COURT OF APPEAL FOR ONTARIO

CITATION: De Melo v. De Melo, 2015 ONCA 598

DATE: 20150904

DOCKET: C59650

Cronk, Lauwers and van Rensburg JJ.A.

BETWEEN

Donny De Melo

Appellant

and

Erin De Melo

Respondent

Donny De Melo, in person

Walter Drescher, for the respondent

Linda Feldman, for the Office of the Childrens Lawyer

Heard: August 31, 2015

On appeal from the judgment of Justice Harrison S. Arrell
    of the Superior Court of Justice, dated October 24, 2014, and the costs order
    of Justice Arrell, dated December 2, 2014.

ENDORSEMENT

[1]

The parties married in 1999 and separated in 2011.  There are two
    children of the marriage, now 15 and 13 years of age.

[2]

By summary judgment dated October 24, 2014, H. Arrell J. of the Superior
    Court of Justice granted sole custody of the two children of the marriage to
    the respondent mother and access to the appellant father at the discretion of
    the children, based on their initiation, among other relief.  By further order
    dated December 2, 2014, the motion judge also awarded costs to the mother in
    the amount of $20,000, inclusive of disbursements and taxes.

[3]

The father, a self-represented litigant, appeals to this court from the
    motion judges rulings on custody and access.  He raises several grounds of
    appeal.

[4]

First, the father challenges the timing of the mothers summary judgment
    motion.  He argues that the motion should not have proceeded since, when the
    motion was brought in September 2014, the matrimonial action between the
    parties had already been placed on the trial list and scheduled for hearing in
    January 2015.

[5]

We disagree.  Under rule 16(1) of the
Family Law Rules
, O. Reg.
    114/99, a motion for summary judgment may be brought in an action at any time
    after the respondent has served an answer or the time for serving an answer has
    expired.   That is what occurred here.  In this case, the mother had served an
    answer and, by consent order of the motion judge, the divorce claim was severed
    from the action.

[6]

Further, contrary to the fathers submissions, there is no strict legal
    requirement that a motion for summary judgment be brought only before the
    conduct of a settlement or trial management conference.  Nor did the mothers
    motion seek to alter the existing
status quo
regarding custody and
    access.  The children had resided with their mother on a full-time basis and
    had elected not to exercise their right of access to their father since the
    date of separation  a period of approximately three years.  The relief sought
    by the mother, therefore, sought to maintain, rather than alter, the
status
    quo
.

[7]

Second, the father submits that the motion judge erred in law by placing
    the onus on him to demonstrate that there was a genuine issue requiring a
    trial.

[8]

Again, we disagree.  The motion judges reasons indicate that he was
    satisfied that the mother had met her obligation under rule 16(4) to
    demonstrate that there was no genuine issue requiring a trial in respect of
    custody or access.  The father was obliged to respond to the mothers motion by
    providing evidence of specific facts showing that there was a genuine issue for
    trial: rule 16(4.1).  The motion judge concluded that the father failed to meet
    his evidentiary burden.  Indeed, he held that [t]he evidence is overwhelming
    that there is no genuine issue for trial.  The outcome of such a trial [on
    custody and access] is a certainty  .

[9]

This conclusion was open to the motion judge on the evidence, including the
    mothers affidavit evidence, the affidavit evidence of John Butt  a clinical
    investigator with the Office of the Childrens Lawyer  and reports authored by
    Lourdes Geraldo  a reconciliation therapist  regarding the childrens
    circumstances, needs and preferences.  Relying on this evidence, the motion judge
    applied the principles established in
Hryniak v. Mauldin
, 2014 SCC 7,
    [2014] 1 S.C.R. 87 and concluded that he was able to make a fair and just
    determination of the custody and access issues without resort to a trial.  He
    did not err in so concluding.

[10]

Third,
    the father contends that the motion judge erred by failing to address the
    applicable criteria for determining the best interests of the children.  In a
    related argument, he also maintains that the motion judge erred by failing to
    review all the relevant evidence concerning the childrens best interests.  The
    father points particularly to evidence that he says established aggressive and
    assaultive conduct by the mother, alleged efforts by her to alienate the
    children, and asserted ineffectiveness and wrongful conduct by Ms. Geraldo, the
    reconciliation therapist.

[11]

The
    motion judges reasons belie these contentions.  They demonstrate that, in
    assessing the merits of the parties positions on custody and access, the
    motion judge considered the evidence of the needs and circumstances of the
    children in accordance with the factors described in s. 24(2) of the
Childrens
    Law Reform Act
, R.S.O. 1990, c. C-12.  There is no basis to conclude that,
    in so doing, he failed to consider any material evidence.  For example, he took
    account of the evidence of the parties, Mr. Butt and Ms. Geraldo regarding:

1)

the
    mothers primary parenting role since separation;

2)

the
    childrens current circumstances, needs, progress and emotional well-being;

3)

the
    childrens wishes and preferences, namely, their consistently expressed desire
    for the custodial arrangements with their mother to continue;

4)

the
    need to accord considerable weight to the wishes of these teenaged children;
    and

5)

the
    fathers claim that the mother had alienated the children from him and the
    childrens advice to the contrary, namely, that their mother has always
    encouraged their contact with their father.

[12]

The
    motion judge recognized, correctly, that this is a high conflict matrimonial
    case; that joint custody is not appropriate in such cases except in exceptional
    circumstances; that such exceptional circumstances did not exist here, where
    the parties have no effective communication; that the ages of the children (15
    and 13 years of age) and the custodial arrangements since separation strongly
    militated in favour of an award of custody to the mother; and that court-constructed
    access arrangements should not be imposed on teenaged children who have
    repeatedly confirmed that they do not wish contact with the non-custodial
    parent and that they wish to maintain existing custodial and access
    arrangements.

[13]

Having
    considered the relevant evidence, the motion judge concluded that it was in the
    best interests of the children that sole custody be granted to the mother and
    that forcing access with the father against the wishes of the children would
    be counterproductive, detrimental to their emotional well being and likely
    futile in any event.

[14]

The
    evidence overwhelmingly supported these conclusions.  With respect to the issue
    of access, we note that the childrens opposition to court-ordered access was
    rooted in their own experiences with their father.  They made it clear that
    they do not wish to see their father at the present time and they wish no
    further involvement in litigation or court-ordered interventions.  The evidence
    established that the children are of sufficient age and maturity so as to
    warrant judicial respect for their positions on these matters.

[15]

During
    oral argument, the father also challenged the motion judges failure to award
    him spousal support from the mother.  On the record before us, it does not appear
    that the issue of spousal support was properly before or fully argued before
    the motion judge.

[16]

Finally,
    the father also seeks to appeal from the motion judges costs award in favour
    of the mother.  Although the father did not formally seek leave to appeal from
    the challenged costs award on a proper or timely basis, we have nevertheless
    considered his various grounds of attack on this award.  The motion judges
    assessment of costs is a highly discretionary decision that attracts
    considerable deference from this court.  As we are not persuaded that his costs
    award is either plainly wrong or tainted by an error in principle, there is no
    basis for appellate interference with it.

[17]

For
    the reasons given, the appeal is dismissed.  The respondent mother is entitled
    to her costs of the appeal, fixed in the amount of $5,000, inclusive of
    disbursements and applicable taxes.  No costs are sought by or awarded in favour
    of the Office of the Childrens Lawyer.

E.A. Cronk J.A.

P. Lauwers J.A.

K. van Rensburg J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Dube v. RBC Life Insurance Company, 2015 ONCA 641

DATE: 20150921

DOCKET: C60100

Laskin, MacPherson and MacFarland JJ.A.

BETWEEN

Gregory Russell Dube

Plaintiff (Respondent)

and

RBC Life Insurance Company

Defendant (Appellant)

Donna M. Kraft, for the appellant

Ryan Steiner, for the respondent

Heard: September 16, 2015

On appeal from the judgment of Justice Marc A. Garson of
    the Superior Court of Justice, dated January 7, 2015.

By
    the Court:

A.

Introduction

[1]

The respondent Dube worked for Windsor Essex Community Housing
    Corporation. In May 2010 he was injured in a car accident, and since then has
    not returned to work. His employer had a group insurance policy with the
    appellant RBC Life Insurance, which provided employees with long term
    disability benefits.

[2]

Dube, however, did not give notice or proof of his claim for these
    benefits within the time limits under the policy. When RBC denied his claim,
    Dube started this action.

[3]

RBC then brought a motion for summary judgment to dismiss the action on
    the ground that Dubes claim was made beyond the policys time limits. The
    motion judge refused to dismiss the action. Instead, he exercised his
    discretion by making a binding determination that Dube was entitled to relief
    from the forfeiture of his claim under s. 98 of the
Courts of Justice Act
.

[4]

RBC appeals that determination. It concedes that the motion judge could
    determine on summary judgment whether Dube was entitled to this relief, but
    contends that the motion judge erred in granting it. RBCs appeal thus raises a
    single issue: did the motion judge exercise his discretion unreasonably in his
    application of the three-part test for relief from forfeiture under s. 98? In
    oral argument RBC focused on the second component of the test, the gravity of
    Dubes breach of the policy time limits.

B.

Discussion

(1)

The test for relief from forfeiture

[5]

Under the policy Dube ought to have given notice of his claim within 30
    days of his alleged disability (the date of the accident) and proof of his
    claim no later than one year and 90 days after his disability arose. Dube did
    not give any notice of his claim until March 2012, and did not give proof of
    his claim until June 2013.

[6]

Thus the central issue on the motion was whether Dube was entitled to
    relief from forfeiture under s. 98 of the
Courts of Justice Act
, which
    states:

A court may grant relief against
    penalties and forfeitures, on such terms as to compensation or otherwise as are
    considered just.

The relief under s. 98 is both
    equitable and discretionary. The test for relief is well established. It has
    three components. The court must consider:

-

the conduct of the insured applicant

-

the gravity of the breach

-

the disparity between the value of the property
    forfeited and the damage caused by the breach, see:
Saskatchewan River
    Bungalows Ltd. v. Maritime Life Assurance Co.
, [1994] 2 S.C.R. 490.

(2)

The motion judges decision

[7]

On the first component of the test the motion
    judge found that Dubes conduct was not unreasonable. In support of that
    finding, the motion judge noted that Dubes employer had incorrectly told him
    he did not have coverage for long term disability benefits; that Dube was
    confused or uncertain whether he had this coverage; and that he had complied
    with numerous requests to provide medical information.

[8]

On the second component of the test, the motion
    judge found that RBC suffered minimal or no actual prejudice because of the
    breach.

[9]

On the third component of the test, the motion
    judge found that because Dube was 43 years old when the accident occurred and
    long term disability benefits were payable to age 65, the disparity between the
    value of the property forfeited and the damage caused by the breach was
    significant.

(3)

Did the motion judge misapply the
    second component of the test for relief from forfeiture  the gravity of the
    breach

[10]

RBC accepts that the motion judge stated the
    test for relief correctly. But it submits that he misapplied the second
    component of the test, in that he failed to properly assess the gravity of the
    breach. RBCs submission has two branches: the motion judge erred by finding
    that the length of the breach was only six months and 17 days; and he erred in
    finding that the actual prejudice to RBC flowing from the breach was minimal or
    non-existent. RBC maintains that it was prejudiced because of its inability to
    intervene and make its own assessment of Dubes condition and his prospects for
    rehabilitation.

[11]

We agree that the motion judge misstated the
    length of the breach. His figure of six months and 17 days refers to the period
    between the last possible date proof of claim could be given (August 2011) and
    the date Dube first gave notice of his claim (March 2012). As RBC points out,
    the length of the breach for giving proof of claim was about 22 months (August 2011
    to June 2013).

[12]

But the critical question on this component of
    the test is whether RBC was prejudiced by the length of the breach. We are
    satisfied that the motion judge did not err in finding that the prejudice to
    RBC was minimal. Or, as he found later in his reasons, even if RBC incurred
    some prejudice because it could not conduct its own investigations and medical
    examinations at an early date, that prejudice was outweighed by the harm to
    Dube from his being unable to pursue his claim.

[13]

The following evidence supports the motion
    judges findings:

(a)

In March 2012 when Dube gave notice of his
    claim, he asked RBC for information concerning his claim, including the
    application form for long term disability benefits. RBC took over one year to
    provide this information.

(b)

RBC had available to it an abundance of medical
    information on Dube from the date of his accident. This information included a
    comprehensive list of the many medical files and reports on Dube, all of which
    were available for RBCs review. And it included an extensive medical brief
    containing reports from two physiatrists, one retained by Dubes accident
    benefit insurer, and the other retained by Dubes family doctor, and a report
    from an occupational therapist.

(c)

After RBC was given notice of the claim in March
    2012, in the following two and a half years it made no requests  none  to
    examine Dube or to have him assessed.

[14]

In the light of this evidence RBC cannot
    realistically claim it was prejudiced by Dubes failure to give timely notice
    and proof of his claim. We therefore conclude that the motion judge exercised
    his discretion reasonably in granting Dube relief from forfeiture. The appeal
    is dismissed with costs fixed at $12,000 inclusive of disbursements and
    applicable taxes.

Released: September 21, 2015 (J.L.)

John Laskin J.A.

J.C.
    MacPherson J.A.

J. MacFarland
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Durham Condominium Corporation No. 45 v. Swan, 2015 ONCA 590

DATE: 20150901

DOCKET: C59938

Doherty, Pepall and Huscroft JJ.A.

BETWEEN

Durham Condominium Corporation No. 45

Applicant

(Respondent)

and

Leslie Arthur Swan

Respondent

(Appellant)

Howard Wright, for the appellant

Timothy Duggan, for the respondent

Heard:  July 2, 2015

On appeal from the order of Justice Alexander Sosna of
    the Superior Court of Justice, dated January 18, 2013.

ENDORSEMENT

I

[1]

The appellant is a unit owner in and a former director of the respondent
    condominium corporation. He appeals, with leave, from a costs order made
    against him in the context of an application brought against him by the
    respondent.

[2]

The respondent sought costs on a full indemnity basis in the amount of
    $198,880.92, or on a partial indemnity basis in the amount of $126,855.22. The
    appellant asserted that he was indemnified against costs and submitted that none
    should be ordered. The application judge, Sosna J., ordered the appellant to
    pay costs of $45,000 to the respondent on a partial indemnity scale, inclusive
    of taxes and disbursements.

[3]

For the reasons that follow, we would allow the appeal and return the
    matter to the application judge for reassessment in accordance with the
    instructions set out below.

II

[4]

The respondent brought an application seeking the following orders under
    the
Courts of Justice Act
, R.S.O. 1990, c. C.43:

a)

A declaration that the appellant is a vexatious litigant;

b)

A declaration that the respondents Board of Directors has the authority
    to enter into contracts for third party management of the condominium;

c)

A declaration that the present property management
    company contract with MCD Enterprises (MCD) is binding; and

d)

An injunction prohibiting the appellant from having any
    contact with the respondents Board of Directors, MCD, and its principal,
    Catherine Debbert
.

[5]

The respondent also sought the following relief under the
Condominium
    Act, 1998,
S.O. 1998, c. 19:

a)

A declaration finding that the appellant, as a
    Director with the condominium corporation, failed to carry out his duties and
    exercise the care and diligence required of that office; and

b)

An order that the appellant remove, at his
    expense, the satellite dish installed on the common elements appurtenant to his
    unit and to restore, at his expense, the common elements to the condition they
    were in prior to the installation of the satellite dish.

[6]

The appellant brought a cross-application in which he sought the
    following orders:

a)

A declaration that Tammy Goan and Letitia Wise
    breached their duty of care as Board members of the condominium corporation;

b)

The removal of Goan and Wise from the Board;

c)

His reinstatement as Director and President of
    the Board;

d)

The appointment of an interim Director pending a
    meeting to elect new Directors; and

e)

Return of all documents held by MCD to the condominium
    corporation.

[7]

The application judge dismissed the respondents application that the
    appellant be declared a vexatious litigant and denied its application for an
    injunction barring the appellant from having any contact with the board of
    directors, MCD and its principal, but made several findings against the
    appellant. He found that the respondents board of directors had the authority
    to enter into contracts for third party management of the condominium; that the
    property management contract entered into by the board with MCD Enterprises was
    binding; and that the appellant failed to exercise the care, diligence and
    skill that a reasonably prudent person would exercise in carrying out his
    duties as a director of the condominium.

[8]

The appellants cross-application was dismissed in its entirety.

[9]

The key issue in dispute is whether the appellant is entitled to be
    indemnified for the costs and expenses he has incurred in the litigation. The
    relevant provisions of the
Condominium Act
provide as follows:

37. (1) Every director and every officer of a
    corporation in exercising the powers and discharging the duties of office shall,

(a) act honestly and in good
    faith; and

(b) exercise the care, diligence
    and skill that a reasonably prudent person would exercise in comparable
    circumstances.  1998, c. 19, s. 37 (1).

38. (1) Subject to subsection (2),
    the by-laws of a corporation may provide that every director and every officer
    of the corporation and the persons heirs, executors, administrators, estate
    trustees and other legal personal representatives may from time to time be
    indemnified and saved harmless by the corporation from and against,

(a) any liability and all costs,
    charges and expenses that the director or officer sustains or incurs in respect
    of any action, suit or proceeding that is proposed or commenced against the
    person for or in respect of anything that the person has done, omitted to do or
    permitted in respect of the execution of the duties of office; and

(b) all other costs, charges and
    expenses that the person sustains or incurs in respect of the affairs of the
    corporation.  1998, c. 19, s. 38 (1).

(2) No director or officer of a
    corporation shall be indemnified by the corporation in respect of any
    liability, costs, charges or expenses that the person sustains or incurs in or
    about an action, suit or other proceeding as a result of which the person is
    adjudged to be in breach of the duty to act honestly and in good faith.
    1998, c. 19, s. 38 (2).

[10]

The
    respondent adopted By-law No. 1 in furtherance of the s. 38(1) authorization.
    Section VI(13) of this by-law provides as follows:

Every director or officer of the Corporation and his
    heirs, executors and administrators and estate and effects respectively, shall
    from time to time and at all times be indemnified and saved harmless out of the
    funds of the Corporation from and against:

a) all costs, charges and expenses whatsoever
    which such director or officer sustains or incurs in or about any action, suit
    or proceedings which is brought, commenced or prosecuted against him for or in
    respect of any act, deed, matter or thing whatsoever made, done or permitted by
    him in or about the execution of the duties of his office;

b) all other costs, charges and expenses which he
    properly sustains or incurs in or about or in relation to the affairs thereof;

except for dishonest or fraudulent act or acts.

[11]

The
    application judge criticized the appellants conduct. He found that the issues
    raised in the respondents application and the appellants cross-application
    were contentious largely because of the appellants numerous challenges to the
    law and facts, and rejected the appellants submission that he was a
    well-intentioned whistleblower as self-serving and groundless. The
    application judge found that the appellants inflexible and strident
    interpretation of the duties of the Board put the proper management of the
    condominium at risk, and that throughout he conducted himself in an
    inflexible, confrontational, dogmatic and counterproductive manner.

[12]

In
    the key passage concerning the availability of indemnification, the application
    judge stated, at para. 16 :

On these findings Swans submission that DCC 45 has the
    statutory and contractual duty to indemnify him for his costs pursuant to
    Section 37(1)(a) of the
Condominium Act
because as a Director, he
    acted honestly and in good faith is dismissed. This submission fails to
    recognize this courts findings that Swan as a Director failed to exercise the
    care, due diligence and skill that a reasonably prudent person would exercise
    in comparable circumstances. Given Swans confrontational inflexibility and
    misguided assessment of his duties as Director, Swan failed to meet this
    standard and rendered the Board dysfunctional.

[13]

In
    this court, the appellant argues that he enjoyed full indemnity and that his
    claim to indemnification should not have been rejected. The respondent argues
    that the application judge correctly concluded that the appellant had breached
    s. 37(1) of the
Condominium Act
as a whole. Alternatively, the
    respondent submits that indemnification is available only if a director is
    properly carrying out the business of the condominium in the execution of his
    obligations as a director, and the appellant was not doing so. The respondent submits,
    further, that indemnification is not available for an action brought by the
    appellant.

[14]

This
    court is at a significant disadvantage in dealing with this matter. Neither
    party in this case took out a judgment following the application judges
    decision, and during oral argument there was considerable uncertainty as to
    nature of the judgment that would have issued.

[15]

Nor
    is it clear how the application judge set the figure of $45,000, or what that
    figure covers. Neither the judges reasons nor the parties costs submissions indicate
    how much of this amount is attributable to the respondents application or the
    appellants cross-application.

[16]

The
    main difficulty, however, is that the application judges decision on the
    applicability of the indemnity provided by the respondents by-law is
    ambiguous. It is not clear whether the application judge made a finding of bad
    faith, negligence, or both. The two matters appear to have been conflated.  Although
    the application judge clearly finds that the appellant failed to comply with s.
    37 of the Act, (para. 46 of his reasons for judgment), it is not clear whether this
    conclusion was triggered by s. 37(1)(b) or s. 37 (1)(a) and (b).

[17]

If
    the appellant were found to have acted in bad faith  dishonestly or
    fraudulently, in the language of the by-law  he would be disentitled to the
    protection of the indemnity (in so far as it otherwise applies). By contrast, a
    finding of negligence alone would mean that the appellant was protected by the
    indemnity (again, in so far as it otherwise applies).

[18]

The
    appellant invited this court to substitute an alternative costs award, but it
    is not possible to do so on the information before the court. Accordingly, the
    appeal is allowed and the costs order is set aside. The matter is remitted to
    the application judge to determine the following:

1.

the applicability of s. 37(1)(a) and (b) of the Act and the by-law to
    the facts of this case;

2.

whether, and the extent to which, the indemnity applies;

3.

the quantum of costs and expenses, if any, covered by the indemnity; and

4.

the breakdown of the costs as between the application and the
    cross-application.

[19]

The
    appellant is entitled to costs on this appeal of $6,000, inclusive of taxes and
    disbursements, regardless of the outcome of the case before the application
    judge. Should the application judge determine the appellant is entitled to
    indemnification for the costs of this appeal on a dollar for dollar basis, this
    amount ($6,000) will be deducted (assuming it has been paid by the respondent).
    Should costs be awarded to the respondent, the costs payable to the appellant
    on this appeal ($6,000) will be set off against the costs awarded by the
    application judge.

Doherty J.A.

S.E. Pepall J.A.

Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: El Ghafari v. Treehuba, 2015 ONCA 594

DATE: 20150901

DOCKET: C58161

Feldman, Simmons and Miller JJ.A.

BETWEEN

Michael El Ghafari

Appellant (Plaintiff)

and

Kathleen Treehuba

Respondent (Defendant)

Karl Arvai, for the appellant

Robert W. Weisser, for the respondent

Heard: August 26, 2015

On appeal from the judgment of Justice Peter B. Hockin of
    the Superior Court of Justice, dated November 25, 2013.

APPEAL BOOK ENDORSEMENT

[1]

The appellant asks the Court to set aside the jury verdict apportioning
    liability 90% to the appellant and 10% to the respondent.  The test for setting
    aside a jury verdict is very rigorous; see
F.C. (Guardian of) v. 511825 Ontario
    Inc.
, 171 O.A.C. 119, 2003 CanLII 9990 (ON CA) at para. 44, where Cronk
    J.A. states:

The verdict of a jury in a civil case will not be set aside as
    against the weight of evidence unless it is so plainly unreasonable and unjust
    as to satisfy the appellant court that no jury, reviewing the evidence as a
    whole and acting judicially, could have reached it.

We cannot say that the apportionment decision is so
    plainly unreasonable or unjust that it must be set aside.

[2]

The appeal is therefore dismissed with costs fixed at $8,000 inclusive
    of disbursements and HST.


COURT OF APPEAL FOR ONTARIO

CITATION: Foster v. Toronto (City), 2015 ONCA 620

DATE: 20150914

DOCKET: C59593

Gillese, Pepall and Lauwers JJ.A.

BETWEEN

Lori Lee Foster

Plaintiff (Appellant)

and

City of Toronto

Defendant (Respondent)

Lori Lee Foster, acting in person

Michelle Brady, for the respondent

Heard: September 11, 2015

On appeal from the judgment of Justice Paul Perell of the
    Superior Court of Justice, dated October 14, 2015.

APPEAL BOOK ENDORSEMENT

[1]

Ms. Foster lived in a number of homeless shelters between 2002 and 2010.
    In this action, she alleges that her application for subsidized housing was
    mishandled because it did not note her status as a victim of abuse. She contends
    that had her application been properly handled, she would have obtained
    permanent housing earlier.

[2]

The City moved for summary judgment. The motion was granted on two
    bases. The first is that there was no genuine issue for trial. The second is
    related to the alleged expiration of the limitation period.

[3]

We agree with the motion judge that the claim discloses no reasonable
    cause of action and dismiss the appeal on that basis. The City was not
    directly, indirectly or vicariously responsible for the staff against whom Ms.
    Foster claimed. While the City provides funding to those shelters, they are
    independently operated and managed. Accordingly, it is unnecessary for this
    court to address the limitation period issue.

[4]

The appeal is dismissed. No costs order.


COURT OF APPEAL FOR ONTARIO

CITATION: Frank v. Legate, 2015 ONCA 631

DATE: 20150918

DOCKET: C59283

Lauwers, Hourigan and Pardu JJ.A.

BETWEEN

Cathy Frank

Plaintiff (Appellant)

and

Barbara
    Legate, Joni Dobson, Keith Finley and Legate & Associates LLP

Defendants (Respondents)

Nathaniel Erskine-Smith, for the appellant

Paul Michell, for the respondents

Heard:  March 5, 2015

On appeal from the order of Justice Thomas J. Carey of the
    Superior Court of Justice, dated August 5, 2014.

Hourigan J.A.:

INTRODUCTION

[1]

Cathy Frank appeals from the order of Carey J.
    striking her statement of claim under rule 21.01 of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194, on the ground that it did not disclose a
    reasonable cause of action.

[2]

The appellant submits that the motion judge
    erred by effectively turning the pleadings motion into a summary judgment
    motion and thereby applied the wrong test in his review of her statement of
    claim.

[3]

For the reasons that follow, I would dismiss the
    appeal. The appellants action was fundamentally misconceived. I see no error
    in the motion judges conclusion that the causes of action advanced by the
    appellant were either premature or were not properly pleaded. Regardless, the
    appellants claim was also an abuse of process and could have been struck on
    that basis.

BACKGROUND FACTS

[4]

The appellant is an obstetrician and gynecologist
    who practices medicine in London, Ontario.

[5]

The respondents are lawyers who represent the
    appellants former patients in complaints with the College of Physicians and
    Surgeons of Ontario (the College) and medical malpractice actions against the
    appellant.

[6]

The appellants statement of claim alleged that certain
    statements by the respondents, six of which were published on the website of
    the respondents law firm and one of which was published in an article on the
    CTV news website, were defamatory. Those statements are set forth below.

[7]

In addition to the defamation claim, the
    appellant also asserted claims for malicious prosecution, champerty and
    maintenance, intentional interference with economic relations and intentional
    infliction of mental distress. She claimed $5 million in damages, including $500,000
    in punitive damages.

[8]

The respondents brought a motion to strike the
    appellants statement of claim under Rule 21 on the basis that it failed to
    disclose a reasonable cause of action. In their notice of motion they also
    sought to strike the claim under rule 25.11 on the ground that it was
    scandalous, frivolous, vexatious and an abuse of process. Prior to the motion,
    the appellant delivered a proposed amended statement of claim to the
    respondents. The appellant did not bring a motion to amend the original
    statement of claim.

THE DECSION BELOW

[9]

The motion judge struck the appellants claim in
    its entirety. In his reasons, he considered each of the causes of action
    asserted by the appellant.

[10]

With respect to the defamation claim, the motion
    judge noted that courts will only strike defamation pleadings in the clearest
    of cases. He described his task as determining whether an ordinary,
    thoughtful, well-informed member of society would reasonably conclude that the
    words complained of were capable of conveying a defamatory meaning. None of the
    impugned statements met this standard. The first five were purely informational
    and expressed no view on the merits of any of the claims against the appellant.
    The sixth statement was appropriately qualified by the words we allege. The
    seventh and final statement again did not comment on the merits of any claims
    against the appellant.

[11]

The motion judge found that the malicious
    prosecution action was premature because none of the lawsuits or complaints to
    the College had yet been terminated or resolved. The appellants statement of
    claim alleged that all the cases and complaints had, or will be resolved in her
    favour. While the motion judge recognized that he was required to accept the
    appellants allegations as true unless they were not provable, he concluded that
    the question of whether the complaints and actions would terminate in the
    appellants favour was not yet provable.

[12]

Given that the lawsuits against the appellant were
    ongoing, the claim for champerty and maintenance was also premature.
    Regardless, the factual allegations in the statement of claim did not support
    these causes of action. The appellant did not plead that the respondents
    stirred up litigation that would not otherwise have been pursued or that they
    brought baseless claims as a form of intimidation.

[13]

On the claim of intentional interference with
    economic relations, the motion judge noted that this cause of action permits a
    plaintiff to sue a defendant for economic loss caused by the defendants
    unlawful act against a third party where the defendant intended to damage the
    plaintiff. The motion judge concluded that the appellants pleadings were
    unspecified and did not suggest that the elements of this tort were met.
    Further, the alleged unlawful act appeared to be that the respondents made
    misrepresentations to the appellants former patients. These communications are
    protected by solicitor-client privilege. As a result, this claim was also
    struck under rule 25.11 since it relied on inadmissible evidence.

[14]

The motion judge concluded that the appellant
    failed to particularize the conduct giving rise to her claim for intentional infliction
    of mental distress. He noted that a defendant reading the statement of claim
    would not know what conduct was at issue in relation to this claim.

[15]

On the claim for punitive damages, the motion
    judge found that the appellants allegation that the respondents conduct was a
    callous, flagrant, arbitrary, malicious, high-handed, capricious, arrogant and
    complete and flagrant disregard of the rights of the plaintiff and of the
    plaintiffs patients did not particularize any conduct that could give rise to
    this type of award.

[16]

The motion judge went on to consider the putative
    amended statement of claim and concluded that the proposed amendments did not
    remedy any of the defects in the issued claim.

[17]

Finally, the motion judge noted that absent
    further substantial, specific allegations, any continued action against the
    respondents ran the risk of being seen as an abuse of process. He found that the
    claims would likely be viewed as a collateral attack aimed at intimidating and
    distracting the respondents.

[18]

Quite unusually, the motion judge did not
    consider the issue of whether the appellant should be granted leave to amend
    her statement of claim. The appellant does not seek that relief in her notice
    of appeal or factum.

POSITIONS OF THE PARTIES

(i)

Position of the Appellant

[19]

The appellant submits that a defamation claim
    should only be struck on a Rule 21 motion where the impugned statements are
    clearly not capable of a defamatory meaning. The statements at issue in this
    case do not fall within the clearest of cases. She argues that the motion judge
    also erred by suggesting that the defamatory statements pleaded in the proposed
    amended statement of claim could not support an allegation of defamation.

[20]

The appellant argues that the tort of malicious
    prosecution applies to civil actions and disciplinary proceedings. The
    motion judge was required to assume that the facts pleaded in the statement of
    claim were true. Given that the statement of claim stated that all proceedings
    have, or will, terminate in the appellants favour, the motion judge erred in
    finding that no proceedings had terminated in her favour and in relying on a
    representation by counsel for the respondents regarding the current status of
    the actions and complaints in reaching that conclusion.

[21]

Regarding the claim for champerty and
    maintenance, the appellant submits that the elements were properly pleaded and that
    the motion judge erred by failing to read the pleadings broadly.

[22]

With respect to the intentional interference
    with economic relations claim, the appellant pleaded that the respondents made
    misrepresentations to induce the appellants former patients to pursue claims
    against the appellant. Because the misrepresentations were public statements, the
    motion judges finding that the alleged misrepresentations were protected by
    privilege was an error.

[23]

The appellant also submits that the motion judge
    erred by dismissing her claim for intentional infliction of mental distress on the
    ground that the statement of claim did not particularize the comments or
    actions. The motion judge should have read the pleadings as a whole, rather
    than focusing solely on one paragraph.

[24]

Finally, the appellant argues that the motion
    judge erred by relying on a breach of contract case to conclude that the
    appellants statement of claim for punitive damages did not sufficiently
    particularize her claim. The causes of action advanced by the appellant are
    significantly more egregious than a breach of contract claim. Consequently, the
    claim for punitive damages in the present case does not require the same level
    of detail as a breach of contract case. The appellant submits that the general
    reference to conduct pleaded elsewhere in the statement of claim was sufficient.

(ii)

Position of the Respondents

[25]

The respondents submit that the motion judge
    correctly concluded that the statements attacked by the appellant are not
    capable of bearing a defamatory meaning. In a defamation action, the statement
    of claim must identify each alleged defamatory statement specifically, as well
    as who made the statement, when it was made and to whom. The appellants
    statement of claim did not comply with these requirements.

[26]

With regard to the proposed amended statement of
    claim, the appellant did not take steps to have it issued, nor did she seek
    leave to amend the existing statement of claim. As a result, the motion judge
    did not have jurisdiction to rule on the proposed amended statement of claim.
    To the extent that he expressed his opinion regarding its contents, this had no
    legal effect and is thus irrelevant to this appeal.

[27]

The respondents submit that the tort of
    malicious prosecution is unavailable in the circumstances because it only
    applies to criminal prosecutions where the proceedings have terminated in the
    plaintiffs favour.

[28]

The respondents argue that complaints to the
    College cannot give rise to a claim for champerty, since they do not constitute
    litigation where damages are sought. As for the civil proceedings, champerty and
    maintenance are only actionable if the plaintiff has suffered special damages.
    Since the civil proceedings against the appellant have not concluded, the
    appellant has not suffered any damages and this claim is premature.

[29]

The respondents argue that to succeed on a claim
    of intentional interference with economic relations, a plaintiff must show that
    the defendant intended to cause loss to the plaintiff as an end in itself or as
    a means of enriching itself. The appellants statement of claim does not
    satisfy this test and does not identify what unlawful means were used by the
    respondents. In addition, the claim will necessarily require evidence regarding
    the communications between the respondents and their clients, which are
    protected by solicitor-client privilege.

[30]

The respondents argue that the motion judge
    correctly concluded the appellants pleadings did not particularize the conduct
    that she alleged gave rise to an intentional infliction of mental distress
    claim.

[31]

Regarding the punitive damage claim, the
    respondents submit that the motion judge correctly concluded that the
    appellants pleading did not identify the facts giving rise to the claim for
    punitive damages with sufficient particularity. The general reference to
    aforesaid conduct was insufficient.

[32]

Finally, the respondents raise an additional
    issue. They submit that the appellants statement of claim was a collateral
    attack on ongoing proceedings before the courts and the College. Consequently,
    they argue that it was open to the motion judge to strike the statement of
    claim in its entirety as an abuse of process.

ISSUES

[33]

This appeal raises the following issues:

·

Did the motion judge err in striking the
    appellants claim for defamation?

·

Did the motion judge err by
    striking the appellants claim for malicious prosecution?

·

Did the motion judge err by
    striking the appellants claim for champerty and maintenance?

·

Did the motion judge err by
    striking the appellants claim for intentional interference with economic
    relations?

·

Did the motion judge err by
    striking the appellants claim for intentional infliction of mental distress?

·

Did the motion judge err by striking
    the appellants claim for punitive damages?

·

Should the claim be dismissed as
    an abuse of process?

ANALYSIS

(i)      General Principles

[34]

Before turning to a review of the causes of
    action pleaded in this case, it is useful to have regard to three important legal
    principles that govern on this appeal.

[35]

The first principle is the standard of review.
    There is no issue between the parties, and I agree, that the motion judge was
    engaged in a purely legal analysis. Therefore, the standard of review is
    correctness:
Housen v. Nikolaisen
, 2002 SCC 33, 2 S.C.R. 235, at para.
    36.

[36]

The second principle is the governing test on a
    motion to strike a pleading under rule 21.01(1)(b) for disclosing no reasonable
    cause of action. The parameters of the test are well established in the case
    law. A claim should only be struck under this rule if it is plain and obvious
    that there is no reasonable prospect it can succeed:
Hunt v. Carey Canada
    Inc
.
, [1990] 2 S.C.R. 959, at p. 980;
Guergis v. Novak
,
    2013 ONCA 449, 116 O.R. (3d) 280 (C.A.), at para. 34. In undertaking that
    analysis, the motion judge must assume the allegations of fact in the statement
    of claim are true, unless they are patently ridiculous or incapable of proof:
McCreight
    v. Canada (Attorney General)
, 2013 ONCA 483, 116 O.R. (3d) 429, at para.
    29. The motion judge must also read the statement of claim as generously as
    possible, with a view to accommodating any inadequacies in the pleading:
R.
    v. Imperial Tobacco Canada Ltd
., 2011 SCC 42, [2011] 3 S.C.R. 45, at
    paras. 17-22.

[37]

Third, the court has discretion under rule 25.11
    to strike a pleading that may prejudice or delay the fair trial of an action or
    that is scandalous, frivolous, vexatious, or an abuse of process.

[38]

With these principles in mind, I turn to an
    analysis of each of the causes of action asserted in the statement of claim and
    a consideration of the respondents submission that the claim should be struck
    as an abuse of process.

(ii)
    Defamation

[39]

In
Grant v. Torstar Corp
.
, 2009
    SCC 61, [2009] 3 S.C.R. 640, at para. 28, the Supreme Court of Canada held that
    a plaintiff must prove the following three elements in a defamation action: 1)
    the defendant made a defamatory statement, in the sense that the impugned words
    would tend to lower the plaintiffs reputation in the eyes of a reasonable
    person; 2) the words in fact referred to the plaintiff; and 3) the words were
    communicated to at least one person other than the plaintiff.

[40]

A reasonable person in this context is one who
    is reasonably thoughtful and informed, who would understand the difference
    between allegations and proof of guilt. Such a person would keep in mind that
    an accused person is presumed innocent until proven guilty:
Guergis
, at
    paras. 38 and 57;
Miguna v. Toronto (City) Police Services Board
,
[2004] O.J. No. 2455 (S.C.), at paras. 4-6, affd [2005] O.J. No. 107 (C.A.).

[41]

Courts will only grant a motion by a defendant
    to strike a pleading on the basis that the statement at issue is incapable of a
    defamatory meaning in the clearest of cases. If this standard is not met, determination
    of the issue will be left to the trier of fact at trial:
Guergis
, at
    para. 41.

[42]

The statements in issues are as follows:

(i) There
    are over 100 former patients of Dr. Frank who contacted Legate & Associates
    about her treatment. Legate & Associates has issued 58 claims in the
    Superior Court of Justice to date. Several more cases are under investigation.

(ii) It is
    expected that many more lawsuits will be issued.

(iii)
    [S]ince releasing the details of lawsuits undertaken on behalf of three women
    who were patients of Dr. Cathy Frank, over 90 women have come forward.

(iv) If
    you think you or your baby may have a claim against Dr. Frank, please contact
    Legate & Associates.

(v) Legate
    is pursuing the public review by the Discipline Committee instead of the
    secretive Complaints Committee process.

(vi)  [She]
    passed all of the exams but when [she] went out to practice, there was a
    problem  the unfortunate consequence of that, we allege, is that children have
    been born with disabilities that they wouldnt have otherwise had.

(vii) Over
    100 women contacted Legate & Associates about their treatment and that of
    their babies at the hands of Dr. Frank. Approximately 60 women have issued
    claims for themselves and several more actions are under investigation for
    compromised babies, and one has been commenced. These women have made
    complaints to the CPSO as far back as 2006 about Dr. Frank.

[43]

In my view, the motion judge correctly concluded
    that the seven impugned statements in the appellants statement of claim were clearly
    incapable of bearing a defamatory meaning.

[44]

Statements (i) to (iv) and (vii), quoted above,
    were purely informational and did not comment in any way on the merits of the
    ongoing litigation. The comments are neutral in their description of the
    appellant. References to the numerous women who have come forward are supported
    by the appellants own pleading, which indicates that 58 actions have been
    commenced against her. No reasonable person, who is taken to understand the difference
    between allegations and proof of guilt, could interpret these statements in the
    manner suggested by the appellant (i.e. as suggestive of her being negligent
    and/or incompetent as a physician).

[45]

The appellant effectively seeks to prohibit law
    firms from describing allegations that form the basis of potential or ongoing
    claims. If this type of statement amounted to defamation, no law firm in the
    province could ever solicit clients because they could not provide the
    necessary information for people to determine if they should consult a lawyer
    about a potential claim. The class action process, for example, would be
    effectively eviscerated if lawyers were restricted in their communications in
    the manner urged upon us by the appellant.

[46]

Statement (v), which describes the pursuit of a
    public review process rather than a private review process before the College,
    does not even mention the appellant. Rather, it simply refers to the
    respondents preferred course of action.

[47]

Statement (vi) comes from an article that
    appeared on the CTV News website. The appellants pleading and factum suggest
    that this statement is one sentence. In fact, this is a combination of two
    sentences. It also omits a number of other sentences that are found in between.

[48]

Allegedly defamatory comments must be read in
    context:
Guergis
at para. 65;
Mantini v. Smith Lyons LLP
(2003), 64 O.R. (3d) 516 (C.A.), at para. 14, leave to appeal to S.C.C.
    refused, [2003] S.C.C.A. No. 344
.
Context is important in determining
    the meaning of words and whether they are capable of being defamatory. Reading
    impugned comments in isolation is unfair and is of no assistance to the court
    in its analysis. This problem is exacerbated where, as here, the appellant has
    combined portions of different comments into one statement.

[49]

The first portion of statement (vi) reads as
    follows in the appellants statement of claim: [She] passed all of the exams
    but when [she] went out to practice, there was a problem. The appellant
    misquotes this statement in her pleading. The correct wording, found in the CTV
    news article, uses the pronoun you instead of she. When this statement is
    corrected and read in context, it is clear that the respondent Barbara Legate was
    making a general comment about why the College may impose restrictions on a physicians
    practice. To the extent that the comment can be taken to refer to the appellant
    specifically, it is again a purely factual statement about the restrictions
    imposed on her medical licence by the College.

[50]

The second part of the statement, which is found
    four paragraphs below the first part of the impugned statement in the original
    article, reads as follows in the appellants pleading:   the unfortunate
    consequence of that, we allege, is that children have been born with
    disabilities that they wouldnt otherwise have had. The words of that do not
    appear in the original quote, but appear to have been added by the appellant
    when she combined the two sentences that form statement (vi). Although not
    pleaded, the appellant also now takes issue with the first part of this
    sentence, which reads: She didnt take the steps wed expect a physician to
    take. The appellant invites us to parse this statement to conclude that the
    phrase we allege modifies only the second part of the sentence and not the
    first part. In other words, the phrase we allege relates to the consequence
    of the problem but does not qualify the existence of the problem.

[51]

Leaving aside the fact that the first part of
    the sentence, which is now the focal point of the appellants complaint, is not
    pleaded, I am of the view that the statement could not be interpreted as
    defamatory. A reasonable person who read the entirety of the sentence in issue
    would understand that Ms. Legate was merely describing the nature of the
    allegation against the appellant. This includes both the existence and
    consequences of the alleged problem. A reasonable person would not parse the statement
    in the manner suggested by the appellant.

[52]

The appellant also made various general references
    in her statement of claim to false and defamatory statements by the
    respondents. Those statements were not detailed or identified in her pleading.
    To the extent that they are different than the seven statements above, they
    cannot support a defamation claim because the appellant failed to plead the
    exact statements complained of and the details of who made them, when they were
    made and to whom:
Khan v. Canada (A.G.)
, 2009 CanLII 7090 (ON SC), at
    para. 29, affd 2009 ONCA 737, leave to appeal to S.C.C. refused, [2009]
    S.C.C.A. No. 516.

[53]

For reasons that are not clear, after striking
    the statement of claim in its entirety, and over the objection of counsel for
    the respondents, the motion judge went on to provide his opinion on whether
    the proposed amended statement of claim remedied the defects in the now struck
    statement of claim. He did not order any relief with respect to the amended
    statement of claim and did not, as noted above, make any order regarding
    whether the appellant should be granted leave to amend her claim.

[54]

I agree with the submission of the respondents
    that since the appellant did not seek leave to amend her claim or issue the

proposed
    amended statement of claim, and given that the motion judge did not order any
    relief with respect to it, his comments had no legal effect.

[55]

I do note, however, that the motion judges
    conclusion that two of the allegedly defamatory statements in the proposed
    amended statement of claim were incapable of bearing a defamatory meaning
    despite the fact that they could be interpreted in one way as commenting on
    the merits of the case and of being defamatory, appears to be an error of law.
    As this court made clear in
Guergis
, at para. 73, where the range of possible
    meanings for a statement includes one that is defamatory, it is not a clear
    case enabling the pleading to be struck. In fairness to the motion judge, he
    went on to suggest that any claim based on these statements could be struck as
    an abuse of process. In any event, his statements regarding the proposed
    amended statement of claim were clearly
obiter
and had no impact on the
    final outcome of the motion.

(iii)

Malicious Prosecution

[56]

The elements of the tort of malicious
    prosecution were summarized by the Supreme Court of Canada in
Miazga v.
    Kvello Estate
, 2009 SCC 51, [2009] 3 S.C.R. 339, at paras. 53-56, as
    follows: 1) a proceeding initiated by the defendant; 2) a proceeding terminated
    in favour of the plaintiff; 3) the defendant had no reasonable and probable
    cause to initiate the proceeding; and 4) the defendant acted with malice.

[57]

As a preliminary matter, there is an issue between
    the parties regarding whether malicious prosecution applies to civil actions and
    disciplinary proceedings. Traditionally, this tort was limited to criminal
    prosecutions and petitions to wind up a public company or a petition in
    bankruptcy. However, one Divisional Court case,
Stoffman v. Veterinary Association
    (Ontario)
(1990), 73 O.R. (2d) 737, suggests that the tort may apply to disciplinary
    proceedings. It is unnecessary to determine this issue because the pleading of malicious
    prosecution in this case can and should be struck on numerous other grounds.

[58]

First, with respect to the second element, a
    careful review of the statement of claim discloses that it does not contain a definitive
    statement that the proceedings have terminated in favour of the plaintiff. With
    respect to two of the civil actions, the appellant pleads that they are
    ongoing. The closest the appellant comes to an unequivocal statement are her
    assertions that the disciplinary proceedings have, or will, terminate in her
    favour and that the civil actions are bound to fail. I need not comment on
    the propriety of the motion judges reliance on the statement made by counsel
    for the respondents on the present stage of the actions and complaints. The
    fact is that the appellant failed to unequivocally plead that all of the
    various proceedings, or any of them, had been terminated in her favour.
    Therefore, there was no error in the motion judges finding that this element
    of the tort was not properly pleaded.

[59]

Second, the crucial element of malice was also
    not properly pleaded. There was no allegation of malice at all regarding the
    civil actions. With respect to the complaints to the College, it was pleaded
    only as one potential, alternative motivation. As the Supreme Court of Canada
    found in
Miazga
, at para. 56, malice is the key element in striking
    the balance this tort was designed to maintain between the effective
    administration of justice and the need to compensate individuals who have been
    wrongly prosecuted. The appellants statement of claim does not adequately
    plead this element.

[60]

Third, s. 36(3) of the
Regulated Health
    Professions Act, 1991
, S.O. 1991, c. 18, provides:

No record of a proceeding under this Act, a health profession
    Act or the
Drug and Pharmacies Regulation Act
, no report, document or
    thing prepared for or statement given at such a proceeding and no order or
    decision made in such a proceeding is admissible in a civil proceeding other
    than a proceeding under this Act, a health profession Act or the
Drug and
    Pharmacies Regulation Act
or a proceeding relating to an order under
    section 11.1 or 11.2 of the
Ontario Drug Benefit Act
. 1991,
    c. 18, s. 36 (3); 1996, c. 1, Sched. G,
    s. 27 (2).

[61]

The effect of this provision is that although
    reference to a complaint to the College having been made may be proven at
    trial, nothing from the record of a complaint  from the initial statement
    given by a complainant to the final order made by the tribunal  is admissible
    in a civil action, including an action for malicious prosecution. The practical
    result is that actions for malicious prosecution based on complaints to the
    College are effectively barred:
Conroy v. College of Physicians &
    Surgeons of Ontario
, 2011 ONSC 324, 329 D.L.R. (4th) 689, at paras. 51-55,
    affd 2011 ONCA 517, leave to appeal to S.C.C. refused, 432 N.R. 388;
Montgomery
    v. Seiden
, 2012 ONSC 6235, at paras. 41-42;
Forget v. Sutherland
(2000),
    188 D.L.R. (4th) 296 (Ont. C.A.), at paras. 26-39, leave to appeal to S.C.C.
    refused, [2000] S.C.C.A. No. 531.

[62]

For these reasons, I am of the view that the
    motion judge made no error in striking the malicious prosecution claim.

(iv)

Champerty and Maintenance

[63]

The entirety of the plaintiffs pleading in this
    regard is contained in the following two paragraphs from the statement of claim:

[20] The Plaintiff pleads that the assistance and encouragement
    of the Defendants provided to third parties on whose behalf the Complainants
    were submitted and actions commenced, for no lawful reason, constitutes
    maintenance and champerty. The Defendants have no motive or lawful reason to
    encourage the Complaints or actions commenced on behalf of third parties, and
    have entered into agreements with these third parties to share in the proceeds,
    if any of the litigation.

[21] As a result the Plaintiff has suffered, and will continue
    to suffer, damages as a result of the Defendants actions, the full extent of
    which will be provided prior to trial.

[64]

In
McIntyre Estate v. Ontario (Attorney
    General)
(2002), 61 O.R. (3d) 257 (C.A.), OConnor A.C.J.O. noted, at
    para. 25, that the torts of champerty and maintenance continue to be actionable
    upon proof of special damage. Associate Chief Justice OConnor undertook a
    thorough review of the development of these torts in Canada and England. He discerned
    four general principles from this review of the common law, at para. 34:

-

Champerty is a subspecies of maintenance.
    Without maintenance, there can be no champerty.

-

For there to be maintenance, the person
    allegedly maintaining an action or proceeding must have an improper motive,
    which motive may include, but is not limited to, officious intermeddling or
    stirring up strife. There can be no maintenance if the alleged maintainer has a
    justifying motive or excuse.

-

The type of conduct that has been found to constitute
    champerty and maintenance has evolved over time so as to keep in step with the
    fundamental aim of protecting the administration of justice from abuse.

-

When the courts have had regard to statutes such
    as the
Champerty Act
and the
Statute
    Concerning Conspirators
, they have not interpreted those
    statutes as cutting down or restricting the elements that were otherwise
    considered necessary to establish champerty and maintenance at common law.

[65]

With these principles in mind, I turn to the
    champerty and maintenance pleading in the present action.

[66]

I disagree with the motions judges conclusion
    that the pleading is deficient because it does not specifically allege that the
    respondents improperly stirred up litigation that would not otherwise have been
    pursued or that they brought baseless claims as a form of intimidation. Such an
    explicit plea is not necessary as it is possible to ascertain, with a liberal
    consideration of the pleading, that the respondents are alleged to have encouraged
    litigation with improper motives.

[67]

Notwithstanding the foregoing, I conclude that
    the motion judge did not err in striking the champerty and maintenance claim.

[68]

First, it is not possible to make a claim for
    champerty, which requires the maintainer to share in the profits of the
    litigation, with respect to complaints made to the College. Damages cannot be
    awarded in those proceedings. Consequently, there are no profits to share. I am
    also aware of no case law, and the appellant has not provided the court with
    any, where a maintenance claim has been made regarding complaints to a
    regulatory body.

[69]

Second, I also agree with the submission of the
    respondents that the claim was premature, since none of the underlying actions or
    complaints had been concluded at the time the claim was issued.

[70]

Other than a passing reference in
Lorch v.
    McHale
(2008), 92 O.R. (3d) 305 (S.C.), at para. 34, affd 2009 ONCA 161,
    there is no Ontario case law that addresses the issue of whether a claim for
    champerty and maintenance can be asserted prior to the conclusion of the
    underlying action.

[71]

In
Oldford v. Canadian Broadcasting Corp
.,
    2004 NSSC 105, 223 N.S.R. (2d) 380, Coughlan J. dealt with the issue squarely.
    He concluded that a claim for maintenance is not actionable without proof of
    actual loss. Actual loss will not be incurred if the maintainer is successful
    in the underlying action. On that basis, he struck a claim for champerty and
    maintenance regarding an underlying claim that had not been concluded.

[72]

Justice Coughlan thoroughly reviewed the English
    authorities that address this point. He placed considerable reliance on the
    reasoning of Lord Shaw and Lord Phillimore in
Neville v. London Newspapers
    Ltd
.
, [1919] A.C. 368 (H.L.). While Coughlan J. recognized that the
    two majority decisions in
Neville
were divided on the issue of whether
    unsuccessful litigants can later make a claim for champerty and maintenance, he
    ultimately concluded that they could not.

[73]

I agree with Coughlan J.s analysis on this
    issue. There can be no champerty or maintenance if the maintainer
has a justifying motive or excuse. As stated by Lord Phillimore in
Neville,
at p
. 433,
the justification
    or excuse is to be found in the righteousness of the suit and the proof of its
    righteousness is its success. It follows that the lawfulness of a defendants
    position in maintaining litigation can only be determined once the litigation
    has concluded.

[74]

As noted in
McIntyre
at para. 47, the
    public policy animating the law of champerty and maintenance has always been to
    protect the administration of justice from abuse. In those instances where our
    judicial system is being abused, it is only fair that the aggrieved party is
    entitled to compensation. But where the underlying action or defence is a valid
    and legitimate use of the court system, there can be no damages based on these
    causes of action.

[75]

An action for champerty and maintenance that precedes
    the conclusion of the underlying action puts the cart squarely before the
    horse. Moreover, the premature use of these torts is abusive to the
    administration of justice because it serves to obstruct the prosecution of
    legitimate claims and defeat the assertion of valid defences. This, of course,
    is contrary to the public policy rationale for these torts.

(v)     Intentional
    Interference with Economic Relations

[76]

The gravamen of the appellants claim for
    intentional interference with economic relations is that the respondents
    improperly and maliciously intended to interfere with her practice and ensure
    that she could not work as a physician. The appellant relies upon the fact that
    the respondents have commenced at least 58 civil actions against her. She also
    pleads that through advertisements, statements and misrepresentations, the
    respondents solicited third parties and made various misrepresentations to
    induce them to commence unmeritorious civil actions and complaints to the
    College regarding the appellant.

[77]

The appellant pleads that these actions were intended
    to injure [her], or that the unlawful or illegal actions of the Defendants
    were directed against [her]. The appellant pleads that but for the
    advertisements, statements and misrepresentations, the legal proceedings
    against her, or a vast majority of them, would not have been commenced. Finally,
    the appellant pleads that she has suffered economic loss as a consequence of this
    conduct by the respondents.

[78]

The motion judge struck this portion of the
    claim on the grounds that the allegations are unspecified and are inconsistent
    with the Supreme Court of Canadas narrow definition of this tort in
A.I.
    Enterprises Ltd. v. Bram Enterprises Ltd
.
, 2014 SCC 12, [2014] 1
    S.C.R. 177. The motion judge also found that, to the extent that the pleadings
    rely on confidential communications between the respondents and their clients,
    the appellant relied on inadmissible facts. Consequently, the claim should be
    struck pursuant to rule 25.11.

[79]

In
A.I. Enterprises
, Cromwell J. extensively
    reviewed the history and elements of intentional interference with economic
    relations, which is also referred to as, among other names, the unlawful means
    tort. He traced the development of the tort and considered the state of the
    law in various common law jurisdictions. Justice Cromwell concluded that this
    tort should be restricted to three-party situations in which the defendant
    commits an unlawful act against a third party and intentionally causes economic
    harm to the plaintiff through that act. Unlawful conduct is limited to conduct that
    is actionable by the third party or would have been actionable if the third
    party suffered loss. The defendant must intend to cause injury to the plaintiff
    as an end in itself or as a means of achieving an ulterior motive (e.g.
    enriching itself):
A.I. Enterprises
, at paras. 5 and 95.

[80]

For the following reasons, I agree with the
    conclusion of the motion judge that the claim for damages for intentional
    interference with economic relations should be struck because it was not
    pleaded properly.

[81]

First, the appellants plea is equivocal, as it
    states that the respondents intention was to injure
or
the actions were
    directed against the plaintiff. This pleading does not meet the narrow
    definition of the tort adopted by the Supreme Court of Canada. It is not enough
    to plead that the actions of respondents were directed at the appellant. The
    respondents must have intended to injure her.

[82]

Second, the unlawful means alleged are not
    clear. Whatever they may be, they would have to be actionable by the appellants
    patients against the respondents. Defamatory statements about the appellant
    made in private or in advertisements or solicitations would not be actionable
    by the patients. It is possible that misrepresentations to the clients could be
    actionable, but the alleged misrepresentations are never specified or described
    in any level of detail in the statement of claim.

[83]

Third, and in any event, I also agree with the
    finding of the motion judge that in order to understand the nature of the
    misrepresentations and whether the clients relied upon them, the appellant would
    need to lead evidence of the privileged communications between the respondents
    and their clients. Consequently, this claim was properly struck under rule
    25.11 as it relies on inadmissible evidence.

(vi)    Intentional
    Infliction of Mental Distress

[84]

I agree with the conclusion of the motion judge
    that the brief reference to this tort in the pleading was so vague that a
    defendant who read it would have no idea what conduct was being alleged against
    them. There were no specified allegations in the appellants pleadings. I see
    no error in the motion judges decision to strike this part of the claim.

(vii)   Punitive
    Damages

[85]

The motion judge, relying upon
Research
    Capital
, struck the claim for punitive damages on the ground that it was
    pleaded in a conclusory manner with insufficient particulars. The appellants
    contention that the motion judge erred in law by relying on that case because it
    involved a breach of contract is untenable. This case was cited for the general
    proposition that claims for punitive damages must be pleaded with some degree
    of particularity. The fact that the case involved a breach of contract does not
    make it distinguishable on this rather uncontroversial legal point.

[86]

The wording of the claim for punitive damages in
    the present case was pure boilerplate and contrary to the admonition of Binnie J.
    in the seminal case
Whitten v. Pilot Insurance Co
.
, 2002 SCC
    18, [2002] 1 S.C.R. 595, at para. 87, over ten years ago, that claims for
    punitive damages must be pleaded with particularity and that boilerplate
    language is conclusory rather than explanatory. It is not sufficient, as the
    appellant submits, to simply reference the aforesaid conduct described in the
    remainder of the pleading to support a claim for punitive damages.

[87]

I see no basis to interfere with the motion
    judges finding that the claim for punitive damages should be struck.

(viii)  Abuse
    of Process

[88]

Even if the statement of claim had properly
    pleaded tenable causes of action, it should have been struck as an abuse of
    process.

[89]

In my view, the statement of claim, which I
    hasten to add was not drafted by counsel on the appeal, is an abuse of process.
    It is a collateral attack on the civil lawsuits against the appellant and the complaints
    to the College. It appears to be designed to frustrate those processes and deny
    the appellants patients redress before the courts and the College. I reach
    this conclusion for the following reasons.

[90]

First, the appellant asserted causes of action
    (i.e. malicious prosecution and champerty and maintenance) that were clearly
    premature as no underlying action or complaint had been resolved, let alone in
    her favour.  She attempted to

evade this issue by asserting in the
    statement of claim that proceedings were or could in the future be decided in
    her favour. She then attempted to rely on this statement to argue that the
    motion judge must accept that she had met this part of the test for a malicious
    prosecution claim.

[91]

Second, the appellants malicious prosecution
    claim was willfully blind to the clearly established case law and s. 36(3) of
    the
Regulated Health Professions Act, 1991
, which make it clear that an action for malicious prosecution was
    unavailable in the circumstances
.

[92]

Third, the intentional interference with
    economic relations claim necessarily involved the disclosure of privileged solicitor
    and client communications related to ongoing litigation against the appellant.
    It is hard to imagine that the appellant in good faith actually believed that
    this claim could proceed while the complaints against her were outstanding.

[93]

Fourth, the assertion of multiple poorly pleaded
    causes of action was a transparent effort to dress up a libel claim that had no
    chance of success.

[94]

For these reasons, I find that it would be an
    abuse of the courts process to permit the appellants claim to continue.

DISPOSITION

[95]

For the foregoing reasons, I would dismiss the
    appeal. The respondents, as the successful parties, are entitled to their costs
    of the appeal, which I would fix at $12,500.

Released: September 18, 2015 PL

C.
    W. Hourigan J.A.

I
    agree P. Lauwers J.A.

I
    agree G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Gidzinski v. Lake Simcoe Aeropark Inc., 2015 ONCA
    633

DATE: 20150918

DOCKET: C59133

Laskin, MacPherson and MacFarland JJ.A.

BETWEEN

Stan Gidzinski a.k.a. Stanislaw Gidzinski

Applicant (Appellant)

and

Lake Simcoe Aeropark Inc., Berardo Mascioli, Elizabeth Betowski a.k.a.
    Ewa Betowski

Respondents

Stan Gidzinski, acting in person

Peter I. Waltmann, for the respondents

Heard and released orally: September 16, 2015

On appeal from the order of Justice David A. Broad of the
    Superior Court of Justice, dated June 20, 2014.

ENDORSEMENT

[1]

The appellant Stan Gidzinski appeals the Order of Broad J. of the
    Superior Court of Justice dated June 20, 2014. The trial judges order flowed
    from the trial of an issue ordered by Kent J. on November 30, 2011. The trial
    in fact dealt with four interrelated issues. In the result, success was divided
    between the parties.

[2]

The trial arose out of a breakdown of the business relationship between
    the appellant on one side and the respondents Berardo Mascioli and Elizabeth
    Betowski on the other side. The business in question was a proposed land
    development under the name of the corporate respondent Lake Simcoe Aeropark
    Inc.

[3]

The principal component of the decision challenged by the appellant
    relates to what portion of the funds should have been held back for
    distribution.

[4]

We see no basis for interfering with the trial judges resolution of
    this issue. The trial judge carefully reviewed the evidence of the appellant
    and the respondent Betowski. His distribution is consistent with the summary document
    in Tab 6 of the respondents compendium (Exhibit 29 at trial).

[5]

The appellant argued several other issues. They relate to factual
    findings which, in our view, the trial judge was entitled to make.

[6]

The appellant seeks to introduce fresh evidence about one of the items
    he purchased, a water heater. We decline to admit this evidence as it would not
    change the result in light of the evidence about other purchases made by the
    appellant.

[7]

The appeal is dismissed. The respondents are entitled to their costs of
    the appeal fixed at $10,000 inclusive of disbursements and HST. These costs may
    be taken from the funds currently held in escrow. The order relating to this
    appeal may be taken out without the appellants approval as to form and content.

John
    Laskin J.A.

J.C.
    MacPherson J.A.

J.
    MacFarland J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Gonzalez
    (Re), 2015 ONCA 650

DATE: 20150929

DOCKET: C60190

Doherty, Tulloch and Huscroft JJ.A.

IN THE MATTER OF GUSTAVO
    GONZALEZ

AN APPEAL UNDER PART
    XX.1 OF THE
CODE

Andrew Menchynski and Cate Martell, for the appellant

Kimberley Crosbie, for the Crown respondent

Janice Blackburn, for Waypoint Center for Mental Health
    Care

Heard:  September 18, 2015

On appeal against the disposition of the Ontario Review
    board, dated November 18, 2014.

APPEAL BOOK ENDORSEMENT

[1]

There is no basis upon which to interfere with the Boards finding that
    the appellant poses a significant risk to the public.  The detention order was warranted.

[2]

Counsel for the appellant argues that a treatment impasse has been
    reached and the time has come for the Board to exercise its jurisdiction, as
    recognized in
Mazzei v. British Columbia (Director of Adult Forensic
    Psychiatric Services)
, [2006] 1 S.C.R.
    326,
to order some form of alternative assessment with a view to
    ending the treatment impasse.

[3]

There is merit to the argument and indeed the Board has referred to the
    possibility of a treatment impasse in its earlier decisions.  The Board was not
    asked to make any kind of order in relation to the treatment impasse at this
    hearing.

[4]

The appeal is dismissed.  The appellant has an annual review scheduled
    for November.  The Board will no doubt give careful consideration to exercising
    the jurisdiction described at para. 42 of
Mazzei
.  The hospital should
    be prepared to assist the Board in that regard.


COURT OF APPEAL FOR ONTARIO

CITATION: Graham v. Ontario, 2015 ONCA 627

DATE: 20150917

DOCKET: C59965

Laskin, MacPherson and MacFarland JJ.A.

BETWEEN

George Keith Graham and
    Karn Graham (and the persons listed on Schedule A hereto)

Applicants (Appellants)

and

Her Majesty the Queen in right of Ontario

Respondents (Respondents)

David Kirwin and Kenneth Peacocke, for the appellants

Lise Favreau and Judith Parker, for the respondent

Heard: September 15, 2015

On appeal from the order of Justice Andrew J. Goodman of
    the Superior Court of Justice, dated January 7, 2015.

ENDORSEMENT

[1]

The appellants appeal the order of A.J. Goodman J. of the Superior Court
    of Justice dismissing their application and declaring that they are obligated
    to pay a portion of the grant in lieu of taxes paid by the Ministry of Natural
    Resources (MNR) to the Municipality of Chatham Kent pursuant to the
Municipal
    Tax Assistance Act
(
MTAA
).

[2]

The appellants are owners of private cottages on leased land in Rondeau
    Provincial Park. The Crown makes payments in lieu of taxes (PILT) to
    municipalities pursuant to s. 4(2) of the
MTAA
:

4(2) Every Crown agency, in respect of provincial
    property owned or occupied by it, may pay in each year to the municipality in
    which the property is situate an amount equal to the tax for municipal purposes
    that would be payable if the property were taxable.

[3]

By virtue of s. 4(3) of the
MTAA
, the tenants of the Crown
    properties are required to pay the amounts paid by the Crown under s. 4(2),
    unless the parties agree otherwise:

4(3) Unless the parties have agreed otherwise, the
    tenant shall owe a debt to the Crown or Crown agency, as the case may be, equal
    to the amount paid under paragraph 2.

The amounts the tenants pay are based on the assessed
    values of their properties.

[4]

The appellants contend that they come within the words Unless the parties
    have agreed otherwise in s. 4(3) of the
MTAA
. They submit that the
    letter of October 24, 1986, and the lease extension agreement of November 1987
    amounted to an agreement to the contrary. They also rely on the conduct of the
    parties to corroborate the evidence of their agreement.

[5]

The application judge rejected their argument. He concluded:

[51]    I agree with the respondents that no extrinsic evidence
    can be considered that would add to, subtract from, vary, or contradict a
    contract that has been wholly reduced to writing, including evidence of the
    subjective intention of the parties. Nor can extrinsic evidence be used to
    prove the existence of a collateral contract which contradicts the express
    terms of the main contract. On this basis, reliance on any communications
    between the parties or statements about subjective intention to establish a
    term contrary to clause 7 of the Original Lease is not permitted.

[52]    There is nothing in the Second Lease Extension dealing
    with taxes, rates, duties or assessments. Therefore, the Original Lease
    Agreement remained operative as it relates to this obligation. Stewart McLaren
    claims that the provision dealing with taxes in the Original Lease was dropped
    in subsequent leases. I am not satisfied that the term dealing with taxes was
    removed in the manner suggested by the applicants.

[6]

On this appeal, the appellants contest the conclusions set out in this
    passage. In our view, they cannot succeed. We agree with the application
    judges conclusions and with his reasons in support of the conclusions. We
    would add that the trial judge considered all the documentary evidence relied
    on by the appellants. He found no agreement. This finding is entitled to
    deference: see
Sattva Capital Corp. v. Creston Moly Corp.
, 2014 SCC
    53.

[7]

The Crown is merely seeking to enforce its statutory rights under s.
    4(3) of the
MTAA
. It is not claiming any back tax from years prior to
    2013; rather it is relying on the
MTAA
on a go-forward basis because
    of a change in policy that led to a change in the relevant statute. This is
    what governments do; they change their policies and people are affected.

[8]

The Crown gave notice to the tenants that this change was coming. It was
    not a bolt out of the blue. It was a change in taxation policy, backed by a
    statutory obligation of the tenants to pay, clearly communicated to the
    tenants. The tenants were fully informed of the proposed changes, given an
    opportunity to meet with MNR officials to discuss them, and provided with the
    right to seek reconsideration of, or appeal, their individual assessments. The
    appellants do not get a free ride now because the Crown let them enjoy their
    cottages free from municipal taxes for 30 or more years.

[9]

The appeal is dismissed. The respondent is entitled to its costs of the
    appeal fixed at $10,000 inclusive of disbursements and HST.

John
    Laskin J.A.

J.C.
    MacPherson J.A.

J.
    MacFarland J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Gushewski v. Adam, 2015 ONCA 607

DATE: 20150909

DOCKET: C58663

Cronk, Lauwers and van Rensburg JJ.A.

BETWEEN

Christine Gushewski

Appellant/Plaintiff

and

Anneliese Adam

Respondent/Defendant

No one appearing for the appellant

Peter A. Downard and Fida Hindi, for the respondent

Heard and released orally: September 4, 2015

On appeal from the judgment of Justice J.R. Sproat of the
    Superior Court of Justice, dated March 11, 2014.

APPEAL BOOK ENDORSEMENT

[1]

The appellant did not attend for argument of her appeal today.  Instead,
    letters were forwarded to the court on September 3, 2015 from a physician on
    behalf of the appellant indicating that the appellant was unable to proceed
    with her appeal for medical reasons.  The letters provide few details of the
    appellants suggested illness, her prognosis or any date upon which she might
    be able to proceed with the appeal.

[2]

This is the third adjournment of the appeal sought directly or
    indirectly by the appellant.  The appeal has been outstanding for a
    considerable time and there is no evidence that the appellant intends to
    actually proceed with the appeal.  Nor is there any cogent evident before us in
    proper form of any medical reason why the appellant cannot proceed.

[3]

The appeal is therefore dismissed as abandoned.  The respondent is
    entitled to her costs of the appeal, fixed in the aggregate amount of $7,500,
    inclusive of disbursements and all applicable taxes.


COURT OF APPEAL FOR ONTARIO

CITATION: Hanif v. Ontario College of Pharmacists, 2015 ONCA
    640

DATE: 20150921

DOCKET: C59765

Laskin, MacPherson and MacFarland JJ.A.

BETWEEN

Mohamed Imran Hanif

Applicant (Appellant)

and

Ontario College of Pharmacists and Her Majesty
    the Queen in right of Ontario

Respondents (Respondents)

Neil Abramson and Lindsay Kantor, for the appellant

Josh Hunter, for the respondent Her Majesty the Queen in
    right of Ontario

Aaron Dantowitz, for the respondent Ontario College of
    Pharmacists

Heard: September 17, 2015

On appeal from the order of Justice
Graeme
Mew of the Superior Court of Justice, dated November 21, 2014.

By
    the Court:

[1]

The appellant Mohamed Hanif is a pharmacist. He was involved in a
    consensual sexual relationship with a patient. Sexual activity between a health
    professional and a patient constitutes sexual abuse under the
Health
    Professions Procedural Code
(
Code
). A finding of sexual abuse
    results in a mandatory revocation of the health professionals certificate of
    registration: see s. 51(2) and (5) of the
Code
, being Schedule 2 of
    the
Regulated Health Professions Act
, 1991, S.O. 1991, c. 18.

[2]

The appellant challenged the constitutional validity of the mandatory
    revocation provisions of the
Code
. He did so on distribution of powers
    (federalism) grounds, not under the
Charter
. He claimed that the Code
    intruded into federal jurisdiction over the criminal law under s. 91(27) of the
Constitution Act, 1867
.

[3]

In a decision dated November 21, 2014, with reasons reported at 2014
    ONSC 6613, Mew J. of the Superior Court of Justice dismissed the appellants
    application. He said:

The imposition of mandatory licence revocation in certain cases
    of sexual abuse may well be seen by some as too blunt an instrument to address
    the undoubted harm caused by health care professionals who have sexual
    relations with a patient, but that does not render the impugned provisions of
    the
Code
criminal law.

These provisions are, in pith and substance, concerned with
    regulating health professions under section 92(13) of the
Constitution Act,
    1867
.

[4]

The appellant appeals this decision. At the conclusion of the
    appellants oral argument, the panel did not call on the respondents Her Majesty
    the Queen in Right of Ontario (Ontario) or Ontario College of Pharmacists.
    The panel indicated that the appeal would be dismissed with brief reasons to
    follow. These are those reasons.

[5]

We begin with a preliminary point. The respondent Ontario brought a
    motion relating to the proper route for getting this appeal to this court. The
    three parties disagreed on the route. However, they all agreed that this court
    could hear the appeal. In light of that agreement, and because of the clear
    importance of the issue raised by the appeal, the panel suggested that the
    merits of the appeal be addressed. The parties agreed. We observe, however,
    that the jurisdictional issue raised by Ontario may arise in the future.

[6]

The application judge accepted the correct analytical approach for
    addressing a distribution of powers question. He started with a pith and
    substance analysis of the challenged legislation:

When the validity of legislation is challenged on federalism
    grounds, the starting point is to analyse the pith and substance or dominant
    purpose of those provisions:
Canadian Western Bank v. Alberta
2007
    SCC 22 at para. 25. What are the most important characteristics of these
    provisions? What do they do? What are they about? What is their leading
    feature?

[7]

The application judge then proceeded, again correctly, to consider both
    the purpose and effects of the
Code
: see
Reference re Firearms Act
,
    2000 SCC 31 at para. 16.

[8]

The application judge summarized his description of the purpose of the
Code
in this fashion:

The mandatory revocation provisions are concerned with the
    sexual abuse of patients by professionals. They prohibit sexual activity in an
    effort to prevent sexual abuse. They make sexual acts inconsistent with a
    professional-patient relationship.

[I]t is abundantly clear that the purpose of the mandatory
    revocation provisions of the
Code
is the protection of the public by
    the imposition of clear and unequivocal standards of professional behaviour.

[9]

The appellant does not challenge the purpose component of the
    application judges reasons.

[10]

The
    application judge then turned to an analysis of the effects of the
Code
.
    He said:

The legal effects of the mandatory revocation provisions mirror
    the purpose of the provisions.

The provisions identify a type of prohibited conduct for which
    ones licence to practice will be revoked. Although the personal effect of
    losing ones licence can be significant for an individual and his or her
    family, these personal effects are not the focus of the pith and substance
    analysis. At this stage, we are chiefly concerned with effects in the sense of
    how the statute changes the rights and liabilities of those who are subject to
    it (Peter Hogg,
Constitutional Law of Canada
, 5th ed. (Toronto: Thomson
    Carswell, 2007) at 442.

The imposition of a condign sanction for what is now recognised
    as one of the most serious manifestations of professional misconduct is not
    inconsistent with the regulation of health care professionals. All professions
    impose the right to terminate the privileges of a licensee in appropriate
    circumstances.

[11]

The
    appellant contests the application judges effects analysis. He says that it is
    too narrow. He submits that the effect of the mandatory revocation of a
    professional licence not only terminates a persons livelihood (in itself, a
    very serious consequence); it also carries with it  because of its tie to
    sexual abuse  a substantial stigma. The professional is in effect branded in
    the public eye as a sexual abuser. This stigma, says the appellant, makes the
Code
cross over the line from permissible regulation of a profession into
    impermissible regulation of morality in the context of consensual sexual
    relations. Once this line is crossed, the
Code
leaves the safe
    provincial harbour of s. 92(13) and intrudes into one of the core components of
    federal criminal law under s. 91(27) of the
Constitution Act, 1867

    morality.

[12]

We
    do not accept this submission, essentially for three reasons.

[13]

First,
    the impugned
Code
provisions do not have the effect of regulating
    morality. The intended, and in fact overwhelming, effect of the provisions is
    to protect the public. Legislation that declares that any sexual activity, even
    consensual, between a health professional and a patient is inconsistent with
    the professional-patient relationship does not make a statement about morality;
    rather it speaks to the maintenance of the integrity of the
    professional-patient relationship.

[14]

Second,
    the
Code
provisions do not have the effect of criminalizing activities
    that fall outside the delivery of health services. They do not have the effect
    of importing notions of sexual morality on consenting adults. Rather, they
    require a health professional to make a simple choice: treat the patient or sever
    the professional-patient relationship and engage in a sexual relationship.
    Treating a patient while involved in a sexual relationship undermines the
    integrity of the professional-patient relationship.

[15]

Third,
    all offences  federal, provincial, criminal, regulatory  involve a degree of
    stigma. If you break the law, you may lose respect in the public eye. When the
    appellant says that a contravention of the
Code
in the domain of
    sexual activity between health professionals and patients can lead to both loss
    of livelihood and social stigma, he is right. But to say that this combination
    removes the law from regulation of the health professions and places it in
    criminal law is a bridge too far. Breach of a provincial law can in some cases
    bring with it a potential social stigma in the public eye.

[16]

In
    the end, the mandatory revocation provisions of the
Code
are, as the
    application judge found, in pith and substance the regulation of health care
    professionals, not criminal law. The fact that Parliament might be able to
    criminalize much of the same behaviour is irrelevant. Under the aspect or
    double aspect doctrine, both levels of government can regulate different
    aspects of the same activity under their respective heads of power:
Canadian
    Western
,
supra
, at para. 30. Here, the impugned
Code
provisions rest comfortably inside s. 92(13) of the
Constitution Act, 1867
and there is no duelling federal law to consider.

[17]

The
    appeal is dismissed. No costs.

John
    Laskin J.A.

J.C.
    MacPherson J.A.

J.
    MacFarland J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Keays v. Zipursky, 2015 ONCA 635

DATE: 20150918

DOCKET: C59323

Laskin, MacPherson and MacFarland JJ.A.

BETWEEN

Rita Marie Keays

Appellant

and

Dr. Robert Zipursky

Respondent

No one appearing for the appellant

Joel Kerr,
amicus curiae

Janice Blackburn, for the respondent

Heard: September 15, 2015

On appeal from the judgment of Justice Kim A.
    Carpenter-Gunn of the Superior Court of Justice, dated July 28, 2014.

APPEAL BOOK ENDORSEMENT

[1]

It is now 11:00 a.m. and Ms. Keays has not appeared. We are advised that
    she went AWOL from St. Josephs and under the
MHA
she has been deemed
    discharged. This appeal is dismissed as abandoned.