COURT OF APPEAL FOR ONTARIO

CITATION:  Cavanaugh v. Grenville Christian College, 2013
    ONCA 139

DATE: 20130308

DOCKET: C55627

OConnor A.C.J.O.,
*
Doherty and Blair JJ.A.

BETWEEN

Lisa Cavanaugh, Andrew Hale-Byrne, Richard Van
    Dusen, Margaret Granger and Tim Blacklock

Appellants

and

Grenville Christian College, the Incorporated
    Synod of the Diocese of Ontario, Charles Farnsworth
, Betty Farnsworth,
Judy
    Hay the Executrix for the Estate of J. Alastair Haig
and Mary Haig

Respondents

Kirk Baert, Russell Raikes, Sean ODonnell, Michael
    Saelhof, Loretta Merritt and Christopher Haber, for the appellants

Steven Steiber and Linda Phillips-Smith, for the
    respondent the Incorporated Synod of the Diocese of Ontario

Geoffrey Adair and Alexa Suzenko, for the respondents
    Grenville Christian College, Charles Farnsworth and Judy Hay the Executrix for
    the Estate of J. Alastair Haig

Heard: December 20, 2012

On appeal from the order of Justice Paul M. Perell of the
    Superior Court of Justice, dated May 23, 2012, with reasons reported at 2012
    ONSC 2995.

Doherty
    J.A.:

I

overview

[1]

The appellants brought a motion to certify their action against the
    respondents as a class proceeding pursuant to the
Class Proceedings Act
    1992
, S.O. 1992, c. 6 (
CPA
).  The motion judge refused to
    certify the action against any of the respondents.  In respect of one of the
    respondents, the Incorporated Synod of the Diocese of Ontario (the Diocese),
    the motion judge held that the claim as framed did not reveal a cause of
    action.  He ordered the action against the Diocese immediately dismissed.
    With respect to the other respondents, the motion judge found that the
    appellants failed to show that a class proceeding was the preferable procedure
    and dismissed the motion to certify with leave to apply under s. 7 of the
CPA
to continue the proceedings in an amended form.

[2]

The appellants appealed from both parts of the motion judges order.

[3]

Appellate jurisdiction in proceedings under the
CPA
is divided
    between the Court of Appeal and the Divisional Court.  Some appeals go to the
    Divisional Court under s. 30 of the
CPA
and others go to this court.
    The general appeal power provisions in the
Courts of Justice Act
,
    R.S.O. 1990, c. C.43 (
CJA
) are also relevant when the specific
    provisions of s. 30 have no application.

[4]

All parties to this appeal agreed that the appeal from the order
    refusing to certify the proceedings as against the respondents other than the
    Diocese was properly to the Divisional Court under s. 30(1) of the
CPA
.
    The parties also agreed, however, that this court did have jurisdiction under
    s. 6(1)(b) of the
CJA
to hear the appeal from the order dismissing the
    claim against the Diocese.  The parties submitted that the court should
    exercise its discretion under s. 6(2) of the
CJA
to join the appeal
    against the other respondents with the appeal against the Diocese.

[5]

After hearing oral argument on the jurisdictional issues, the court
    reserved on the question of whether it had jurisdiction to hear the appeal from
    the order dismissing the claim against the Diocese.  The court further
    indicated that, assuming it did have jurisdiction to hear that appeal, it would
    not exercise its jurisdiction under s. 6(2) to hear the appeal against the
    refusal to certify the claim against the other respondents.  The court ordered
    that appeal transferred to the Divisional Court.  The court then heard the
    merits of the appeal from the order dismissing the claim against the Diocese
    and reserved judgment.

[6]

For the reasons that follow, I would hold that this court does have
    jurisdiction to hear the appeal from the order dismissing the action against
    the Diocese.  I would dismiss that appeal.

[7]

I will also, in accordance with the courts endorsement during the oral
    hearing, provide reasons for declining to exercise our jurisdiction in favour
    of hearing the appeal from the refusal to certify the claim against the other
    respondents.

II

the proceedings in the superior court

[8]

Lisa Cavanaugh, Andrew Hale-Byrne, Richard Van Dusen, Margaret Granger
    and Tim Blacklock (the appellants) were all students at Grenville Christian
    College, a private religious school in Brockville, Ontario.  The school is no
    longer in operation.  They allege that they and other residential students at
    the school were physically and psychologically abused over a period spanning
    several decades.  They brought actions in negligence, assault, battery,
    intentional infliction of mental suffering and breach of fiduciary duty against
    Grenville Christian College, Charles Farnsworth (Father Farnsworth), the
    estate of J. Alastair Haig (Father Haig) and the Diocese (collectively the
    respondents).
[1]
Both Father Farnsworth and Father Haig were headmasters at the school.  The
    Diocese is responsible for the administration of Anglican churches and related
    activities in the Brockville area.

[9]

The appellants moved to certify the action under the
CPA
as a class proceeding
.  The motion judge
    dismissed the motion against all the respondents. He did so, however, for two
    quite different reasons and he made two very different orders.  He refused to
    certify the action against the Diocese because the claim as pleaded did not
    allege a cause of action as required under s. 5(1)(a) of the
CPA
.  In
    contrast, he refused to certify the claim against the other respondents because
    in his view the appellants had not demonstrated that a class proceeding was
    the preferable procedure as required under s. 5(1)(d) of the
CPA
.

[10]

The
    different reasons for refusing to certify the action against the Diocese compared
    with the other respondents are reflected in the terms of the order.  In para. 1
    of his order, the motion judge immediately dismissed the action against the
    Diocese.  In paras. 2 and 3, he dismissed the appellants application for
    certification against the other respondents, but allowed the appellants to apply
    for an order under s. 7 of the
CPA
for a continuation of the action.

III

the appeal against the diocese

A.

THE JURISDICTIONAL ISSUE

[11]

Appeals
    are creatures of statute: see
R. v. Meltzer
, [1989] 1 S.C.R. 1764, at
    p. 1773;
Canadian Broadcasting Corporation v. Ontario
,
2011 ONCA 624,
107 O.R. (3d) 161,
at para. 16. This court can hear only
    appeals authorized by statute.

[12]

In civil matters, most appeals are brought
    to this court under s. 6(1)(b) of the
CJA
.  Section 6(1)(b) provides that:

An appeal lies to the Court of Appeal from, a final
    order of a judge of the Superior Court of Justice, except an order referred to
    in clause 19(1)(a) or an order from which an appeal lies to the Divisional
    Court under another Act[.]

[13]

The
    order dismissing the action against the Diocese is a final order.  It is not an
    order referred to in clause 19(1)(a).  Consequently, an appeal lies to this
    court from the order dismissing the action against the Diocese unless an
    appeal lies to the Divisional Court under another Act.  The
CPA
is the
    only other Act of possible application.

[14]

Section
    30 of the
CPA
contains various appeal provisions governing appeals in
    the class action context.  Under s. 30, most appeals go to the Divisional
    Court, but some come to this court.  Sections 30(1) and (2) specifically
    address orders made granting or refusing a motion for certification as a class
    proceeding.  For present purposes, s. 30(1) is relevant.  It provides in part:

A party may appeal to the Divisional Court from an
    order refusing to certify a proceeding as a class proceeding and from an order
    decertifying a proceeding.

[15]

A
    motion judge must refuse certification unless the statutory preconditions to
    certification set out in s. 5(1) of the
CPA
are met.  Section 5(1)
    provides that:

The court shall certify a class proceeding on a
    motion under section 2, 3 or 4 if,

(a)
the pleadings or the
    notice of application discloses a cause of action
;

(b) there is an identifiable class of two or more
    persons that would be represented by the representative plaintiff or defendant;

(c) the claims or defences of the class members
    raise common issues;

(d)
a class proceeding would
    be the preferable procedure for the resolution of the common issues
; and

(e) there is a representative plaintiff or
    defendant who,

(i) would fairly and adequately represent the
    interests of the class,

(ii) has produced a plan for the proceeding
    that sets out a workable method of advancing the proceeding on behalf of the
    class and of notifying class members of the proceeding, and

(iii) does not have, on the common issues for
    the class, an interest in conflict with the interests of other class members.  [Emphasis
    added.]

[16]

The
    motion judge refused to certify the action against the respondents other than
    the Diocese because the appellants failed to show that a class proceeding was
    the preferable procedure as required by s. 5(1)(d).  His order dismissing the
    motion for certification against these respondents is clearly appealable to the
    Divisional Court under s. 30(1) of the
CPA
.

[17]

With
    respect to the Diocese, the motion judge also refused to certify the action,
    albeit because the claim as pleaded did not reveal a cause of action as
    required by s. 5(1)(a).  If the motion judges order in respect of the Diocese
    is properly characterized as a refusal to certify a class proceeding, the
    appeal lies to the Divisional Court.  However, the motion judges order does
    much more than simply refuse to certify the action as a class proceeding
    against the Diocese.  The order dismisses the claim immediately.  The motion
    judges order goes well beyond a determination that the Diocese will not be
    part of any class proceeding.  Under that order, the appellants are barred not
    only from proceeding against the Diocese by way of a class action proceeding,
    but are precluded from proceeding against the Diocese entirely.  If that order
    stands, the appellants action against the Diocese is over.

[18]

I
    read nothing in the remedial powers available on a motion for certification
    under the
CPA
that empowers a judge to dismiss the action in its
    entirety.  To the extent that the
CPA
speaks to the inadequacy of
    pleadings, s. 7 authorizes the judge who refuses to certify the proceeding as a
    class proceeding to order the amendment of the pleadings or to make any other
    order deemed appropriate.  Section 7 does not authorize the motion judge to
    dismiss the action.  In my view, the motion judges order dismissing the action
    against the Diocese could not have had its genesis in the powers granted in the
CPA
to judges hearing a motion for certification.

[19]

A
    Superior Court has the inherent power to dismiss an action when the claim does
    not disclose a reasonable cause of action: see
Hunt v. Carey Canada Inc.
,
    [1990] 2 S.C.R. 959, at p. 968.  That power is most commonly exercised on a
    motion brought under Rule 21.01(1)(b) of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194, to strike a pleading on the basis that it does not disclose
    a reasonable cause of action.  The Diocese could have brought a motion under
    Rule 21.01(1)(b) and joined that motion with the appellants motion for
    certification.  Had the Diocese followed that procedure, the motion judge would
    clearly have had the power to dismiss the action against the Diocese under Rule
    21.01(1)(b).  Any appeal from that order would have been to this court pursuant
    to s. 6(1)(b) of the
CJA
.

[20]

In
Menegon v. Philip Services Corp.
(2001), 23 B.L.R. (3d) 151 (Ont.
    S.C.), affd 167 O.A.C. 277 (C.A.), the defendant did bring a motion under Rule
    21 to dismiss for failure to disclose a cause of action.  That motion was heard
    with the certification motion and appealed to the Divisional Court:
Menegon
    v. Philip Services Corp.
(2002), 155 O.A.C. 365 (Div. Ct.).  In holding
    that the Divisional Court had no jurisdiction to hear the appeal from the order
    dismissing the action for failure to disclose a cause of action, Farley J. stated,
    at p. 366:

Although an appeal from a refusal to certify an action as a
    class proceeding is to the Divisional Court, the refusal here was based on the
    failure of Menegon in his statement of claim to disclose a cause of action.
    However, that same failure is the foundation of the determination of Gans J.,
    to dismiss the action and refuse leave to amend.
The
    action having been dismissed, the question of its certification as a class
    proceeding is moot; in order to have certification of the action, the judgment
    dismissing the action would have to be put aside.
The dismissal of the
    action, as discussed, is a final order, an appeal from which only lies to the
    Court of Appeal in these circumstances of the thrust of the claim being for
    more than $25,000.
[2]
[Emphasis added.]

[21]

This
    court has also heard appeals from orders dismissing claims made under Rule
    21.01(1)(b) when that motion was brought in conjunction with a motion for
    certification under the
CPA
: see e.g.,
Drady v. Canada (Minister
    of Health)
,
2008 ONCA 659, 270 O.A.C. 1;
McCracken
    v. Canadian National Railway Co.
, 2012 ONCA 445, 111 O.R. (3d) 745.  The
    jurisdiction of this court to hear the appeals was not raised in either case.
[3]

[22]

I
    do not think that the absence of a Rule 21.01(1)(b) motion is determinative on
    the jurisdiction question.  The appropriate appellate forum should be
    determined by the substance of the order made.  The fact that a motion judge
    dismissed an action in the absence of a motion under Rule 21.01(1)(b) may give
    rise to procedural fairness arguments on appeal.  Those arguments must,
    however, be made in the appropriate forum.

[23]

The
    language of the motion judges order could not be clearer.  The action against
    the Diocese was immediately dismissed.  If there is no power in s. 30 of the
CPA
to appeal the dismissal of the action against the Diocese to the Divisional
    Court, then under the terms of s. 6(1)(b) of the
CJA
, the appeal is to this court
.

[24]

The
    provisions in s. 30 of the
CPA
which direct appeals to the Divisional
    Court refer to an order refusing to certify a proceeding (s. 30(1)), an
    order certifying a proceeding as a class proceeding (s. 30(2)), and orders
    determining an individual claim (s. 30(6)-(11)).  None of the provisions that
    create appellate jurisdiction in the Divisional Court under s. 30 refer to
    orders dismissing an action.  A plain reading of s. 30 of the
CPA
does
    not give the Divisional Court the jurisdiction to hear appeals from orders
    dismissing claims even though the order is made in the context of a class
    proceeding motion.  Instead, s. 6(1)(b) of the
CJA
gives this court
    jurisdiction over this appeal.

[25]

My
    reading of the interaction between the rights of appeal peculiar to class
    proceedings created in s. 30 of the
CPA
and the more general rights of
    appeal in s. 6(1)(b) of the
CJA
is reinforced by the analysis in two
    cases in which this court has addressed that relationship.  Neither case,
    however, deals with the problem raised here.

[26]

In
Dabbs v. Sun Life Assurance Company of Canada
(1998), 41 O.R. (3d) 97
    (C.A.), a member of a class who was not a party to the class proceeding sought
    to appeal an order certifying an action as a class proceeding and approving a
    settlement agreement entered into between the representative plaintiff and the
    defendants.  The
CPA
limited any right of appeal to a party to the
    proceeding.  In holding that the appellant could not rely on s. 6(1)(b) of the
CJA
to give him a right of appeal, this court stated, at p. 102:

The intent of the Act [
CPA
] is clear that the rights of appeal to this court are
    conferred on parties, not class members.
A class member requires leave
    under s. 30(5) to act as a representative party for the purpose of bringing an
    appeal under s. 30(3).  If  a class member has a right of appeal under s.
    6(1)(b) of the
Courts of Justice Act
, that intent would be defeated.
    [Emphasis added.]

[27]

The
    result in
Dabbs
flows from a reading of the
CPA
as creating a
    specific right of appeal applicable to the circumstances before the court and
    limited to a party.  The court held that when a statute creates a specific right
    of appeal, another statute providing a more general right of appeal, like the
CJA
,
    cannot be used to create a different right of appeal than that set out in the
    specific legislation.

[28]

Dabbs
is consistent with the language of s. 6(1)(b) of the
CJA
.  Because
Dabbs
interpreted the relevant part of the
CPA
as creating a specific right
    of appeal applicable in the circumstances of the case and limited to parties, s.
    6(1)(b) could not be used to expand that right of appeal to entities who were
    not parties.
Dabbs
is distinguishable from this case because, for the
    reasons set out above, I do not read the appeal provisions in s. 30 of the
CPA
as speaking to an appeal from an order dismissing an action.

[29]

In
Locking v. Armtec Infrastructure Inc.
, 2012 ONCA 774, the court
    considered an appeal from an order granting certain plaintiffs carriage of a
    class action proceeding.  The court held that none of the appeal powers in s.
    30 of the
CPA
applied to an appeal from a carriage order.  The court stated,
    at para. 8:

Where the Act [
CPA
] does not specifically address the
    rights and avenues of appeal, s. 6(1)(b) of the
Courts of Justice Act
governs appeal to the Court of Appeal in class proceedings.

[30]

I
    agree with the above observation.  Of course, whether the Act does or does not specifically
    address rights and avenues of appeal will be a matter of statutory
    interpretation.

[31]

Obiter
    dicta
in
Locking
, at para. 10, also speaks directly to the issue
    raised on this appeal:

So, for example, an appeal in a class proceeding from an order
    striking out a statement of claim as disclosing no reasonable cause of action
    is appealable to the Court of Appeal.

[32]

In
    summary, the order as it relates to the Diocese is an order dismissing the
    action.  It is not an order granting or refusing certification.  Under the
    terms of s. 6(1)(b) of the
CJA
, the order dismissing the action
    against the Diocese is appealable to this court unless there is an appeal to
    the Divisional Court.  If there is an appeal to the Divisional Court, it must
    be found within the terms of s. 30 of the
CPA
.  None of the provisions
    in that section directing appeals to the Divisional Court have any application
    to an order dismissing the action.  Therefore, there is no appeal from that
    order to the Divisional Court.  The appeal is to this court.

[33]

Finally,
    I see no practical difficulties in holding that this court is the appropriate appellate
    forum.  Experience shows that in most cases in which the defendant intends to
    challenge the adequacy of the pleadings on a certification motion, an
    appropriate Rule 21 motion will be brought in conjunction with the
    certification motion.  If the Rule 21 motion is brought, everyone accepts that the
    appeal comes to this court.  My conclusion that the appeal still comes to this
    court even when there is no formal Rule 21 motion does nothing to complicate
    the appellate landscape.  The distinction between orders referable to
    certification, which is a procedural issue, and orders dismissing a claim is not
    difficult to make.  That distinction determines the appropriate appellate
    forum.

B.

THE MERITS OF THE APPEAL

(a)

The absence of a motion to dismiss

[34]

As
    indicated above, at para. 19, the motion judge had jurisdiction to dismiss the
    claim for failure to disclose a cause of action even absent a formal motion to
    dismiss.  Clearly, however, it would have been better had the Diocese brought a
    formal motion to dismiss under Rule 21.01(1)(b).  It would also have been
    better had the judge managing the proceedings required the Diocese to bring
    that motion upon being advised that the Diocese would take the position that
    the claim did not plead a proper cause of action against the Diocese.  A
    helpful example of the proper procedure is found in
Drady
.  The
defendants, who contended that the
    claim did not reveal a cause of action, with the permission of the case
    management judge, brought a Rule 21.01(1)(b) motion to be heard immediately
    before the certification motion by the same judge who was to hear the
    certification motion: see also
Kang v. Sun Life Assurance Company of Canada
,
    2013 ONCA 118, at paras. 25-27, affg 2011 ONSC 6335, 4 C.C.L.I. (5th) 86.

[35]

I
    am satisfied, however, that the appellants were not prejudiced by the Dioceses
    failure to bring a formal motion to dismiss.  There is no reason to think that
    the appellants arguments or the motion judges analysis and conclusion would
    have been any different had the Diocese brought that motion.

[36]

In
    holding that the appellants are not prejudiced by the absence of a formal
    motion, I do not ignore the appellants submission that they were not given a
    proper opportunity to amend their pleadings before the motion judge.  The
    merits of that submission, however, do not depend on whether there was a formal
    motion brought under Rule 21.01(1)(b).  The appellants have argued that they
    should have been given the opportunity to amend by the motion judge and that
    they can amend now if so required.  This court can fully address the merits of
    that argument.

(b)

The Claims against the Diocese

[37]

There
    are no facts at this stage of the proceeding, only allegations in the Amended
    Amended Statement of Claim (the Claim).  Those allegations are assumed to be
    true for present purposes:
R. v. Imperial Tobacco Canada Limited
, 2011
    SCC 42, [2011] 3 S.C.R. 45, at para. 34.

[38]

In
    the Claim, the appellants allege that the respondents Father Farnsworth and Father
    Haig founded Grenville Christian College in 1969.  They had been operating the
    school for about nine years when they were ordained as Anglican ministers in
    1977.  Father Farnsworth and Father Haig ran Grenville Christian College
    together until 1983 when Father Farnsworth became the sole headmaster.  He
    operated the school until 1997.  The appellants acknowledge that the Diocese
    has no liability for anything that occurred at the school before the ordination
    of Father Farnsworth and Father Haig.

[39]

The
    appellants, and the class members they would represent, were all students at
    Grenville Christian College at various times between 1973 and 1997.  They
    allege various forms of physical, psychological, emotional and spiritual abuse
    at the hands of Father Farnsworth, Father Haig and others at the school.

[40]

The
    appellants claim against the Diocese is founded in negligence and a breach of
    fiduciary duty.  The relevant allegations against the Diocese can be summarized
    as follows:

·

The Diocese is responsible for the training, ordination and
    supervision of Fathers Farnsworth and Haig (Claim, at para. 9).

·

The Diocese is affiliated with Grenville Christian College (Claim,
    at para. 9).

·

Following the ordination of Father Farnsworth and Father Haig in
    1977, they were licensed by the Bishop of Ontario and/or the Dioceses of
    Ontario to act as Anglican clergy at Grenville Christian College (Claim, at
    para. 18).

·

Following the ordination of Father Farnsworth and Father Haig,
    Grenville Christian College held itself out as an Anglican private school
    where children who attended would be taught in the Anglican faith and with
    Anglican values (Claim, at para. 22).

·

The Diocese was required to educate the Plaintiffs in accordance
    with Anglican faith and values (Claim, at para. 26).

[41]

In
    respect of the negligence claim, the appellants further allege that the Diocese
    breached its duty to the appellants by failing to:

·

undertake adequate investigation into the background of Father Farnsworth
    and Father Haig (Claim, at para. 33(k));

·

provide adequate education, training and supervision of Father
    Farnsworth and Father Haig (Claim, at para. 33(l)); and

·

ensure that the teachings and practices at Grenville Christian
    College promoted the Anglican faith and values (Claim, at para. 33(m)).

[42]

The
    appellants also allege that the Diocese knew or should have known of the
    misconduct of Father Farnsworth and Father Haig, and knew or should have known
    that as a consequence of the mistreatment, students would suffer significant
    sexual, physical, emotional, psychological and spiritual harm resulting in
    various forms of damage: Claim, at paras. 42, 43.

[43]

The
    pleadings alleging breach of fiduciary duty do not distinguish the Diocese from
    the other respondents.  Those pleadings allege that the students were entirely
    within the power and control of the Defendants: Claim, at para. 27.  The
    pleadings further allege that the respondents control over the students gave
    rise to a fiduciary obligation to the Plaintiffs consistent with the
    obligations of a parent: Claim, at para. 28.

(c)

The Duty of Care Analysis

[44]

The
    appellants main ground of appeal arises from the motion judges finding that
    on the facts as pleaded, the Diocese did not owe the appellants a duty of care.
    I will set the framework for my review of the motion judges reasons and the
    appellants arguments by describing the approach to be taken when deciding
    whether for the purposes of a claim in negligence a defendant owes a duty of
    care to a plaintiff.  The approach is well established in the case law and was
    recently examined in detail by this court in
Taylor v. Canada (Attorney
    General)
, 2012 ONCA 479, 111 O.R. (3d) 161.  The approach was applied by
    the motion judge and is not a matter of contention between the parties.  I can
    be brief.

[45]

The
    duty of care inquiry proceeds through two stages.  When the inquiry is made at
    the pleadings stage, the first stage involves a determination of whether the
    facts as pleaded disclose a sufficiently close relationship between the
    defendant and the plaintiff to establish a
prima facie
duty of care.  To
    answer this question, one must first decide whether the facts as pleaded bring
    the claim, either directly or by analogy, within a category of cases in which
    the courts have previously recognized a
prima facie
duty of care.  If
    the case falls within a recognized category of cases, the court will assume
    that a
prima facie
duty of care exists and move to the second stage of
    the duty of care inquiry.  If, however, the facts do not place the case within
    an established category, the court must determine whether a new duty of care
    should be recognized in the circumstances.  This determination is guided by the
    twin principles of foreseeability of harm and proximity of relationship.

[46]

If
    the court determines that the pleadings do not reveal a
prima facie
duty of care, the inquiry is over and the negligence claim must fail.  If,
    however, the court concludes that a
prima facie
duty of care has been
    made out, the court must go on to the second stage of the inquiry.  At that
    stage, the court asks whether there are any residual policy considerations that
    justify negating the duty of care and denying liability.

[47]

This
    case is not concerned with the second stage of the inquiry.  The motion judge
    did not reach that stage.  Nor do I.

(d)

The Motion Judges Reasons

[48]

The motion judge began, at paras. 64-67 of his reasons, by referencing
    and summarizing the well-known law surrounding the plain and obvious
    criterion against which the adequacy of the pleadings must be measured.  He
    then turned to the negligence allegation.

[49]

The
    motion judge first considered whether the claim fell within a recognized or
    analogous category.  He characterized the claim as the failure by the Diocese
    to use its connection with Grenville Christian College to intervene and stop
    the wrongdoing at the school: at para. 89.  The motion judge concluded that
    this claim was not within or analogous to any recognized class of negligence
    claims: at para. 89.

[50]

The
    motion judge then turned his attention to the questions of foreseeability and
    proximity.  He determined that neither existed on the facts as pleaded by the
    appellants.  With respect to foreseeability, he stated, at para. 91:

[I]n my opinion it is not foreseeable that the Diocese would
    have a duty of care to the students of the school based on the circumstances
    that the private school conducted Anglican religious services, described itself
    as Anglican, and had headmasters ordained as Anglican ministers nine years
    after they had established the school as an independently-owned and operated
    school.

[51]

In
    considering the relationship between the appellants and the Diocese, the motion
    judge stated, at para. 92:

The students have an indirect relationship with the Diocese.
    Moreover, the relationship or connection between the school and the Diocese,
    upon which the indirect relationship is built, is also remote, at least legally
    speaking.  The Diocese did not own or contract with the school.  There is no
    employee-employer relationship between the Diocese and Fathers Haig and
    Farnsworth.  The Diocese has no control over the schools operations.  There
    were no corporate or organizational connections.  The Diocese was not relied
    upon for operational advice, and no parent asked for or received advice from
    the Diocese about enrolling their children in the school.  The Diocese had no
    legal right or legal duty to control or intervene in the operation of the school.

[52]

The
    motion judge concluded his analysis of the negligence claim, at para. 97:

[I]t is not the case that the Diocese was involved in the
    management, operation, supervision and staffing of the school.  The most that
    can be said is that the Bishop of the Diocese ordained Fathers Haig and
    Farnsworth as Anglican ministers and Fathers Haig and Farnsworth performed
    Anglican services and celebrations at the school.  It is plain and obvious that
    the pleaded claim against the Diocese, even if factually proven, does not
    constitute a reasonable cause of action because there is no duty of care.

[53]

The
    motion judge next examined the breach of fiduciary duty claim.  After
    summarizing the essential elements of that cause of action and referring to the
    relevant parts of the Claim, the motion judge observed, at paras. 110-11:

The Diocese had no power or influence over the students. The
    students were not vulnerable or dependent upon the Diocese.  The Diocese did
    not have any direct contact with the students, and the Diocese did not take
    advantage or betray the students.  The Diocese did not undertake to act with
    loyalty to the students.

Indeed, for some students who had faith, other than Anglican,
    it is doubtful that there was any relationship at all between the student and
    the Diocese.

[54]

The
    motion judge concluded that the pleadings did not reveal a cause of action for
    breach of fiduciary duty.
[4]

(e)

The Parties Arguments

(i)

The appellants

[55]

The
    claims against the Diocese focus on the ordination of Father Farnsworth and Father
    Haig in 1977.  The appellants argue that the ordination and the licens[ing]
    of Father Farnsworth and Father Haig to act as Anglican clergy at Grenville Christian
    College created a duty of care owed by the Diocese to all students who attended
    the school after the ordination in 1977.  The appellants contend that the duty
    extended to the proper training and supervision of Father Farnsworth and Father
    Haig, as well as to ensuring that the students received an education that
    accorded with the Anglican faith and values.

[56]

The
    appellants submit that the case law has recognized that a diocese owes a duty
    of care to persons who, by virtue of a task or responsibility assigned to a
    priest by a diocese, come under the influence, direction or authority of that
    priest.  The appellants referred to several cases in which a diocese has been held
    liable in negligence to victims who were abused by priests in that diocese.  The
    appellants cite these as examples of the category of case into which they
    contend these pleadings put this case.  The appellants argue that on a proper
    approach to the duty of care analysis, the motion judge should have found that this
    case fell within an established category and thus a
prima facie
duty
    of care existed.

[57]

Alternatively,
    the appellants argue that if the claim does not fall within a category of cases
    in which a duty of care has been recognized, the facts as pleaded demonstrate
    sufficient foreseeability of harm and proximity between the Diocese and the
    appellants to warrant a finding of a duty of care, or at least a finding that
    it was not plain and obvious that no such duty existed.

[58]

The
    breach of fiduciary duty claim, like the negligence claim, relies heavily on
    the ordination of Father Farnsworth and Father Haig and their licens[ing] to
    serve as Anglican clergy at Grenville Christian College.  The appellants
    contend that on the facts as pleaded, Father Farnsworth and Father Haig were in
    a fiduciary relationship with the students and that the Dioceses power to
    supervise and direct Father Farnsworth and Father Haig placed the Diocese in
    that same relationship with the students.  The appellants further submit that
    the Dioceses licensing of Father Farnsworth and Father Haig to act as
    Anglican clergy at Grenville Christian College constituted an implied
    undertaking to the students by the Diocese that it would properly train,
    monitor and supervise Father Farnsworth and Father Haig.  The appellants argue
    that the Diocese breached that undertaking to the appellants.

(ii)

The Diocese

[59]

The
    Diocese responds to the appellants submissions primarily by relying on the
    reasons of the motion judge.  The Diocese submits that the case law does not
    establish a category of cases recognizing a duty of care owed by a diocese to
    persons harmed by priests ordained by and working within the diocese.  The
    Diocese contends that the cases relied on by the appellants involve fact
    situations in which the relationship between the diocese and the priest was
    very different than the relationship alleged in the appellants pleadings.  The
    Diocese argues that the duty of care established in those cases flowed from the
    nature of the relationship, not from the mere fact that the priests were
    ordained by and worked in the diocese.

[60]

The
    Diocese contends that the motion judge properly identified foreseeability and proximity
    as the principles to guide his duty of care analysis.  The Diocese, relying
    particularly on the proximity analysis, submits that the motion judge came to
    the right conclusion.

[61]

Insofar
    as the breach of fiduciary duty claim is concerned, the Diocese emphasizes that
    the appellants did not plead any material facts capable of supporting the bald
    assertions in the Claim.  Nor, according to the Diocese, do the appellants
    distinguish in their breach of fiduciary duty claim between the Diocese and the
    other respondents, despite the obviously very different relationship that the
    other respondents had with the appellants and other students.  The Diocese
    asserts that the mere ordaining of Father Farnsworth and Father Haig as clergy
    could no more create a duty of care to the students, much less a fiduciary
    relationship, than could the Law Societys licensing of a lawyer create a duty
    of care or fiduciary relationship between the Law Society and subsequent
    clients of the lawyer: see
Edwards v. Law Society of Upper Canada
, 2001
    SCC 80, [2001] 3 S.C.R. 562.

(f)

Analysis

(i)

The negligence claim

[62]

Liability
    in negligence is premised in part on the existence of a duty owed by the
    defendant to the plaintiff to take reasonable care in the circumstances.
    Absent that duty, there can be no liability for negligent conduct: see
Taylor
,
    at para. 65.

[63]

If,
    even on a generous reading of the material facts as pleaded by the plaintiff,
    the defendant could not be found to owe a duty of care to the plaintiff, the
    pleading must be struck subject to allowing the plaintiff an opportunity to
    amend that pleading: see
Eliopoulos (Litigation Trustee of) v. Ontario (Minister
    of Health and Long-Term Care)
(2006), 82 O.R. (3d) 321 (C.A.), at paras.
    8ff;
Cooper v. Hobart
,
2001 SCC 79, [2001] 3 S.C.R. 537, at paras. 21ff;
Odhavji Estate v.
    Woodhouse
, 2003 SCC 69, [2003] 3
    S.C.R. 263, at paras. 14ff; and
Imperial Tobacco Canada Limited
, at paras. 17ff
.

[64]

I
    begin with the appellants submission that their claim falls within an established
    class of cases in which a duty of care has been recognized.  The appellants
    refer to several cases in which a diocese was held liable in negligence for its
    failure to prevent abuse by priests who were working under the auspices of the
    diocese:
John Doe v. Bennett
, 2002 NFCA 47, 218 D.L.R. (4th) 276,
    affd 2004 SCC 17, [2004] 1 S.C.R. 436;
Swales v. Glendenning
(2004),
    237 D.L.R. (4th) 304 (Ont. S.C.); and
W.K. v. Pornbacher
(1997), 32
    B.C.L.R. (3d) 360 (S.C.).  None of the cases relied on by the appellants
    engaged in any duty of care analysis, although the courts clearly found a duty
    of care since they found the diocese liable in negligence.

[65]

I
    do not read these cases as broadly as do the appellants.  In my view, those
    cases do not create a category of cases recognizing a duty of care owed in all
    circumstances by a diocese to persons who are abused by priests ordained by and
    working in the diocese.  In the cases relied on by the appellants, the
    relationship between the diocese and the priest went well beyond ordination and
    assignment of the priest.  For example, in
John Doe
(S.C.C.), at para.
    15, the bishop (found to be legally synonymous with the diocese) was
    responsible for the direction, control and discipline of priests in the
    diocese.  This very broad authority over the priest who perpetrated the abuse,
    combined with the bishops knowledge of the abusive conduct, was held to
    justify a finding of negligence against the diocese.

[66]

In
Swales
, at paras. 207-8, the diocese acknowledged that it owed a duty
    of care to the victims, but argued that it had not breached that duty.  The
    trial judge, relying primarily on the location where the abuse had occurred (in
    the priests room in the actual seminary), concluded that the conduct ought to
    have caused the diocese to appreciate the risk of wrongdoing and make
    appropriate inquiries.  The combination of the acknowledged duty of care and the
    failure by the diocese to make inquiries when fixed with knowledge of conduct
    that did not conform to accepted practices was sufficient to impose liability
    in negligence.

[67]

In
W.K.
, at para. 54, the trial judge found that the relationship between
    the diocese and the priest had all of the common law indicia of the
    employer/employee relationship.  Given that finding, it is hardly surprising
    that there was little dispute that the Bishop owed a duty of care to the young
    parishioner who was assaulted by the priest.

[68]

In
    my view, the cases relied on by the appellants do not demonstrate that the relationship
    of a diocese to its priests automatically creates a duty of care owed by the
    diocese to persons who engage with those priests.  Rather, the cases
    demonstrate that the existence of any duty must be determined by reference to
    the specific facts of the case, particularly the nature of the relationship
    that exists between the diocese, the priests and those affected by the conduct
    of the priests.  The impact of the relationship on the existence of any duty of
    care owed by a diocese to those harmed by priests in that diocese must be examined
    using the first principles of foreseeability of harm and proximity of
    relationship.

[69]

The
    concepts of foreseeability of harm and proximity are used to characterize the
    nature of the relationship between a plaintiff and a defendant for the purpose
    of determining whether that relationship gives rise to a duty of care.  In
Imperial
    Tobacco Canada Limited
, at para. 41, McLachlin C.J. stated:

Proximity and foreseeability are two aspects of one inquiry
    the inquiry into whether the facts disclose a relationship that gives rise to a
prima facie
duty of care at common law.  Foreseeability is the
    touchstone of negligence law.  However, not every foreseeable outcome will
    attract a commensurate duty of care.  Foreseeability must be grounded in a
    relationship of sufficient closeness, or proximity, to make it just and
    reasonable to impose an obligation on one party to take reasonable care not to
    injure the other.

[70]

The
    motion judge used foreseeability in two different ways in his reasons.  He
    referred to foreseeability of harm to the appellants (at paras. 81, 90), but he
    also referred to foreseeability of the existence of a duty of care (at paras.
    91-92).  Only foreseeability of harm to the plaintiff is relevant to the duty
    of care inquiry:
Hill v. Hamilton Wentworth Regional Police Services
,
    2007 SCC 41, [2007] 3 S.C.R. 129, at para. 22.

[71]

The
    Claim contains two allegations against the Diocese that are germane to
    foreseeability:

·

The Diocese was aware that Father Farnsworth and Father Haig were
    adherents of a religious group known as the Community of Jesus and followed its
    teachings and practices at Grenville Christian College (Claim, at paras. 19-21,
    30); and

·

The Diocese was aware of or should have been aware of the misconduct
    of the individual respondents and staff at Grenville Christian College, but
    took no steps to report the abuse to appropriate authorities or parents (Claim,
    at para. 42).

[72]

The
    first allegation does not assist the appellants in establishing foreseeability
    of harm.  The pleadings contain no description of the teachings or practices of
    the Community of Jesus.  Without more, the allegation in the pleading adds
    nothing.

[73]

The
    allegation that the Diocese knew or should have known of the ongoing abuse at
    the school goes directly to foreseeability of harm to students at the school.
    The pleading is, however, devoid of any material facts substantiating the
    allegation that the Diocese knew or ought to have known of the abuse.  A bald
    assertion of foreseeability cannot suffice to establish foreseeability for the purposes
    of the duty of care inquiry.  The material facts upon which the assertion that
    the Diocese knew or ought to have known should be pleaded.

[74]

In
    any event, even if the foreseeability pleading could be cured by pleading
    material facts to substantiate the allegation, the pleading also fails to
    establish sufficient proximity in the relationship between the Diocese and the
    appellants to warrant the imposition of a duty of care.

[75]

The
    pleading does not allege any direct relationship between the Diocese and the
    appellants.  The appellants do not plead that the Diocese made any
    representations or did anything that the appellants in any way relied on at any
    time either before or while they were students at Grenville Christian College.
    Indeed, the pleadings do not allege any conduct of any kind by the Diocese
    toward the appellants, or any contact in any way between the Diocese and the
    appellants or their parents.  The absence of any direct relationship between a
    plaintiff and a defendant is certainly not determinative of the existence of a
    duty of care.  It is, however, an important factor which can point strongly
    away from a finding of proximity:
Hill
, at para. 30
.

[76]

Not
    only does the pleading not allege any direct relationship between the Diocese
    and the appellants, it says virtually nothing about any relationship between
    the Diocese and Grenville Christian College.  There is no allegation that the
    Diocese had any control over or involvement with the schools property,
    finances, staff, enrollment, curriculum or day-to-day management.  Nor does the
    pleading allege a more general supervisory power as might reside in a Board of
    Governors.  The Claim pleads only an undefined affiliation with Grenville
    Christian College (at para. 9), and a licens[ing] of Father Farnsworth and
    Father Haig to act as Anglican clergy at the school (at para. 18).  Neither
    allegation speaks to any supervisory authority over the operation of the
    school.  Upon reading the pleadings, one is left wondering what exactly, if
    anything, the Diocese had to do with the operation of the school.

[77]

Similarly,
    the pleadings do not say much about the relationship between the Diocese on the
    one hand, and Father Farnsworth and Father Haig on the other insofar as the
    operation of Grenville Christian College is concerned.  There is no allegation
    of anything approaching an employer/employee relationship.  There is no
    allegation that the Diocese had any power to dismiss or otherwise discipline Father
    Farnsworth or Father Haig in respect of their operation of the school.  There is
    no allegation that the ordination of Father Farnsworth and Father Haig changed
    anything about the operation of Grenville Christian College.

[78]

For
    the reasons set out above, I agree with the conclusion of the motion judge that
    the relationship between the Diocese and the appellants was not such as to
    impose a duty of care on the Diocese.  The negligence claim was properly
    struck.

(ii)

The fiduciary duty claim

[79]

In
    my view, if, as I would hold, the motion judge was correct in concluding that
    the facts as pleaded did not support a finding that the Diocese owed a duty of
    care to the appellants in negligence, it must follow that the fiduciary duty
    claim fails.  If the facts as pleaded do not demonstrate sufficient proximity
    to warrant the imposition of a duty of care, I do not see how they could
    warrant the finding of a fiduciary relationship.

[80]

There
    can be no fiduciary relationship unless the alleged fiduciary is in a position
    to exercise unilaterally some discretion or power that will affect the putative
    beneficiarys legal or practical interests: see
Galambos v. Perez
,
2009 SCC 48, [2009] 3 S.C.R. 247, at
    para. 83
.  The only allegation in the Claim that touches on this
    component of a fiduciary duty claim is found at para. 27:

The Plaintiffs state that, at all material times, the children
    who attended the school were entirely within the power and control of the Defendants,
    and were subject to the unilateral exercise of the Defendants power or
    discretion.

[81]

Unlike
    with the other respondents, there is nothing in the rest of the Claim that
    supports the conclusory statement in para. 27 as it relates to the Diocese.
    There are no material facts pleaded to suggest that the appellants were in any
    way under the power or discretion of the Diocese while attending Grenville
    Christian College.  The pleading fails to show any cause of action for breach
    of fiduciary duty against the Diocese.

(iii)

Should the appellants be given an opportunity to amend their pleading?

[82]

It
    does not appear from the motion judges reasons that he considered the
    possibility of an amendment of the pleadings and it is not clear that he was
    asked to consider an amendment.  During oral argument in this court, counsel
    for the appellants indicated that the appellants could and would, if necessary,
    amend their pleadings.  However, counsel did not put forward any additional
    material facts, other than those already pleaded, that could form the basis of
    a negligence or fiduciary duty claim against the Diocese.  No proposed amended pleading
    was placed before the court.

[83]

This
    proceeding is five years old and is still at the pleadings stage.  The
    weaknesses in the statement of claim as it relates to the action against the
    Diocese have been an issue since the commencement of the certification
    proceedings.  The appellants have had ample opportunity to address those
    weaknesses and put forward any amendments available to them that would cure the
    deficiencies identified in the pleadings.  No amendments have been offered.
    Absent any concrete proposed amendments, I see no point in extending the
    proceedings against the Diocese further by allowing leave to amend.  I would
    not grant leave to amend.

IV

section 6(2) of the
CJA

[84]

As
    indicated above, the court determined, after hearing oral argument, that it
    would not exercise its jurisdiction under s. 6(2) of the
CJA
even if
    it had jurisdiction to hear the appeal from the dismissal of the action against
    the Diocese.  These are our reasons for refusing to exercise that jurisdiction.

[85]

Section
    6(2) of the
CJA
provides:

The Court of Appeal has jurisdiction to hear and determine an
    appeal that lies to the Divisional Court  if an appeal in the same proceeding
    lies to and is taken to the Court of Appeal.

[86]

Section
    6(2) recognizes that multiple appeals to different courts in the same proceeding
    can potentially generate inconsistent results and will inevitably increase the
    costs of litigation to the parties and impair the efficient use of judicial
    resources.  In most cases, especially as here when all parties agree, the
    interests of justice will favour joinder.

[87]

The
    jurisdiction to join appeals in s. 6(2) is, however, discretionary and not
    mandatory.  There will be cases when factors relevant to the administration of
    justice are sufficiently strong to override the wishes of the parties to the appeal
    and any efficiencies achieved by joinder.  This is one such case.

[88]

First
    of all, I see little to be gained by joinder.  The Divisional Court will no
    doubt await the result of this appeal.  These reasons address only the adequacy
    of the pleadings against the Diocese, an entirely distinct issue from that
    arising out of the refusal to certify the action against the other
    respondents.  Just as this court had no need to address the certification
    issues on this appeal, the Divisional Court will have no need to address the
    adequacy of the pleadings as against the Diocese.  Whatever combination of
    results might have occurred on the two appeals, there is no risk of
    inconsistent results and very little overlap in the matters to be addressed on
    the two appeals.

[89]

Lastly,
    and most importantly, I think the very different nature of the issues raised on
    the two appeals contraindicates joinder.  The appeal to this court from the
    dismissal of the claim against the Diocese raises a straightforward pleadings
    issue.  That issue, while it arises in a certification proceeding because of s.
    5(1)(a) of the
CPA
, is not a certification issue in the sense that it
    engages any law or procedure particular to certification of class proceedings.
    The issue before this court could just as easily have arisen, and usually does
    arise, in litigation that has nothing to do with class proceedings.

[90]

The
    issues raised on the appeal brought against the other respondents do engage the
    very core of the certification process and the judicial management of that
    process.  Those nuts and bolts issues require evaluations best made by those with
    experience in the practical management of class action proceedings.

[91]

Section
    30 of the
CPA
directs appeals granting or refusing certification to
    the Divisional Court.  Members of the Divisional Court, who as Superior Court
    judges also preside over class action proceedings, have experience in class
    action matters which members of this court do not have.  By directing appeals
    in respect of certification to the Divisional Court, I think the legislature
    must be taken as having determined that the practical experience of those
    judges is important in resolving the difficult and often unique problems that
    arise in the context of certification applications.  The legislature seeks to
    take advantage of that expertise by directing initial appeals to the Divisional
    Court while maintaining this courts ultimate jurisprudential responsibility by
    allowing a further appeal to this court with leave:
CJA
, s. 6(1)(a).

[92]

Joinder
    of an appeal properly taken to the Divisional Court which raises
    certification-related issues, with an appeal in this court that has nothing to
    do with issues unique to certification, would circumvent the clear legislative
    choice as to the appropriate appellate forum reflected in s. 30 of the
CPA
.

[93]

The
    parties did not make out a case for joinder of these appeals.

V

conclusions

[94]

For the reasons above, I would dismiss the appeal from the order dismissing
    the action against the Diocese.  The remainder of the appeal has been
    transferred to the Divisional Court.

[95]

The parties have not had an opportunity to make submissions about
    costs.  The appellants should file written submissions of no more than 6 pages
    within 20 days of the release of these reasons.  The Diocese and the other
    respondents may file submissions of no more than 3 pages within 30 days of the
    release of these reasons.

RELEASED:  DD  MAR 08 2013

Doherty J.A.

I agree R.A. Blair J.A.

*
OConnor A.C.J.O. took no part in the judgment.

[1]
Actions against Betty Farnsworth (the spouse of Father Farnsworth) and Mary
    Haig (the spouse of Father Haig) were discontinued:
Cavanaugh v. Grenville
    Christian College
, 2012 ONSC 2398.

[2]
This courts decision dismissing the appeal is found at (2003), 167 O.A.C. 277
    (C.A.).  The jurisdictional issue is not discussed.

[3]
This court has also heard an appeal from a dismissal of an action for failure
    to disclose a cause of action made in the context of a certification
    application when there was no Rule 21.01(1)(b) motion: see
Attis v. Canada
    (Minister of Health)
, 2008 ONCA 660, 93 O.R. (3d) 35.  Recently, in
Brown
    v. Canada (Attorney General)
, 2013 ONCA 18, the motion judge purported to
    conditionally certify a class proceeding subject to the appropriate amendments
    to the statement of claim so that it would allege a cause of action.  The
    defendant had brought a Rule 21.01(1)(b) motion to dismiss the action.  An
    appeal was taken to the Divisional Court under s. 30 of the
CPA
, and
    then to this court with leave.  Jurisdictional questions were not raised in
    either
Attis
or
Brown
.

[4]
The motion judge also dismissed what he described as a vicarious liability
    claim against the Diocese: at paras. 99-105.  It is not clear to me that there
    was a freestanding vicarious liability claim against the Diocese: see Claim, at
    para. 35.  In any event, the appellants have not relied on a vicarious
    liability claim in advancing the appeal and I will not address that part of the
    motion judges reasons.


COURT OF APPEAL FOR ONTARIO

CITATION:
Enbridge Gas Distribution
    Inc. v. Froese, 2013 ONCA 131

DATE: 20130304

DOCKET: M42141

Gillese J.A. (In Chambers)

BETWEEN

Enbridge Gas Distribution Inc.

Plaintiff (Responding Party)

and

David Froese a.k.a. David Frose

Defendant (Moving Party)

Peter B. Cozzi, for the moving party

Jennifer Heath, for the responding party

Heard in writing: February 28, 2013

On motion for an extension of time to file a Notice of
    Motion for Leave to Appeal the order of the Divisional Court (DiTomaso J.)
    dated November 14, 2012.

GILLESE J.A.:

THE MOTION BEFORE THE COURT

[1]

David Froese a.k.a. David Frose (Mr. Froese or the moving party)
    wants to appeal the order of the Divisional Court dated November 14, 2012 (the
    Order).  He does not have a right to such an appeal, as leave to appeal is
    required.

[2]

As a first step in the process, Mr. Froese has to file a Notice of
    Motion for leave to appeal to this court (the Notice).  The deadline for
    filing the Notice has passed.  Consequently, he brings a motion, in writing, seeking
    an extension of time to file the Notice.

BACKGROUND

[3]

Mr. Froese is a contractor, a long-time property maintenance manager at
    a small landscaping business, and a friend of Mr. Massey.

[4]

In November of 2008, Mr. Massey called Mr. Froese and asked for his help.
    The septic tank system at his property in Holland Landing, Ontario (the property)
    was leaking and causing a sewage backup into his home.

[5]

Mr. Froese agreed to help.  He went to the property and spoke with Mr.
    Massey and a neighbour about the lot line, specifically where the property line
    ended.  It appears that he made these inquiries because he believed that gas
    pipes are not located on private property.  On that assumption, so long as he
    dug only on private property, he thought he could not hit a gas pipe.

[6]

Mr. Froese also visually inspected the utility lands and, digging by
    hand, located the septic pipe coming from the tank leading to the header pipe.

[7]

Mr. Froese then began using a mini-excavator to uncover the leaking
    septic tank. After digging out two or three scoops of soil, he heard a loud
    rush of air. He had ruptured a gas main belonging to Enbridge Gas distribution
    Inc. (Enbridge).

[8]

Mr. Froese did not call for a utility locate before digging, a fact that
    he acknowledged before trial.

[9]

Enbridge brought an action in Small Claims Court in which it sought to
    recover from Mr. Froese the cost of repairs to the gas main.  Its claim was
    framed in negligence.  The amount of the claim was $7,144.65.

[10]

At
    trial, Mr. Froese admitted that he failed to call for a locate and that a
    locate could have prevented the incident.

[11]

At
    first instance, Enbridge lost.  The trial judge held that Mr. Froese was not
    negligent.  He assessed Enbridges damages at $4,831.30.

[12]

Enbridge
    appealed only the question of liability to the Divisional Court.  It was
    successful.

[13]

In
    a decision dated November 14, 2012, DiTomaso J. of the Divisional Court found
    that the trial judge erred in fact and in law (the Decision.)  He held that
    the trial judge made a palpable and overriding error when he found that a
    utility locate call would not have avoided the incident.  He further held that
    but for Mr. Froeses failure to make the utility locate call, the incident
    would never have occurred.

THE ISSUE

[14]

This
    motion raises a single issue: ought the court grant an extension of time to
    file the Notice?

ANALYSIS

The Test for Extending Time

[15]

The
    test on a motion to extend time is well-settled.  The overarching principle is
    whether the justice of the case requires that an extension be given.  Each
    case depends on its own circumstances, but the court is to take into account
    all relevant considerations, including:

(a)

whether the moving party formed a
bona fide
intention to appeal
    within the relevant time period;

(b)

the length of, and explanation for, the delay in filing;

(c)

any prejudice to the responding parties, caused, perpetuated or
    exacerbated by the delay; and

(d)

the merits of the proposed appeal.

See
Rizzi v. Mavros

(2007), 85 O.R.
    (3d) 401 (C.A.).

[16]

In
    my view, lack of merit alone can be a sufficient basis on which to deny an
    extension of time, particularly in cases such as this where the moving party
    seeks an extension to file a notice of leave to appeal, rather than an extension
    of time to file a notice of appeal: see
Miller Manufacturing and
    Development Co. v. Alden
, [1979] O.J. No. 3109 (C.A.), at para. 6.

The
    Principles Applied

[17]

The
    focus of the submissions of both parties was on the merits of the proposed
    appeal.  Although the record contains very little on the length of the delay
    and reasons therefore, it is clear that the moving party had the requisite
    intention and attempted to file within time.  Further, I see nothing in the
    record to suggest that Enbridge will suffer prejudice, apart from the
    inevitable cost associated with permitting the litigation to carry on.  Accordingly,
    I will say nothing more on those matters.

[18]

I
    turn, therefore, to a consideration of the merits of the proposed appeal.

[19]

It
    is important to begin this discussion by recalling that the decision which the
    moving party seeks to appeal is one rendered by the Divisional Court exercising
    its appellate jurisdiction.  In
Sault Dock Co. v. Sault Ste. Marie (City)
,
    [1972] O.J. No. 2069, at para. 7, this court explained that, as a general rule,
    such decisions of the Divisional Court are intended to be final.  A review of such
    a decision, by the Court of Appeal, is an exception to this general rule.

[20]

Before
    granting leave, this court must be satisfied that the proposed appeal presents
    an arguable question of law, or mixed law and fact, requiring consideration of
    matters such as the interpretation of legislation; the interpretation,
    clarification or propounding of some general rule or principle of law; the
    interpretation of a municipal by-law where the point in issue is a question of
    public importance; or the interpretation of an agreement where the point in
    issue involves a question of public importance: see
Sault Dock Co.
at
    para. 8.

[21]

At
    para. 9 of
Sault Dock Co.
,
the court adds that it will also
    consider cases where special circumstances make the matter sought to be brought
    before it a matter of public importance or would where it appears that the interests
    of justice require that leave should be granted.

[22]

Finally,
    at para. 10 of
Sault Dock Co.
,
this court observes that there
    may be cases in which there is clearly an error in the judgment or order of the
    Divisional Court such that the Court of Appeal might grant leave to correct the
    error.

[23]

If
    Mr. Froese were given leave to appeal, he would argue that the trial judges
    decision was correct in law and fact.  He would contend that the Divisional
    Court erred by effectively retrying the case and substituting its findings of
    fact for those of the trial judge.  He would further contend that the
    Divisional Court made factual errors relating to such things as the likely
    accuracy of the utility locate and the location of the damaged gas pipeline.

[24]

In
    my view, the proposed appeal is largely fact based.  I do not see that it
    raises an arguable question of law, and certainly not one of the sort
    contemplated by para. 8 of
Sault Dock Co.

Nor does the
    purported appeal involve a special circumstance or a matter of public
    importance.   The questions it would raise are of importance only to the
    parties, not to the public generally.  Furthermore, I see nothing in the
    purported factual errors.

[25]

Accordingly,
    the moving party has not established that the justice of the case requires that
    an extension of time for filing of the Notice should be given.

DISPOSITION

[26]

For
    these reasons, the motion is dismissed.  If the parties are unable to resolve
    the matter of costs, they may make brief written submissions on the same within
    ten days of the date of release of these reasons.

Released: March 4, 2013 (E.E.G.)

E.E. Gillese
    J.A.