co. of Canada v. ING
    Insurance Co. of Canada
, 2012 ONCA 218, 109 O.R. (3d) 652, at para. 24.
[76]

Appropriateness must
    be assessed on the facts of each case, and case law applying s. 5(1)(a)(iv) is
    of limited assistance:
Brown v. Baum
, 2016 ONCA 325, 348 O.A.C. 251,
    at para. 41. However, it is noteworthy that courts have held that a proceeding
    is not legally appropriate until other mechanisms for resolving a dispute, such
    as a statutory remedial process, have been exhausted: see
407 ETR
, at
    para. 40;
U-Pak Disposals (1989) Ltd. v. Durham (Regional Municipality)
,
    2014 ONSC 1103, at paras. 22-25;
Kadiri v. Southlake Regional Health Centre
,
    2015 ONSC 621, at paras. 52-57, affd, 2015 ONCA 847; and Mew, at pp. 95-96.
[77]

In the usual case, it
    will not be legally appropriate to commence a legal proceeding on a foreign
    judgment in Ontario until the time to appeal the judgment in the foreign jurisdiction
    has expired or all appeal remedies have been exhausted. The foreign appeal
    process has the potential to resolve the dispute between the parties. If the
    judgment is overturned, the debt obligation underlying the judgment creditors
    proceeding on the foreign judgment disappears.
[78]

This approach is
    consistent with the decision of the Alberta Court of Appeal in
Laasch v. Turenne
,
    2012 ABCA 32, 522 A.R. 168. In that case, the court determined that the
    statutory limitation period to commence a proceeding on a Montana judgment
    began to run even while the creditor sought to register the judgment under
    Albertas reciprocal enforcement legislation. The existence of the reciprocal
    enforcement statute
did not
displace the common
    law process for a proceeding on a foreign judgment. Therefore, the proceeding
    was warranted within the meaning of the discoverability provision of
    Albertas
Limitations Act
even while the creditor sought registration.
[79]

To regard a claim
    based on the foreign judgment as discoverable and appropriate only when all
    appeals have been exhausted is also consistent with the observations of
    Rothstein J. in
Yugraneft
. He stated, at para. 57, that the limitation
    period to enforce a foreign arbitral judgment under Albertas
Limitations
    Act
starts to run when the time to appeal the judgment has expired or,
    where an appeal is taken, the date of the appeal decision.
[80]

Finally, as the
    application judge noted, this approach avoids the risk of multiplicity of
    proceedings by not requiring the judgment creditor to commence a proceeding on
    a foreign judgment in Ontario before all proceedings in the foreign
    jurisdiction have run their course. It furthers the purpose of s. 5(1)(a)(iv)
    of the
Limitations Act, 2002
by deterring the unnecessary litigation
    that may result from commencing an Ontario proceeding on a foreign judgment
    that is subsequently overturned.
[81]

The foregoing approach
    to the discoverability of a foreign judgment does not preclude a foreign
    judgment creditor seeking an interim
Mareva
injunction to freeze
    exigible assets of the judgment debtor in Ontario before a proceeding on the
    foreign judgment is commenced in the province and the foreign appeal process is
    still running its course: see
Chitel v. Rothbart
(1983), 39 O.R. (2d)
    513 (C.A.); and
Aetna Financial Services v. Feigelman
, [1985] 1 S.C.R.
    2. Nor does the approach preclude a foreign judgment debtor obtaining a stay of
    execution of an Ontario judgment that the creditor obtained after successfully
    suing on a foreign judgment that is still under appeal: see
DSLangdale Two
    LCC v. Diasytek (Canada) Inc.
, [2004] O.T.C. 1133 (S.C.), at paras. 13-16.
[82]

In a particular case, a
    claim based on a foreign judgment may not be discovered under s. 5 of the
Limitations
    Act, 2002
until such time as the judgment creditor knew or ought to have
    known that the judgment debtor had exigible assets in Ontario and could be served
    with process: see
Yugraneft
at paras. 49. 58, 61. As s. 5(1)(b) makes
    clear, the discoverability assessment, including the appropriateness criterion,
    must take account of the factual context and the plaintiffs actual
    circumstances, and I reiterate that each case must be decided on its own facts:
    see
407 ETR
, at paras. 34, 45-46.
[83]

In the present case, I
    conclude that the respondents claim based on the New Jersey judgment was
    discoverable on July 17, 2014, the date the appeal was dismissed in New Jersey.
    The respondent would not have reasonably known that a proceeding in Ontario
    would be an appropriate means to seek to remedy its loss until that date. Thus,
    the limitation period for the respondent to commence its proceeding on the New
    Jersey judgment began on that date. The respondent brought the proceeding on
    May 1, 2015, within the applicable two-year limitation period. Hence, the
    proceeding was not time-barred.
E.

order
[84]

For these reasons, I
    would dismiss the appeal, with costs to the respondent in the amount of
    $9,000.00, inclusive of interest and all applicable disbursements.
Released: G.R.S. January 18, 2017
George R. Strathy
    C.J.O.
I agree G. Pardu
    J.A.
I agree David Brown
    J.A.

[1]
REJA is not exclusive, as s. 8 provides that [N]othing in this Act deprives
    any judgment creditor of the right to bring an action for the recovery of the
    amount of a judgment instead of proceeding under this Act. It would appear,
    therefore, that the judgment creditor can either bring a proceeding on the
    foreign judgment or proceed under REJA.

[2]

The decision of Murray J. is unreported. However, it is
    discussed by Weiler J.A. in the context of a motion to lift a stay pending its
    appeal to this court. See
SA Horeca Financial Services v. Light
, 2014
    ONCA 811.


COURT OF APPEAL FOR ONTARIO

CITATION: Intact Insurance Company v. Federated Insurance
    Company of Canada, 2017 ONCA 73

DATE: 20170127

DOCKET: M46124, C62225

Doherty, MacPherson and Lauwers JJ.A.

IN THE MATTER
of the
Insurance Act
, RSO 1990, c. I.8, as amended, and Regulation
    283/95;

AND IN THE MATTER
of the
Arbitration Act
, SO 1991, c. 17;

AND IN THE MATTER
of an Arbitration;

BETWEEN

Intact Insurance Company

Applicant

(Respondent in Appeal)

and

Federated Insurance Company of Canada
,
Old Republic
    Insurance

Company
    of Canada and Her Majesty the Queen the Motor Vehicle

Accident
    Claims Fund

Respondent

(Appellant in Appeal)

Greg Bailey and Bevin Shores, for the appellant

Joseph Lin and Dana Yoon, for the respondent

Heard: December 8, 2016

On appeal from the order of Justice James F. Diamond of
    the Superior Court of Justice, dated February 2, 2016, with reasons reported at
    2016 ONSC 719, 129 O.R. (3d) 549.

Doherty J.A.:

I

overview

[1]

This appeal arises out of a priority dispute between two insurers.  The
    court must decide whether the abuse of process doctrine as described in
Toronto
    (City) v. C.U.P.E., Local 79
,
2003 SCC 63, [2003] 3 S.C.R. 77 (
CUPE
), precluded the appellant
    (Federated) from leading evidence at an arbitration that the vehicle in which
    the injured person was a passenger was covered by an automobile insurance policy
    issued by the respondent (Intact).  The driver of the vehicle had previously
    been convicted of driving without insurance at the time of the accident.

[2]

The arbitrator held that the abuse of process doctrine should not
    prevent Federated from leading evidence that the driver was in fact insured at
    the time of the accident.  On appeal, the application judge reversed the
    arbitrator, holding that the issue could not be re-litigated in the context of
    the arbitration.

[3]

This court granted leave to appeal from the application judges order.
    I would allow the appeal and restore the arbitrators order.

II

facts

[4]

On April 25, 2010, a vehicle driven by Patrick Cadieux collided with a
    truck.  Mr. Cadieuxs four-year-old son, a passenger in his vehicle, suffered
    significant injuries in the crash.  The son claimed Statutory Accident Benefits
    under the
Insurance Act
, R.S.O. 1990, c. I.8.

[5]

The Cadieux vehicle had been insured by Intact.  Intact claimed,
    however, that it had cancelled the policy five days before the accident for
    non-payment of premiums.  Federated insured the truck involved in the accident.

[6]

Under the provisions of s. 268(2)1.(ii) of the
Insurance Act
,
    Intact was responsible to pay the Statutory Accident Benefits if it was the
    insurer of the Cadieux vehicle at the time of the accident.  If, however, that policy
    had been cancelled before the accident, then responsibility for payment of the
    Statutory Accident Benefits would fall on Federated as the insurer of the other
    vehicle involved in the accident:
Insurance Act
, ss. 268(2)1.(ii) and
    (iii).

[7]

Intact and Federated were obligated to arbitrate their dispute pursuant to
    regulations under the
Insurance Act
.  They entered into an arbitration
    agreement which, among other things, empowered the arbitrator to determine
    procedural and interlocutory matters on the arbitration.  Intact paid Mr. Cadieuxs
    sons Statutory Accident Benefits on an ongoing basis while the arbitration
    proceeded.

[8]

At the arbitration, the parties asked the arbitrator to determine a
    preliminary issue.  Although the parties put that issue before the arbitrator
    in an informal manner, I am satisfied that they agreed that Mr. Cadieux had
    been convicted of driving without insurance at the time of the accident
    contrary to s. 2(1) of the
Compulsory Automobile Insurance Act
, R.S.O.
    1990, c. C.25.
[1]
Intact and Federated asked the arbitrator to decide whether the abuse of
    process doctrine prevented Federated from leading evidence that Mr. Cadieux had
    insurance at the time of the accident.  Federated wanted to lead evidence that
    because Intact had not followed the required procedures when purporting to
    cancel the policy, Mr. Cadieux was insured at the time of the accident by
    Intact.  Intact maintained that Mr. Cadieuxs status as an insured or uninsured
    driver had been decided in the proceedings in which he was convicted of driving
    without insurance and that it would be an abuse of process to permit Federated
    to re-litigate that issue.

[9]

On the preliminary motion, Federated filed transcripts of examinations
    of two Intact employees.  It is unnecessary to refer to their evidence in
    detail.  It is sufficient to say that the evidence raised legitimate questions
    about Intacts notification to Mr. Cadieux of the policy cancellation.  Proper
    notice is a precondition to cancellation for non-payment.

III

the decisions below

[10]

In permitting Federated to lead evidence that Mr. Cadieux was insured at
    the time of the accident, the arbitrator emphasized that Federated had not been
    a party to the proceeding that had resulted in Mr. Cadieuxs conviction.  Consequently,
    Federated had no prior opportunity to raise the argument that Intact had not
    complied with the provisions governing policy cancellation.  The arbitrator
    concluded:

All of the jurisprudence brought to my attention by counsel
    herein involve situations where the individual who was convicted or a party
    with identical interests, sought to introduce evidence contrary to that
    supporting the initial conviction.  That is not the case here.  Here it is the
    opposing party Federated that seeks to introduce evidence contrary to the
    conviction at first instance.
Federated played no role whatsoever in the
    original proceeding and was not in a position to influence the outcome of the
    initial proceeding.  I am of the opinion that it would be unfair to deny a
    party of opposite interest an opportunity to lead evidence contrary to the
    initial conviction in the context of a priority dispute pursuant to the
    Insurance Act.
[Emphasis added.]

[11]

In reversing the arbitrator, the application judge held that the
    arbitrators decision that Federated could challenge the facts underlying Mr.
    Cadieuxs conviction raised a question of law reviewable on a correctness
    standard (paras. 22-24).  He also concluded that Federated had failed to lead
    any evidence to the contrary as required by s. 22.1 of the Ontario
Evidence
    Act
, R.S.O. 1990, c. E.23 (
Evidence Act
).  That section
    provides that proof of a prior conviction is proof that the crime was committed
    by the convicted person in the absence of evidence to the contrary.  The application
    judge said, at para. 39:

The onus to lead evidence to the contrary was clearly upon
    Federated.  In the record before the arbitrator, not only was there no
    credible evidence relating to the fathers conviction, there was no evidence
    to the contrary at all.  This is highlighted by the arbitrators own
    conclusions that it was Federateds intention to hopefully tender and
    introduce some unspecified, new evidence during the arbitration that could
    potentially amount to evidence to the contrary.

[12]

The application judge held that as Federated had not led any evidence
    to the contrary under s. 22.1, the arbitrator erred in law by refusing to
    apply the doctrine of abuse of process to prevent Federated from leading
    evidence that Mr. Cadieux had insurance at the time of the accident (paras.
    41-42).

[13]

The application judge briefly considered the abuse of process doctrine
    in more general terms.  After referring to
CUPE
, and noting that the
    consequences of a conviction for driving without insurance were sufficiently
    significant to warrant a serious defence to the charge (para. 45), the
    application judge returned to s. 22.1 of the
Evidence Act
.  He
    reasoned that because litigants who were not parties to the proceeding in which
    the conviction was entered could resort to s. 22.1 to prove the conviction in
    the subsequent proceeding, the arbitrator had erred in holding that Federateds
    non-involvement in the proceeding resulting in the conviction was a significant
    consideration in his decision to allow Federated to re-litigate Mr. Cadieuxs
    insurance status.  The application judge opined, at para. 46:

It is important to note that section 22.1 of the
Evidence
    Act
applies whether or not the father is a party to the arbitration.  In
    my view, the arbitrator focused upon whether Federated was a party to the
    criminal proceeding in deciding whether or not fairness dictated that Federated
    be provided with an opportunity to re-litigate the facts surrounding the
    conviction.  This was an error in law

IV

Analysis

(i)

Standard of review

[14]

For once, the applicable standard of review is not in issue.  Everyone
    agrees that correctness is the appropriate standard of review, both before the
    application judge and in this court:  see
CUPE
,
at paras. 13-16.

(ii)

The errors in law

[15]

In my view, the application judge confused the operation of s. 22.1 of
    the
Evidence Act

and
    the abuse of process doctrine.  That confusion led him into error.

[16]

Section 22.1 of the
Evidence Act
reads in part:

Proof that a person has been convicted  of a crime is proof,
    in the absence of evidence to the contrary, that the crime was committed by the
    person .

[17]

Section 22.1 is a rule of evidence intended to expedite the proof, in a
    subsequent proceeding, of facts decided in a prior criminal proceeding.  The
    section declares that evidence of one fact  a prior conviction  is proof of another
    fact  the convicted person committed the crime  absent evidence to the contrary.

[18]

Under s. 22.1, proof of the prior conviction constitutes proof of all
    of the facts essential to that conviction absent evidence to the contrary:
Caci
    v. Dorkin
, 2008 ONCA 750, 93 O.R. (3d) 701, at para. 15, leave to appeal
    refused, [2009] S.C.C.A. No. 2.  The section applies to convictions for
    provincial regulatory offences as well as convictions for criminal offences:
    see
Andreadis v. Pinto
(2009), 98 O.R. (3d) 701, at paras. 11-16 (S.C.).

[19]

Evidence to the contrary under s. 22.1 refers to evidence that
    contradicts the facts essential to the prior conviction.  For example, evidence
    that a driver who had been convicted of driving without insurance was in fact insured
    at the relevant time would constitute evidence to the contrary under s. 22.1
    led to rebut the proof offered by evidence of the conviction.

[20]

Unlike s. 22.1, the abuse of process doctrine is not an evidentiary
    rule.  It is a common law doctrine developed by the courts to protect the
    integrity of the adjudicative process.  Abuse of process takes many forms.  This
    case is concerned with abuse of process by re-litigation of decided facts.  The
    doctrine precludes re-litigation when it would undermine the integrity of the adjudicative
    process.

[21]

The operation of s. 22.1 and the abuse of process doctrine intersect at the
    phrase evidence to the contrary in s. 22.1.  A party may lead evidence to
    the contrary to avoid the evidentiary rule established in s. 22.1.  The abuse
    of process doctrine operates to foreclose a party from leading that evidence
    to the contrary when to do so would constitute an abuse of the courts process:
    see
Bank of Montreal v. Woldegabriel
, [2007] O.J. No. 1305, at paras.
    47-48 (S.C.).

[22]

The interaction between abuse of process and s. 22.1 is explained in
CUPE
,
at paras. 18-19:

s. 22.1 contemplates that the validity of a conviction may be
    challenged in a subsequent proceeding, but the section says nothing about the
    circumstances in which such challenge is or is not permissible.  That issue is
    determined by the application of such common law doctrines as
res judicata
,
    issue estoppel, collateral attack and abuse of process.  Section 22.1 speaks of
    the admissibility of the fact of the conviction as proof of the truth of its
    content, and speaks of its conclusive effect if unchallenged

Section 22.1 renders the proof of the conviction admissible.
    The question is whether it can be rebutted by evidence to the contrary.
    There are circumstances in which evidence will be admissible to rebut the
    presumption that the person convicted committed the crime, in particular where
    the conviction in issue is that of a non-party.  There are also circumstances
    in which no such evidence may be tendered.
If either issue estoppel or
    abuse of process bars the re-litigation of the facts essential to the
    conviction, then no evidence to the contrary may be tendered to displace the
    effect of the conviction.  In such a case, the conviction is conclusive that
    the person convicted committed the crime.

[Emphasis added.]

[23]

Applying the
CUPE

analysis
    to this case, the interplay between s. 22.1 of the
Evidence Act
and
    the abuse of process doctrine can be described in the following terms.  Intact,
    relying on s. 22.1, argued that proof that Mr. Cadieux had been convicted of
    driving without insurance at the time of the accident proved, for the purposes
    of the arbitration, that he was driving without insurance at that time, negating
    Intacts responsibility to pay Statutory Accident Benefits under the priority
    scheme in the
Insurance Act
.  Federated responded to Intacts position
    with evidence to the contrary consisting of evidence that Intact had not properly
    cancelled the policy, meaning that Mr. Cadieux was insured and that Intact was
    responsible for the Statutory Accident Benefits.  Intact, in turn, argued that the
    abuse of process doctrine should be applied to prevent Federated from leading
    its evidence to the contrary.

[24]

On the preliminary motion, the arbitrator had to decide if the abuse of
    process doctrine should block Federated from leading its evidence to the
    contrary.  The arbitrator was not asked to decide whether Federateds evidence
    would in fact negate the evidentiary value of the proof of Mr. Cadieuxs
    conviction for driving without insurance.

[25]

The application judge erroneously held, at paras. 41-42, that the
    preliminary motion turned on whether Federated had led sufficient evidence to
    the contrary to rebut the evidence offered by proof of Mr. Cadieuxs
    conviction for driving without insurance.  The outcome of the motion depended, not
    on whether Federated had led evidence to the contrary under s. 22.1, but on
    whether Federated had satisfied the arbitrator that in the circumstances it
    should be permitted to challenge the prior conviction with evidence to the
    contrary.  Federateds evidence that the Intact policy had not been properly
    cancelled was offered to demonstrate that if Federated was allowed to
    re-litigate Mr. Cadieuxs insurance status, it had evidence supporting its
    claim that Mr. Cadieux was insured.

[26]

The confusion between the evidentiary rule in s. 22.1 of the
Evidence
    Act
and the abuse of process doctrine reappeared when the application
    judge considered Federateds submission that it should be allowed to
    re-litigate the insurance coverage issue because it had not been a party to the
    proceedings in which Mr. Cadieux had been convicted of driving without
    insurance.  The application judge correctly pointed out that a litigant could
    use s. 22.1 to prove a prior conviction, even if that litigant was not a party to
    the proceedings in which the conviction was entered.  However, the application
    judge erred in law in concluding that the reach of s. 22.1 rendered Federateds
    non-involvement in Mr. Cadieuxs prosecution irrelevant for the purposes of the
    abuse of process doctrine.  That doctrine turns ultimately on whether fairness
    requires re-litigation.  The role played in the earlier proceeding by the party
    seeking to re-litigate a fact is an important consideration in deciding whether
    re-litigation constitutes an abuse of process.  Fairness is more likely to
    favour re-litigation if the party seeking to re-litigate did not have an
    opportunity to litigate the issue at the prior proceeding:
Canam
    Enterprises Inc. v. Coles

(2000),
    51 O.R. (3d) 481, at paras. 57-58, per Goudge J.A., dissenting, approved 2002
    SCC 63, [2002] 3 S.C.R. 307.  The evidentiary reach of s. 22.1 of the
Evidence
    Act
has no relevance to that fairness inquiry.

(iii)

Would re-litigation amount to an abuse of process?

[27]

The application judges legal errors are not necessarily determinative
    of the outcome of the appeal.  I must consider whether a proper application of
    the abuse of process doctrine precluded re-litigation of whether Mr. Cadieux
    was insured at the time of the accident.

[28]

The abuse of process doctrine as it is applied to prevent re-litigation
    is explained in
CUPE
.  I take the following points from the reasons of
    Arbour J.:

·

The
    abuse of process doctrine is a manifestation of a courts inherent power to
    prevent misuse of its process by re-litigation of previously decided facts:
CUPE
,
    at para. 37;

·

The
    doctrine is primarily focused on preserving the integrity of the administration
    of justice rather than protecting the interests of individual litigants:
CUPE
,
    at para. 43;

·

Re-litigation
    inevitably has a detrimental effect on the due administration of justice.  It
    can lead to inconsistent and even irreconcilable results, devalue finality, and
    cause the expenditure of resources, both public and private, on further proceedings
    with no guarantee that the second result will be more accurate than the first:
CUPE
, at paras. 38, 51-52;

·

Re-litigation
    should thus be avoided unless the circumstances dictate that re-litigation is
    in fact necessary to enhance the credibility and the effectiveness of the
    adjudicative process as a whole:
CUPE
, at para. 52;

·

There
    is no closed list of the circumstances in which re-litigation is necessary.  Courts
    will permit re-litigation if in the specific circumstances fairness dictates
    that the original result should not be binding in the new context:
CUPE
,
    at paras. 52-53.

[29]

The factors informing the fairness of permitting re-litigation in a
    given case will vary with the circumstances.
CUPE

identified some of those factors, at
    paras. 52-53.  Other cases have identified other factors:  see e.g.

Hanna v. Abbott
(2006), 82 O.R.
    (3d) 215, at para. 32 (C.A.);
Canam Enterprises Inc.
, at paras. 57-60;
    and
Becamon v. Wawanesa Mutual Insurance Company
, 2009 ONCA 113, 94
    O.R. (3d) 297, at paras. 17-21.

[30]

Most of the factors informing the inquiry involve a comparison of
    different features of the initial proceeding in which the finding of fact was
    made and the subsequent proceeding in which a party seeks to re-litigate that
    fact.  The court, in considering the various factors, must balance the damage
    done by re-litigation to systemic interests, including finality and consistency
    of result, against fairness to the litigant seeking to re-litigate a previously
    determined finding:
CUPE
, at paras. 15, 55.

[31]

I see no point in attempting to catalogue the factors relevant to the
    abuse of process inquiry.  Instead, I will address the factors that are
    relevant here.  There are four:

·

the
    parties to the two proceedings;

·

the
    nature of the initial proceeding (the prosecution);

·

the
    potential consequences or stakes of the initial proceeding; and

·

the
    nature of the second proceeding (the arbitration).

[32]

I start with a comparison of the parties to the two proceedings.  The
    Crown in Right of the Province of Ontario and Mr. Cadieux were the parties to
    the prosecution.  Neither Federated nor Intact were parties, or shared any
    interest in common with either the prosecutor or Mr. Cadieux.

[33]

As Intact was not a party to the prosecution, it cannot complain that
    re-litigation of Mr. Cadieuxs insurance status in the arbitration forces it to
    reprove a fact that it has already expended time and resources proving in another
    proceeding.  Intact is not being vexed to reprove a fact it has already proved:
CUPE
, at para 38.

[34]

Federated is a true stranger to the prosecution of Mr. Cadieux.  There
    is no suggestion that Federated was even aware of the prosecution.
CUPE
accepts that the abuse of process doctrine, unlike issue estoppel, can apply to
    preclude re-litigation by a party who was not a party to the prosecution.  However,
    the non-involvement of the party seeking to re-litigate in the initial
    litigation is a significant factor in determining whether re-litigation
    constitutes an abuse of process.  Clearly, a party who had a full opportunity
    to litigate a fact at a prior proceeding stands on much weaker ground when
    seeking to re-litigate that fact in a different context in a subsequent
    proceeding than does a party who has never had the opportunity to litigate the
    fact in issue:  see
CUPE
, at para. 19;
Canam Enterprises Inc.
,
    at paras. 57-58;
Caci
, at para. 15;
Engels v. Merit Insurance
    Brokers Inc. et al.
(2007), 84 O.R. (3d) 647 (S.C.); and
Morel v.
    Canada
, 2008 FCA 53, [2009] 1 F.C.R. 629.

[35]

The non-involvement of Federated and Intact in the proceedings in which
    Mr. Cadieux was convicted of driving without insurance militates in favour of
    permitting re-litigation of that issue as between Federated and Intact.  In
    particular, Federateds non-involvement in the prosecution was properly treated
    by the arbitrator as an important factor, strongly supporting Federateds contention
    that it should be allowed, in the context of the arbitration, to challenge Mr.
    Cadieuxs insurance status at the time of the accident.

[36]

I turn to the second factor.  The nature of the proceeding, in this case
    the prosecution of Mr. Cadieux for driving without insurance, in which the fact
    that a party seeks to re-litigate was first decided, can affect whether the abuse
    of process doctrine forecloses re-litigation.  The procedures followed in the
    first proceeding may have an impact, positive or negative, on the fairness of
    that proceeding or the reliability of its result:
Guergis v. Novak
,
    2013 ONCA 449, 116 O.R. (3d) 280, at para. 18.  Parties arguing for or against
    re-litigation in a subsequent proceeding may rely on those features of the
    prior proceeding to support their position.  For example, if the initial
    proceeding provided little, if any, procedural fairness to the parties, the
    nature of that proceeding would support arguments in favour of re-litigating
    facts decided in that proceeding:  see
Becamon
, at paras. 21-22.

[37]

Arguments directed at the nature of the initial proceeding can be made
    at a general and a specific level.  The former looks to the statutes and rules
    governing the conduct of the initial proceeding while the latter looks to the
    actual conduct of the specific proceeding in issue.  Arguments that the
    procedures provided for in the relevant rules are so informal as to render the
    outcome of the initial proceeding unfair, or unreliable, can be made without
    evidence.  However, if a party seeks to rely on the conduct of the specific
    prior proceeding, either to support or counter an abuse of process argument, it
    is incumbent on that party to lead evidence to support its position.  For
    example, if one party claims that the conviction entered in the prior
    proceeding should not foreclose re-litigation because the accused did not
    understand the charge, or did not defend the charge, it falls on that party to
    lead evidence to support its claim.  Equally, if a party seeking to invoke the
    abuse of process doctrine at the subsequent proceeding asserts that exactly the
    same factual issues were fully litigated at the prior proceeding, it falls on
    that party to lead evidence to support that position.

[38]

On the preliminary motion before the arbitrator, neither party led any
    evidence about the proceeding resulting in Mr. Cadieuxs conviction.  To the
    extent that the nature of that proceeding was relevant to the abuse of process
    argument, the arbitrator could only assume that Mr. Cadieux was properly
    convicted according to the applicable statutory provisions.

[39]

Mr. Cadieux was prosecuted under the provisions of the
Provincial
    Offences Act
, R.S.O. 1990, c. P.33.  It is safe to assume that the
    prosecution proceeded under Part III of that
Act
.
[2]
The procedures described in Part III of the
Provincial Offences Act
are
    similar to those used in the prosecution of summary conviction matters under
    the
Criminal Code
.  Like a criminal prosecution, Mr. Cadieuxs prosecution
    was carried out by a public prosecutor, acting in the public interest:
CUPE
,
    at para. 31.  Furthermore, as in a criminal proceeding, the prosecution was required
    to prove guilt beyond a reasonable doubt.

[40]

In the absence of any evidence referable to the specific proceedings
    against Mr. Cadieux, I see no reason to doubt the fairness of the proceeding or
    to discount the reliability of any factual findings essential to his
    conviction.  In my view, the nature of the prior proceeding speaks against permitting
    Federated to re-litigate Mr. Cadieuxs insurance status on the arbitration.

[41]

The third factor set out above focuses on the potential consequences of
    the proceedings to the parties.  As Arbour J. indicated in
CUPE
, at
    para. 53, if the stakes of the first proceeding are too minor to generate a
    full and robust response, fairness supports re-litigation of facts decided in
    the first proceeding, especially when the stakes in the second proceeding are
    considerably more significant:  see also
Becamon
, at para. 20.

[42]

As with arguments about the nature of the initial proceedings, arguments
    about the stakes of the first proceeding, both for and against the application
    of the abuse of process doctrine, can be made on a general or specific level.  If
    the statute calls for a minimal penalty, the argument can be made that a party
    would not spend the time or money needed to make a full and robust response
    to the charge.  However, if the potential penalties are significant, one can
    argue that those penalties would naturally generate a full and vigorous defence.

[43]

Apart from arguments based on the penalties provided by the applicable
    legislation, it can be argued that the outcome of the initial proceeding was
    particularly important, or unimportant, to the parties:  see e.g.
Duncan v.
    Morton
, 2013 ONSC 3105, [2012] I.L.R. I-5297, at paras. 27-28, leave to
    appeal to Divisional Court refused, 2012 ONSC 5200.  If that kind of argument
    is to be advanced, the party making the argument must lead evidence to support it.
    No such evidence was led in this case.

[44]

A conviction for driving without insurance carries a minimum fine of
    $5,000 and a potential licence suspension.  I agree with the application judge
    that those consequences are sufficiently serious to assume that a person facing
    that charge would make a full and robust defence, if he had one.  The
    potential outcome of the initial proceeding does not favour allowing Federated
    to re-litigate the finding that Mr. Cadieux drove without insurance.

[45]

The fourth factor germane to the application of the abuse of process
    doctrine in this case looks to the nature of the proceeding in which the party
    seeks to re-litigate the previously-decided fact.  It is fair to say that re-litigation
    of decided facts in any context has some negative impact on the integrity of the
    administration of justice.  However, re-litigation of some facts in certain
    contexts can have a profoundly negative impact on the integrity of the overall
    administration of justice.  Re-litigation of other facts in other contexts will
    have only a minimal impact.

[46]

The facts in
CUPE
present an example of a situation in which
    re-litigation, in the context of a labour arbitration, of facts decided in a
    previous criminal case would have had a very damaging effect on the overall integrity
    of the adjudicative process.   A justice system that could in one proceeding brand
    an individual guilty of sexual assault and worthy of a lengthy jail sentence, and
    in another proceeding declare the same person to have not committed the offence
    and to be entitled to employment as a teacher, could not hope to maintain the
    support of an informed public for either result:  see
CUPE
, at paras.
    57-58.

[47]

The facts of this case are far removed from those of
CUPE
.
Federated seeks to re-litigate Mr.
    Cadieuxs status as an insured driver in the context of a private dispute
    between Federated and Intact over the obligation to pay Statutory Accident
    Benefits under a priority scheme designed to allocate the responsibility for
    those payments as among insurers.  While there is certainly a public interest
    in protecting the passengers right to Statutory Accident Benefits under the
Insurance
    Act
, there is little, if any, public interest in the determination of
    which of the two insurers involved in the proceeding should pay those benefits.

[48]

The arbitration proceeding is particularly well-suited to a
    determination of whether Mr. Cadieux was an insured driver at the relevant
    time.  Both Intact and Federated have the means and expertise to fully litigate
    the issue.  Both also have ready access to the information necessary to
    accurately determine whether the policy was properly cancelled.  In my view,
    determining Mr. Cadieuxs insurance status in the context of the arbitration
    between Intact and Federated is likely to enhance the credibility and the effectiveness
    of the adjudicative process as a whole:
CUPE
, at para. 52.

[49]

Realistically, I see no danger to the overall integrity of the adjudicative
    process flowing from a re-litigation of Mr. Cadieuxs insurance status in a
    private arbitration between Federated and Intact.  Even if that re-litigation were
    to produce a finding that is inconsistent with the finding underlying Mr.
    Cadieuxs conviction, that inconsistency would do little, if any, damage to the
    integrity of the process.  A balancing of systemic concerns that inevitably arise
    if re-litigation is permitted against fairness to the litigants, and in
    particular Federated, favours re-litigation in these circumstances.

V

conclusion

[50]

The preliminary motion before the arbitrator proceeded on the basis that
    Mr. Cadieux had been convicted of driving without insurance at the time of the
    accident.  Federated, as the party seeking to re-litigate Mr. Cadieuxs
    insurance status, had the onus of demonstrating that re-litigation would not,
    in the circumstances, amount to an abuse of process:
Bank of Montreal
,
    at para. 48; and
CUPE
, at para. 52.

[51]

In my view, fairness to Federated strongly dictates that it should have
    an opportunity to demonstrate that Mr. Cadieux was insured at the time of the
    accident.  Intact suffers no unfairness in allowing Federated that
    opportunity.  In addition, re-litigation of Mr. Cadieuxs insurance status in
    the context of the private arbitration between the insurers has no negative
    impact on the integrity of the overall adjudicative process and may in fact
    enhance that integrity by generating a more reliable result.  These factors
    combine to satisfy the onus on Federated to show that re-litigation would not
    constitute an abuse of process.

[52]

I would allow the appeal and restore the arbitrators order.  Federated
    should have its costs here and before the application judge.  In keeping with
    counsels comments at the end of oral argument, I would fix those costs at
    $15,000 for the appeal and an additional $7,000 for the hearing before the
    application judge, as agreed to by the parties, inclusive of disbursements and
    relevant taxes.  If I have misunderstood counsels comments, they should advise
    the court.

Released: DD  JAN 27 2017

Doherty J.A.

I agree J.C. MacPherson J.A.

I agree P. Lauwers J.A.

[1]

The parties did not file a Certificate of Conviction as
    contemplated by s. 22.1(3) of the Ontario
Evidence Act
, but instead filed a document referred to as an extended driver
    profile.  That document indicated that Mr. Cadieux was convicted of Operate
    Motor Vehicle No Insurance C.A.I.A.  Strictly speaking, the document does not
    appear to be evidence of anything.

[2]
Technically, it would appear that the prosecution could have proceeded under
    Part I of the
Provincial Offences Act
.  That part provides for a much
    less formal procedure, including convictions based entirely on an accuseds
    failure to defend the charge.  However, given the very significant minimum fine
    imposed for driving without insurance ($5,000), and the much lower maximum
    penalties available under Part I ($1,000), it is very unlikely that the
    prosecution would ever proceed with a charge of driving without insurance under
    Part I:  see
Provincial Offences Act
,
    s. 12.


COURT OF APPEAL FOR ONTARIO

CITATION:  LBP Holdings Ltd. v. Allied Nevada Gold
    Corporation, 2017 ONCA 13

DATE: 20170109

DOCKET: C62192

Doherty, Brown and Huscroft JJ.A.

BETWEEN

LBP Holdings Ltd.

Plaintiff (Appellant)

and

Allied Nevada Gold Corporation, Scott A.
    Caldwell, Robert M. Buchan,
Dundee Securities Ltd.
and
Cormark Securities Inc.

Defendants (Respondents)

Matthew M.A. Stroh, for the appellant

Gillian B. Dingle, for the respondents

Heard:  December 21, 2016

On appeal from the order of Justice Edward P. Belobaba of
    the Superior Court of Justice, dated May 11, 2016, with reasons reported at
    2016 ONSC 1629.

APPEAL BOOK ENDORSEMENT

[1]

We are advised that the matter has settled.  Order to go per draft order
    filed dismissing the appeal with no costs.


COURT OF APPEAL FOR ONTARIO

CITATION: Mariner Foods Ltd. v. Leo-Progress Enterprises
    Inc., 2017 ONCA 7 DATE: 20170105

DOCKET: C61380

Sharpe, Lauwers and Miller JJ.A.

BETWEEN

Mariner Foods Ltd.

Plaintiff/Respondent

and

Leo-Progress Enterprises Inc.

Appellant/Defendant

Shahzad Siddiqui, for the appellant

Assunta Mazzotta, for the respondent

Heard: December 23, 2016

On appeal from the order of Justice Stewart of the Superior
    Court of Justice, dated November 6, 2015.

APPEAL BOOK ENDORSEMENT

[1]

The appellant moves to admit fresh evidence that the respondent was
    under administration in the UK after the date of the statement of claim and in
    liquidation after the date of the judgment.

[2]

The appellant submits that the fresh evidence demonstrates that the
    respondent was not entitled to pursue the claim.

[3]

In our view, it is sufficiently clear from the exhibits to an affidavit
    filed in support of the motion for summary judgment that this was a subrogated
    claim brought by the respondents credit insurer. The claim was accordingly not
    caught by the bankruptcy.
Douglas v. Stan Fergusson Fuels Ltd.
, 2016
    ONSC 442.

[4]

The fresh evidence is therefore not capable of affecting the outcome and
    the application to admit it is dismissed. There is no other ground of appeal
    and the appeal is therefore dismissed.

[5]

Costs to the respondent fixed at $5,000, inclusive of disbursements and
    taxes.