COURT OF APPEAL FOR ONTARIO

CITATION: 1711811 Ontario Ltd.
    (AdLine) v. Buckley Insurance Brokers Ltd., 2014 ONCA 125

DATE: 20140218

DOCKET: C57291

MacPherson, Gillese and Hourigan JJ.A.

BETWEEN

1711811 Ontario Ltd. and Olga Maria Paiva,
    Operating as AdLine

Applicants (Respondents)

and

Buckley Insurance Brokers Ltd., Robert Buckley
    and 1730849 Ontario Ltd.

Respondents (Appellants)

Jonathan L. Rosenstein, for the appellants

Sara J. Erskine, for the respondents

Heard: January 22, 2014

On appeal from the order of Justice Susan G. Himel of the
    Superior Court of Justice, dated May 31, 2013, with reasons reported at 2013
    ONSC 1512.

Gillese
    J.A.:

[1]

The order that spawned this appeal is a very restrictive permanent
    injunction relating to the use of a laneway.  In my view, it was an error to
    have ordered a permanent injunction.  Consequently, I would allow the appeal.

BACKGROUND

[2]

AdLine is a t-shirt printing business in Newmarket, Ontario.  Olga Maria
    Paiva owns the business and operates it from a building located at 255 Main
    Street South. The building is owned by 1711811 Ontario Ltd.  In these reasons,
    I will refer to AdLine, Olga Maria Paiva and 1711811 Ontario Ltd. collectively
    as AdLine or the Respondents.

[3]

Robert Buckley owns Buckley Insurance Ltd., which operates out of a
    building located at 247 Main Street South in Newmarket.  1730849 Ontario Ltd
    owns the building.  I will refer to Robert Buckley, Buckley Insurance Ltd. and
    1730849 Ontario Ltd. collectively as Buckley or the Appellants.

[4]

AdLine and Buckley are neighbours. They share the use of a laneway that
    runs at the rear of their buildings.  The laneway provides both with shipping
    access.

[5]

Buckley purchased the property on which the laneway is located in 2008.
    AdLine has a registered right of way over the laneway.

[6]

The right of way, which has existed since 1957, gives AdLine:

a free and uninterrupted right-of-way in common with all other
    persons entitled thereto for persons, animals and vehicles, in, over, along and
    upon that certain parcel of land.

[7]

The laneway runs across Buckleys property.  A portion of it passes beneath
    a ceiling that connects the buildings east and west wings.  The laneway then
    feeds into a loading bay located on the side of AdLines building. The loading
    bay is AdLines only point of access for items that it sends and receives.

[8]

In May 2009, Buckley notified AdLine that it intended to renovate the
    laneway because it was in a state of disrepair.

[9]

AdLine voiced concerns that the laneway would be obstructed during the renovation
    period, and that the clearance height of the underpass would be affected.

[10]

On
    May 15, 2009, AdLine brought an application (the Application) seeking, among
    other things, a declaration of its rights to the laneway and injunctive relief
    to prevent Buckley from constructing on, or obstructing, the laneway.

[11]

Before
    the Application was heard, the parties arrived at an agreement that resolved
    their dispute.  On May 20, 2009, Pollak J. issued a consent order based on that
    agreement (the Consent Order).

[12]

Under
    the terms of the Consent Order, Buckley would not block vehicular access during
    business hours and would give AdLine advance notice when such blockage was
    unavoidable.  The Consent Order expressly dismissed the Application.  It did not
    contain an expiry date.

[13]

The
    renovations to the laneway were completed in 2009.

THE CONTEMPT MOTION

[14]

The
    conflict between the parties subsided in the period following the Consent
    Order. However, in 2011, Buckley began further construction. Disputes again
    arose between the parties regarding the laneway. AdLine complained that Buckley
    was: obstructing its use of the laneway by allowing vehicles to park in it; leaving
    ajar the metal shipping doors that open into the laneway; engaging in
    construction that changed the clearance height of the underpass and the width
    of the laneway; and, failing to provide adequate notice of interruptions to
    vehicular access in the laneway.

[15]

AdLine
    filed a notice of motion dated October 3, 2012, within the Application
    proceeding, asking the court to find Buckley in contempt of the Consent Order and
    to grant mandatory injunctive relief beyond the terms of the Consent Order
    (the Contempt Motion).

[16]

Buckley
    responded with affidavit evidence which painted a dramatically different
    version of events.  The Buckley affidavit evidence showed that Buckley had acted
    reasonably throughout and that it was AdLine who acted unreasonably in respect
    of the laneway.

[17]

In
    his affidavit, Robert Buckley testified, among other things, that other
    businesses had a right to use the laneway for loading and unloading.  He said
    that he had had no difficulty with these third-party businesses, however, the
    third parties had experienced many difficulties with AdLines demands in
    respect of the laneway.  One such third party was a florist that operated at
    245 Main Street South in Newmarket.  Affidavits from the florist and one of its
    suppliers, attached to the Buckley affidavit, supported Buckleys version of
    events.

[18]

In
    his affidavit, Mr. Buckley also responded to AdLines allegations in the
    Contempt Motion.  He set out the steps that had been taken to accommodate
    AdLine during the construction period and attached supporting affidavit
    evidence to that effect from those involved in the construction.  He also gave
    evidence about his employees need to use the laneway to access their cafeteria
    and fitness facility, as well as the public parking areas at the rear of the
    building.  He denied that the opening of the metal shipping doors materially
    impedes access to the laneway.

[19]

On
    November 20, 2012, in response to what it perceived to be persistent
    obstruction of the laneway, AdLine brought an
ex parte
motion for interim
    injunctive relief and to set an expedited hearing date for the Contempt Motion.
    Buckleys counsel was notified.

[20]

The
    parties appeared before Low J. on November 21, 2012.  The matter was adjourned
    to December 10, 2012.

[21]

On
    December 10, 2012, Stinson J. ordered interim injunctive relief, pending
    argument on the Contempt Motion, and fixed February 27, 2013, as the hearing
    date for that motion (the Interim Order).

[22]

Under
    the Interim Order, Buckley was required to provide AdLine with reasonable,
    unimpeded access to the laneway.  As well, Buckley was ordered to ensure that
    none of its employees or those under its control parked on the laneway, with a 30-minute
    exemption being made for vehicles actively delivering goods to, or receiving
    goods from, Buckleys premises.  In the event that a vehicle parked in the
    laneway in violation of the Interim Order, AdLine was to notify Buckley and
    Buckley was to take immediate steps to have the offending vehicle moved or
    removed.  If that did not occur, AdLine was given the power to tow the offending
    vehicle, with a right to recover that expense from Buckley.  Further, Buckleys
    employee entrance doors and shipping doors were required to remain closed when
    not in active use.

THE DECISION BELOW

[23]

The
    order under appeal flowed from three endorsements made by the motion judge.  In
    light of the issues raised on appeal, it is necessary to consider all three endorsements.

The First Endorsement

[24]

In
    reasons dated March 12, 2013 (the First Endorsement), the motion judge allowed
    the Contempt Motion in part; she dismissed that part of the motion seeking to
    have Buckley found to be in contempt, but she granted that part in which AdLine
    sought further injunctive relief.

[25]

The
    motion judge refused to make a finding of contempt because she was not
    satisfied beyond a reasonable doubt that the Consent Order was in effect during
    the most recent bout of conflict between the parties.  In her view, the Consent
    Order was a response to the specific circumstances concerning Buckleys proposed
    renovations to the laneway in 2009.  As she noted, if she were unable to know
    with certainty whether the Consent Order was operative after those renovations
    had been completed, how could Buckley?  And if there were no order in place,
    then contempt could not be found.

[26]

In
    relation to the order for further injunctive relief, for reasons that will
    become clear, it is necessary to consider the motion judges reasons in more
    detail.

[27]

At
    the outset of the First Endorsement, the motion judge recited that through the
    motion, AdLine sought a finding that Buckley was in contempt and a mandatory
    order concerning the use of the right of way (at para. 1). In the section
    entitled Positions of the Parties, the motion judge said that AdLine sought
    permanent injunctive relief (at para. 9).  The motion judge then applied the
    familiar three-part test for interlocutory injunctions set out in
RJR-MacDonald
    Inc. v. Canada (Attorney General)
, [1994] 1 S.C.R. 311 (at para. 25).

[28]

The
    motion judge concluded that she would grant AdLines request for interim and
    interlocutory injunctive relief (at para. 28).  In her view, such relief was
    needed to protect AdLines property right  a right of way existing since 1957
    from interference.

[29]

The
    motion judge recognized that Buckley also requires the use of the laneway for
    its business. In her view, this justified temporary blockages of the laneway for
    short periods of time.

[30]

The
    motion judge then made an order with a series of detailed terms respecting the
    use of the laneway.  The specific terms of the order can be found below in the
    section entitled The Order under Appeal.

[31]

Finally,
    the motion judge declined to grant a mandatory order compelling Buckley to
    restore the clearance height of the laneway to its original dimensions. Instead,
    the motion judge gave Buckley four months to remedy the matter voluntarily,
    failing which AdLine could return to court to seek that aspect of injunctive
    relief.

The Second Endorsement

[32]

Following
    the release of the First Endorsement, the parties disagreed on two of its provisions:
    whether written notice was required for deliveries outside of normal business
    hours, and the appropriate clearance height of the laneway.

[33]

The
    motion judge heard oral submissions from the parties on these two disputed
    aspects of the order and, on May 31, 2013, she issued an endorsement in which
    she resolved them (the Second Endorsement).

[34]

In
    the Second Endorsement, the motion judge began by stating that in respect of
    AdLines motion for mandatory injunctive relief, she had been satisfied that
    the
RJR-Macdonald

test was met and thus she had ordered interim
    and interlocutory injunctive relief.  She then dealt with the two points of
    disagreement arising from the order contained in the First Endorsement.

[35]

The
    motion judge explained that the 24 hours written notice provision was intended
    to apply only to regular business hours. Outside of these hours, prior written
    notice was not required. However, the maximum total time that vehicles could deliver
    or receive goods, regardless of the day, was 120 minutes in any given day.

[36]

The
    motion judge clarified that the clearance height of the laneway was 12.2 feet.

The Third Endorsement

[37]

Following
    the release of the Second Endorsement, Buckley retained new counsel. The
    parties again disagreed on the order. Specifically, they disagreed on whether
    the injunctive relief that the motion judge had ordered was permanent or
    interlocutory.

[38]

On
    July 3, 2013, the motion judge issued a third endorsement in which she addressed
    this disputed aspect of the order (the Third Endorsement).  The Third
    Endorsement consists of four paragraphs.

[39]

In
    the first paragraph, the motion judge again recites that AdLine had sought mandatory
    injunctive relief and that she had granted interim and interlocutory
    injunctive relief.

[40]

In
    the second paragraph, the motion judge gave a brief summary of the
    circumstances surrounding the making of the Second Endorsement.

[41]

In
    the third paragraph, the motion judge explained that Buckley had retained new
    counsel and that the parties had again been unable to agree on the terms of the
    order.  She stated that counsel had appeared before her that day and made
    submissions concerning the issue and that she had signed a form of the order
    that reflected her decision.

[42]

The
    fourth paragraph contains the motion judges reasons for concluding that she
    intended to order permanent injunctive relief.  The full text of those reasons reads
    as follows:

In the signed order, I clarify that the terms of injunctive
    relief ordered with the exception of the mandatory order to remedy the height
    clearance are imposed as permanent injunctive relief.

[43]

The
    motion judge concluded the fourth paragraph by stating that the issue of the
    height clearance had not been finally determined and that the matter was adjourned,
    on terms, to enable the parties to rectify the situation.

THE ORDER UNDER APPEAL

[44]

An
    order, dated May 31, 2013, was finally taken out in this proceeding (the Order
    under Appeal).

[45]

In
    the Order under Appeal, the motion for contempt is dismissed and, in paras. 2
    and 3, injunctive relief is ordered.  The following analysis is informed by the
    nature and extent of that relief.  Thus, paras. 2 and 3 of the Order under
    Appeal are set out now.

2.  THIS COURT ORDERS that [AdLines] motion for a mandatory
    order concerning the use of the right of way described as Parts 3, 4, and 5 on
    Plan 65R-7394 (Right of Way), is hereby [granted] on the terms set out in
    paragraph 3 below.

3.  THIS COURT ORDERS that [Buckley] shall provide [AdLine]
    with reasonable, unimpeded access through the Right of Way in accordance with
    the following terms:

(a) the [Appellants] and their agents and employees are
    prohibited from parking vehicles in the Right of Way;

(b) the [Appellants] are permitted to allow vehicles to stop
    in the Right of Way that are delivering to or receiving goods from the
    [Appellants] premises during the hours of 9:00 a.m. to 5:00 p.m. Monday
    through Friday inclusive but such activity is limited to 30 minutes or less
    except with prior written notice of at least 24 hours to the [Respondents];

(c) outside of regular business hours prior written notice
    by the [Appellants] is not required; however, the total amount of time that
    vehicles may deliver to or receive goods from the [Appellants] premises,
    regardless of the day, is up to 120 minutes (two hours) on any given day;

(d) the [Respondents] shall notify the [Appellants] if they
    learn that a vehicle has been parked in the Right of Way in violation of this
    order and the [Appellants] shall take immediate steps to have the vehicle
    removed;

(e) if the [Appellants] do not take steps to have the
    vehicle which is improperly parked in the Right of Way removed within 20
    minutes of being notified by the [Respondents] that access is being blocked,
    then the [Respondents] may arrange a towing service to remove the vehicles at
    the expense of the [Appellants] or the owner of the vehicle;

(f) during [business hours], the employee doors and the
    shipping doors of the [Appellants] shall remain closed except when they are
    actively used; they may not be used for more than 30 minutes at a time and for
    a total of 120 minutes in any given day;

(g) employees of the [Appellants] shall be directed to make
    way for delivery vehicles which require access through the Right of Way to the
    [Respondents] premises. The [Appellants] are also required to direct their
    customers and others not to park in the Right of Way;

(h) any future construction work to the Right of Way shall
    be done on notice of 24 hours to the [Respondents] and shall be carried out in
    a way to allow vehicle access to 255 Main Street during business hours of 9:00
    a.m. to 5:00 p.m., Monday through Friday inclusive each week; and

(i) there shall be no material change to the Right of Way
    that will restrict access to 255 Main Street by vans and vehicles as exists as
    of the date of this order unless there is agreement of both owners of 247 Main
    Street and 255 Main Street.

[46]

It
    will be noted that the Order under Appeal does not expressly state that the injunctive
    relief is permanent.  In fact, as can be readily seen, para. 2 of the Order
    under Appeal refers to AdLines motion for a mandatory order, not a permanent
    order.  However, the Third Endorsement makes it clear that the motion judge
    intended to impose permanent injunctive relief.

THE ISSUES

[47]

Buckley
    accepts that the motion judge had the power to grant interlocutory injunctive
    relief.  The error, it contends, was in making the injunctive relief
    permanent.  Specifically, Buckley submits that the motion judge erred by:

1.

changing the
    order from an interlocutory injunction to a permanent injunction without
    explanation;

2.

imposing a
    permanent injunction on the basis of the test for an interlocutory injunction;

3.

making findings
    of fact not available on the motion; and,

4.

ordering a
    permanent injunction despite the absence of an underlying legal proceeding.

[48]

A
    lack of precision in the terminology associated with injunctive relief appears
    to have contributed to some confusion in these proceedings.  Thus, the key
    terms will be clarified before I address the issues.

KEY TERMS RELATING TO INJUNCTIONS

[49]

Various
    types of injunctive relief have been sought or ordered in this proceeding:
    interim, interlocutory, mandatory and permanent.  What do each of those terms
    mean and how do they differ from one another?

[50]

Let
    us first consider interim and interlocutory injunctions.  While motions for
    pre-trial injunctive relief often term the relief that is sought as both
    interim and interlocutory, some distinctions can be drawn between the two.

[51]

A
    motion for an interim injunction can be made
ex parte
or on notice.
    Argument on the motion is generally quite limited and, if an order is made for
    interim injunctive relief, the order is typically for a brief, specified period
    of time: see
Robert J. Sharpe,
Injunctions
    and Specific Performance
, loose-leaf
    (Toronto: Canada Law Book, 2013), at para. 2.15.
I
f an interim injunction is granted on an
ex parte
basis,
    the moving party must normally bring a further motion to have the interim
    injunction continued

[52]

An interlocutory injunction, like an interim
    injunction, is a pre-trial form of relief.  It is an order restraining the
    defendant for a limited period, such as until trial or other disposition of the
    action:
see Sharpe, at para.
2.15.  Interlocutory
    injunctive relief typically follows much more thorough argument than that for
    an interim injunction, by both parties, and is generally for a longer duration
    than an interim injunction.

[53]

The
    present case provides an example of both an interim and an interlocutory
    injunction.

[54]

The
    Interim Order is an example of an interim injunction.  AdLine originally moved
    for interim injunctive relief on an
ex parte

basis.  However,
    both parties were present when the motion for interim relief was argued.
    Justice Stinson opened his endorsement by emphasizing the very limited nature
    of the question before him: should interim injunctive relief be granted pending
    the scheduled hearing of the Contempt Motion?  The injunctive relief granted in
    the Interim Order was specified to last for that period of slightly less than
    two months.

[55]

The
    Consent Order, on the other hand, was the product of both parties
    participation, and the duration of the injunctive relief restraining Buckleys
    use of the laneway, while not clear on the face of the Consent Order, appears
    to have been for the period of the laneways renovation in 2009.

[56]

The
    next useful distinction to be drawn is between interlocutory and permanent
    injunctions.  Interlocutory injunctions are imposed in ongoing cases whereas
    permanent injunctions are granted after a final adjudication of rights: see Sharpe,
    at para.
1.40, citing
Liu v. Matrikon
    Inc.
, 2007 ABCA 310, 422 A.R. 165, at para.
    26. As will be seen, this conceptual distinction features prominently in the
    present case, where a key issue is whether the court must apply a different
    test for permanent injunctions than for interlocutory injunctions.

[57]

It
    is also important to distinguish between mandatory and permanent injunctions. A
    mandatory injunction is one that requires the defendant to act positively. It
    may require the defendant to take certain steps to repair the situation
    consistent with the plaintiffs rights, or it may require the defendant to
    carry out an unperformed duty to act in the future: see Sharpe, at para.
1.10.  Mandatory injunctions are rarely ordered and
    must be contrasted with the usual type of injunctive relief, which prohibits
    certain specified acts.

[58]

Because
    of their very nature, mandatory injunctions are often permanent.  However, permanent
    injunctions are not necessarily mandatory.  An example illustrates this point.
    If, after trial, a court orders that a defendant can never build on a right of
    way, it will have made a permanent order enjoining the defendant from building
    on the right of way.  But, the injunction would not be mandatory because it
    does not require the defendant to perform a positive act.

[59]

In
    short, the words mandatory and permanent are not synonymous, especially in
    the context of injunctive relief.

ANALYSIS

Issue 1  Did the Motion Judge Change
    the Order Without    Explanation?

[60]

The
    first issue arises because in the Third Endorsement, the motion judge altered the
    order that she had made in the First Endorsement, and granted permanent, rather
    than interlocutory, injunctive relief.

[61]

Buckley
    says that ordering permanent injunctive relief was not a clarification, as the
    motion judge said, but a change.  Buckley concedes that the motion judge had
    the authority to change the order because it had not yet been formally filed
    with the court.  However, Buckley submits, reasons must be given for such a change
    and, in this case, the motion judge failed in that regard.

[62]

AdLine
    submits that the motion judge did not change her order; rather, she simply
    clarified it.  AdLine says that the motion judges references to interlocutory
    injunctions in the First and Second Endorsements were inadvertent and that the
    motion judge had always intended to grant permanent injunctive relief.
    Consequently, AdLine maintains, the motion judge sufficiently explained the
    change in her order by stating that it was a clarification.

[63]

I
    would accept Buckleys submission on this issue.

[64]

As
    Buckley conceded, until the order was formally entered, the motion judge had a
    broad discretion to change it: see
Montague v. Bank of Nova Scotia
(2004),
    69 O.R. (3d) 87 (C.A.), at para. 34.  However, a judge exercising that
    discretion bears a significant onus to explain the change:
Montague
,
    at para. 40.

[65]

The
    first question, therefore, is whether making the order for injunctive relief
    permanent rather than interlocutory was a change.  In my view, there can be no
    doubt that it was.

[66]

The
    First Endorsement contains the motion judges reasons for granting relief.  In
    it, the motion judge sets out and applies the
RJR-MacDonald

test,
    which she identifies as the test for an interlocutory injunction.  The motion
    judge makes no mention of the test for permanent injunctions nor did she
    consider whether that test had been met.

[67]

Having
    found that the test for an interlocutory injunction had been met, the motion
    judge then expressly granted relief in those terms, saying at para. 28 of the
    First Endorsement, The request for interim and interlocutory relief is granted
    with reference to the right of way, legally described as.

[68]

The
    sole reference to permanent relief in the First Endorsement is in para. 9,
    where the motion judge sets out AdLines position and says it sought permanent
    injunctive relief.  However, according to the record, AdLine did not seek permanent
    injunctive relief.  The word permanent does not appear in its notice of
    motion for the Contempt Motion.  While AdLine repeatedly asked for mandatory
    injunctive relief in its notice of motion, as we have seen, the words mandatory
    and permanent have very different meanings in respect of injunctions.

[69]

Furthermore,
    in the first paragraph of each of the Second and Third Endorsements, the motion
    judge repeated that she was satisfied that the
RJR-MacDonald
test had
    been met and thus she had granted interim and interlocutory relief in respect
    of the right of way.

[70]

Having
    found that the motion judge made a change to the order, we must consider
    whether she explained the change.  In my view, she did not.

[71]

As
    I have explained, the sole reason given for the change is that it was a
    clarification.  Having made an order that the injunctive relief was interlocutory,
    when the motion judge declared it to be permanent, she was not clarifying the order,
    she was changing it.  Thus, saying it was a clarification does not amount to a
    reason for changing the order.

[72]

As
Montague

points out, the onus to explain any change to an order
    is significant.   The seriousness of the change in this case underscores that
    onus.  If the Order under Appeal stands, Buckley and anyone who might later
    take title from Buckley will be permanently, seriously restricted in the use of
    its own laneway.  A consideration of just one component of the Order under
    Appeal makes this clear: Buckley  and any subsequent owner  would have to
    ensure that the cumulative time in which delivery vehicles are on the laneway
    never exceeded 120 minutes in a day.  This prohibition would extend to every
    day of the week, no matter the circumstances, and would remain so long as the
    right of way exists, even if AdLine were no longer operating from its premises.
    It is one thing for Buckley to face an order restricting its use for a limited
    period. It is quite another to contemplate such restrictions on a permanent
    basis, including if and when Buckley wished to sell its property.

[73]

A
    clear explanation for the change to the order was required so that the parties,
    and this court on review, could know the reason for the change.  It was an
    error to fail to give that explanation.

Issue 2  Is the Test for a
    Permanent Injunction Different than the Test for an Interlocutory Injunction?

[74]

The
    test for interlocutory injunctions is the familiar three-part inquiry set out
    in
RJR-MacDonald
:  is there a serious issue to be tried; would the
    moving party otherwise suffer irreparable harm; and, does the balance of
    convenience favour granting the injunction.

[75]

Does
    that same test apply when the court is deciding whether to grant permanent
    injunctive relief? AdLine contends that it does and points to cases such as
Hanisch
    v. McKean
, 2013 ONSC 2727, at para. 111, and
Poersch v. Aetna
,
    2000 CanLII 22613 (Ont. S.C.), at para. 103, where the courts have expressly
    applied the test when deciding whether to grant permanent injunctive relief.

[76]

I
    would not accept this submission.  In my view, a different test must apply.

[77]

The
    British Columbia Court of Appeal recently considered the test for a permanent
    injunction and its relationship to the test for an interlocutory injunction. In
    the decision under review in
Cambie Surgeries Corp. v. British Columbia
    (Medical Services Commission)
, 2010 BCCA
    396, 323 D.L.R. (4th) 680, the trial judge granted permanent injunctive relief based
    on the test for an interlocutory injunction.  Despite the parties agreement
    that the trial judge correctly set out the test, the British Columbia Court of
    Appeal held that the wrong test had been applied and reversed the trial
    decision.

[78]

Justice Groberman, writing for the court, explained
    that the
RJR-Macdonald

test is for interlocutory  not final or permanent
    injunctions.  At para. 24 of
Cambie Surgeries
, he explained that the
RJR-Macdonald

test is designed
    to address situations in which the court does not have the ability to finally
    determine the merits of the case but, nonetheless, must decide whether interim
    relief is necessary to protect the applicants interests.

[79]

In paras. 27-28 of
Cambie Surgeries
, Groberman J.A. explained:

Neither the usual nor the modified test discussed in
RJR-MacDonald
has application when a court is making a final (as opposed to interlocutory)
    determination as to whether an injunction should be granted. The issues of
    irreparable harm and balance of convenience are relevant to interlocutory
    injunctions precisely because the court does not, on such applications, have
    the ability to finally determine the matter in issue. A court considering an
    application for a final injunction, on the other hand, will fully evaluate the
    legal rights of the parties.

In order to obtain final injunctive relief, a party is required
    to establish its legal rights. The court must then determine whether an
    injunction is an appropriate remedy. Irreparable harm and balance of
    convenience are not,
per se
, relevant to the granting of a final
    injunction, though some of the evidence that a court would use to evaluate
    those issues on an interlocutory injunction application might also be
    considered in evaluating whether the court ought to exercise its discretion to
    grant final injunctive relief.

[80]

I would adopt this reasoning. The
RJR-Macdonald

test is
    designed for interlocutory injunctive relief. Permanent relief can be granted only
    after a final adjudication.  Different considerations operate and, therefore, a
    different test must be applied, pre- and post-trial.

Issue 3  Did the Motion Judge err
    by making Findings of Fact not available on the Motion?

[81]

In
    this case, there was no dispute that AdLine had a right of way over the
    laneway.  The questions for the motion judge were whether Buckley was
    infringing AdLines rights in the laneway and, if so, what type of interlocutory
    injunctive relief was appropriate.

[82]

To
    decide these questions, the motion judge had to weigh the competing evidence
    and make factual findings about the extent, if any, of Buckleys interference
    with AdLines right of way.

[83]

It
    will be recalled that AdLine and Buckley offered dramatically competing
    versions of events.  One version or the other had to be preferred in order to
    decide whether Buckley had infringed AdLines rights. In this regard, I note
    that the motion judges reasons do not refer to Buckleys contrary evidence and
    there is no indication why the motion judge accepted AdLines evidence and (implicitly)
    rejected that given by Buckley.

[84]

Given
    the nature of the conflicting evidence in this case, credibility would play a
    large role in making the necessary factual findings.  In my view, it is hard to
    conceive of how such credibility findings could be made without a trial.

[85]

There
    is a second reason why the factual findings in this case were not available,
    namely, the nature of the relief ordered.

[86]

In
    general terms, injunctive relief is onerous.  It is available only when truly
    necessary to ensure that a party is not deprived of his or her rights.  Even when
    injunctive relief is appropriate, the particulars of that relief must be
    determined so as to ensure a proper balancing of the parties respective
    interests.  That also demands a careful weighing of the evidence.

[87]

The
    detailed restrictions imposed by the Order under Appeal demonstrate this
    point.  Under that order, not only is Buckley prohibited from using the laneway
    except under strictly supervised times and manners, it has been placed under a
    positive obligation to monitor third-party use of the laneway and has been made
    responsible for the costs of removing third-party vehicles parked on the
    laneway.

[88]

The
    motion judge gave no reasons for why she selected the particular terms of
    injunctive relief that she did.  There is no evidence in the record to indicate
    why the terms in the Order under Appeal were selected nor how the motion judge
    determined that they constituted a fair and reasonable balancing of the
    parties respective rights and interests in the laneway.  Again, given the
    nature and extent of the conflicting evidence, it is hard to conceive of how
    such relief could be fashioned without a trial.

[89]

It
    is for these reasons that I accept that in this case, the findings of fact that
    were made were not available on the motion.

Issue 4  Did the Motion Judge err
    in Ordering a Permanent Injunction in the Absence of an Underlying Legal
    Proceeding?

[90]

Buckley submits that
the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194 do not contemplate free-standing motions
    unmoored from a legal proceeding, extant or contemplated.  It points to Rule
    1.03(1), in which motion is defined to mean a motion in a proceeding or an
    intended proceeding.  Because the Application had been explicitly dismissed by
    the Consent Order, and no effort had been made to revive it, amend it, or
    commence a new proceeding, Buckley says there was no proceeding within which to
    bring the motion for permanent injunctive relief.

[91]

Further,
    Buckley argues, to the extent that Rule 60.11(1) presupposes the existence of a
    proceeding when a party makes a motion for a contempt order, the motion judge
    exceeded the scope of the powers conferred by Rule 60.11(5) to make such order
    as is just when she purported to grant AdLine a permanent injunction.

[92]

I
    agree that the motion judge did not have the jurisdiction to grant permanent
    injunctive relief, but for somewhat different reasons.

[93]

In
    the Contempt Motion, AdLine sought two types of relief: a finding of contempt
    and further injunctive relief.  Thus, Rule 60.11 was in play.

[94]

Rule
    60.11(1) stipulates that a motion for contempt is to be brought in the
    proceeding in which the order to be enforced was made.  It reads as follows:

60.11(1) Motion for contempt order
A contempt
    order to enforce an order
requiring a person to do an act, other than the
    payment of money, or to abstain from doing an act,
may be obtained only on
    motion to a judge in the proceeding in which the order to be enforced was made
.
    [Emphasis added.]

[95]

The
    Contempt Motion was to enforce the Consent Order.  The Consent Order was made
    in the Application.  Thus, pursuant to Rule 60.11(1), AdLine properly brought the
    Contempt Motion in the Application proceeding, even though the Application had
    been dismissed.

[96]

Rule
    60.11(5) allows a judge hearing a motion under Rule 60.11(1) to make orders
    short of a finding of contempt.  The language of the rule is broad and
    contemplates any order that is just: see
L.(S.) v. B.(N.)
(2005), 252
    D.L.R. (4th) 508 (Ont. C.A.), at para. 22 .

[97]

The
    relevant part of Rule. 60.11 (5) reads as follows:

(5) Content of order  In disposing of a motion under
    subrule (1)
the judge may make such order as is just,
and where a
    finding of contempt is made, the judge may order that the person in contempt
    [Emphasis added.]

[98]

Accordingly,
    although the motion judge declined to find Buckley in contempt of the Consent
    Order, she retained the authority to make any order that was just.

[99]

The
    question then becomes: did the scope of the motion judges powers under Rule
    60.11(5) encompass the right to make an order for permanent injunctive relief?
    In my view, it did not.

[100]

Rule 60.11(5) gives
    the judge the power to make such orders as are just when disposing of a motion
    under subrule (1).  In this case, the motion was brought within the Application
    proceeding because the Consent Order had been made in that proceeding, and it
    was the Consent Order which AdLine sought to have enforced.  But, AdLine could
    not rely on either the Consent Order or the Application for that part of its
    motion in which it sought further injunctive relief.  On the findings of the
    motion judge, the Consent Order was spent because it related to the 2009
    renovation.  And, the Application had been dismissed.  Consequently, there was
    no extant legal proceeding in which permanent injunctive relief had been
    sought.  Put another way, once the motion judge found that the Consent Order
    was spent, that part of the Contempt Motion in which AdLine sought further
    injunctive relief was unmoored from a legal proceeding.

[101]

The requirement
    that a motion be brought within a legal proceeding is a matter of substance,
    not form.  A proceeding creates the framework within which the issues are
    defined and sufficient evidence is adduced such that the court can make a
    proper adjudication.  The absence of such a framework in this case demonstrates
    precisely why a proceeding is necessary as the foundation for a motion.
    Because there was no proceeding, the evidence necessary to decide whether to
    grant permanent injunctive relief and, if so, the terms of that relief, was not
    before the court.

[102]

Accordingly, it
    was an error to order permanent injunctive relief in the absence of an
    underlying proceeding.

DISPOSITION

[103]

For these
    reasons, I would allow the appeal and set aside paras. 2 and 3 of the Order
    under Appeal.

[104]

I would order
    costs of the appeal in favour of Buckley, fixed in the amount of $15,000, all-inclusive.
    The parties agreed that if this were the result on appeal, the costs order in
    para. 7 of the Order under Appeal should be set aside and costs of the Contempt
    Motion should be in the cause.  I would so order.

Released: February 18, 2014 (J.C.M.)

E.E. Gillese
    J.A.

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

I agree. C.W. Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: 2329131 Ontario Inc. v. Carlyle
    Development Corp., 2014 ONCA 132

DATE: 20140219

DOCKET: C57641

Gillese, Epstein and Benotto JJ.A.

BETWEEN

2329131 Ontario Inc. and
    2327451 Ontario Inc.

Plaintiffs (Respondents)

and

Carlyle Development Corp. and Carlyle
    Consolidated Holdings Inc.

Defendants (Appellants)

Alvin Meisels, for the appellants

Jonathan Kulathungam, for the respondents

Heard: February 6, 2014

On appeal from the judgment of Justice Katherine E.
    Swinton of the Superior Court of Justice, dated August 21, 2013, with reasons
    reported at 2013 ONSC 4876, 34 R.P.R. (5th) 161.

ENDORSEMENT

[1]

The appellants were the vendors of a property and entered into an
    agreement to sell it to the respondents.  The closing date was extended several
    times.  The parties tried to close on August 3, 2012, but the appellants had
    not provided certain documents that the respondents bank required before it
    would release the funds.

[2]

The appellants took the position that they were not obliged to deliver
    the documents because certain requisition were made past the deadline, time was
    of the essence, and the respondents had failed to deliver the funds required
    for closing on the closing date.

[3]

The respondents successfully moved for partial summary judgment and
    specific performance.

[4]

The appellants say the motion judge erred by:

1.

drawing
    inferences of fact that were inconsistent with the evidence or  palpably wrong;
    and

2.

finding that
    this was an appropriate case for summary judgment.

[5]

We accept neither submission and would dismiss the appeal.

THE FIRST ISSUE

[6]

The first issue is squarely disposed of by a single fact: the motion
    judge made her findings on the explicit basis that she assumed the appellants
    version of events was the correct one.

[7]

Further, the facts were largely undisputed and most of the numerous
    criticisms made about the motion judges factual findings are immaterial to the
    outcome of the case.

[8]

The motion judge concluded that the time is of the essence clause had
    been waived, but she added that even if she were wrong in reaching this
    conclusion, the appellants could not rely on the clause.  This was because, on
    any version of events, the appellants were not ready to close on August 3.  They
    had failed to tender several documents that were required as conditions of
    closing.

[9]

While the appellants argue that the respondents waived all conditions
    when they offered to close in escrow, we reject this submission.  Even on the
    appellants submission, waiver could only have taken place if the appellants
    had accepted the respondents offer to close in escrow.  The appellants refused
    to even contemplate this offer.

[10]

The
    motion judge correctly held that, as the parties were not ready to close on
    August 3, the appellants could only reinstate the time is of the essence
    clause in these circumstances by giving the respondents reasonable notice of
    the new closing date and stating that time was of the essence for this new date:
    see
Domicile Developments Inc. v. MacTavish

(1999), 45 O.R.
    (3d) 302 (C.A.), at pp. 307-308.  There is no dispute that the appellants did
    not do those things.

THE SECOND ISSUE

[11]

We
    see nothing in the second issue.

[12]

In
    our view, the motion judges conclusion that none of the issues before her
    required a trial is unassailable.  She had a full appreciation of the evidence
    and was satisfied that there were no genuine issues requiring a trial.

[13]

A
    consideration of
Hryniak v. Mauldin
, 2014 SCC 7, which was decided
    after the motion below, reinforces the motion judges conclusion.
Hryniak

encourages the use of a summary judgment motion to resolve cases in an
    expeditious manner, provided that the motion can achieve a fair and just adjudication
    (para. 4).  We are satisfied that the decision below is a fair and just
    adjudication.

DISPOSITION

[14]

Accordingly,
    the appeal is dismissed, with costs to the respondents fixed at $18,000, all
    inclusive.

E.E. Gillese
    J.A.

Gloria Epstein J.A.

M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Ainsley v. Fitzpatrick, 2014 ONCA 93

DATE: 20140203

DOCKET: C57343

Laskin, van Rensburg and Hourigan JJ.A.

BETWEEN

Richard Ainsley

Plaintiff (Appellant)

and

Donna Fitzpatrick

Defendant (Respondent)

Mark E. Alter, for the appellant

Ian Latimer, for the respondent

Heard:  January 28, 2014

On appeal from the judgment of Justice Thomas A. Bielby
    of the Superior Court of Justice, dated June 30, 2013.

ENDORSEMENT

[1]

Mr. Ainsley narrowed the focus of his oral argument on appeal.  He puts
    in issue only the $50,000 loan, and makes three submissions why the limitation
    period for demanding repayment of that loan had not expired by April 2011, when
    he began this action.

[2]

First, Mr. Ainsley submits that the loan was not a demand loan but was a
    loan for a specific purpose  to enable Ms. Fitzpatrick to pursue estate
    litigation against her fathers estate.  Second, he submits that the limitation
    period was tolled because of Ms. Fitzpatricks wilful concealment or
    misrepresentation about why she needed the money.  Third, he submits that the
    limitation period was tolled because of his incapacity.

[3]

The evidence in support of all three submissions is thin, at best.  Even
    if we were to give credence to this evidence, however, Mr. Ainsleys own
    evidence on cross-examination shows that he knew that he had a cause of action
    by June 2005.  And his first of four demand letters was dated in May 2006.  The
    limitation period would therefore begin to run at least from the date of his
    first demand.  By then the new
Limitations Act, 2002,
applied and
    therefore the limitation period was two years.  Accordingly, the motion judge
    was correct in stating in para. 48 of his reasons:

If the latter two loans were not demand loans and it was
    determined the
Limitations Act
, 2002, applied, the first written
    demand was made on May 1, 2006.  At the latest, the limitation period expired
    two years later, years before the commencement of the action.

[4]

This appeal is dismissed with costs of $2,500, inclusive of
    disbursements and applicable taxes.

[5]

The title of proceedings may be amended to show the plaintiff as Richard
    Ainsley also known as Rick Ainsley.

John
    Laskin J.A.

K. van
    Rensburg J.A.

C.W.
    Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:  Achilles Motors Limited v. 1717222 Ontario Inc.,
    2014 ONCA 139

DATE:  20140224

DOCKET: C57401

Hoy A.C.J.O., LaForme and Pardu JJ.A.

BETWEEN

Achilles Motors Limited

Appellant

and

1717222
    Ontario Inc.
and Nucorp Realty Ltd. Brokerage

Respondents

Charles Baker, for the appellant

William C. McDowell and Lindsay N. Beck, for the
    respondents

Heard:  February 13, 2014

On appeal from the order of Justice Fitzpatrick of the Superior
    Court of Justice, dated July 5, 2013.

ENDORSEMENT

[1]

The appellant, Achilles Motors Limited, appeals the dismissal of its
    application (1) for a declaration that an agreement of purchase and sale entered
    into after the respondent 1717222 Ontario Inc
.
(171)
    had been dissolved, and before it had been revived, was void and (2) for the
    forfeiture and delivery to the appellant of the $100,000 deposit held by the
    respondent real agent, Nucorp Realty Ltd. Brokerage.

[2]

The appellant argues that the application judge erred in concluding that
    the revival of 171 under s. 241(5) of the
Business Corporations Act
,
    R.S.O. 1990, c. B.16 (the
OBCA
) was retroactive in effect, and the
    agreement of purchase and sale was therefore enforceable.

[3]

For the reasons that follow, we agree with the application judges
    conclusion and, accordingly dismiss this appeal.

[4]

Briefly, the appellant and 171 entered into an agreement of purchase and
    sale on November 18, 2010. That agreement was subsequently amended. Unbeknownst
    to them, on November 16, 2010, 171s corporate charter had been dissolved by
    the Ministry of Government Services for failure to file a Notice of Change Form
    1. 171 learned of the cancellation by letter dated June 20, 2012 from the
    appellants counsel. 171 immediately filed a Form 1 and received a Certificate
    of Revival dated September 19, 2012. Until the appellant discovered that 171
    had been dissolved, the parties had dealt with each other on the basis that the
    agreement of purchase and sale was binding on them.

[5]

More than 25 years ago, this court established in
Zangelo Investments
    Ltd. v. Glasford State Inc.
(1988),
63 O.R. (2d) 542 that the revival provision in Ontarios then current corporate
    statute, namely s. 240(4) of the
Ontario
Business Corporations Act
,
1982
, S.O. 1982, c. 4, was retroactive
    in effect. That section provided as follows:

240(4) Where a corporation is dissolved under subsection (3) or
    any predecessor thereof, the Director on the application of any interested
    person immediately before the dissolution, made within five years after the
    date of dissolution, may, in his discretion, on such terms and conditions as he
    sees fit to impose, revive the corporation
and thereupon
the
    corporation, subject to the terms and conditions imposed by the Director and to
    any rights acquired by any person after its dissolution
,
is restored to
    its legal position
, including all its property, rights and privileges
    and franchises, and is subject to all its liabilities, contracts, disabilities
    and debts,
as of the date of its dissolution, in the same manner and to the
    same extent as if it had not been dissolved
.
[Emphasis added.]

[6]

In doing so, this court upheld the decision of the application judge,
    Oyen J. In a short endorsement, Blair J.A. wrote that:

We agree with the reasoning and the conclusion of Oyen J. The
    wording of s. 240(4) of the
Ontario
Business Corporations Act
,
1982
, S.O. 1982, c. 4, is such that
    the only reasonable inference that can be drawn is that a dissolved company
    that is revived, is revived as of the date of dissolution so as to update all
    action taken by the company during its time of dissolution.

[7]

We reject the appellants argument that because this courts decision in
Zangelo
was in the form of a short endorsement, it should be
    disregarded. The court adopted the reasoning and conclusion of the application
    judge, as it was entitled to do so. The courts decision was clear.

[8]

Section 241(5) of the
OBCA
is worded slightly differently from
    s. 240(4). However, the changes - particularly the words shall be deemed for
    all purposes to have never been dissolved - make it even clearer that s.
    241(5) is similarly retroactive in effect:

241(5) Where a corporation is dissolved under subsection (4) or
    any predecessor of it, the Director on the application of any interested
    person, may, in his or her discretion, on the terms and conditions that the
    Director sees fit to impose, revive the corporation;
upon revival, the
    corporation
,
subject to the terms and conditions imposed by the
    Director and to the rights, if any, acquired by any person during the period of
    dissolution,
shall be deemed for all purposes to have never been dissolved
.
[Emphasis added.]

[9]

Moreover, an interpretation giving retroactive effect is consistent with
    the curative purpose of s. 241(5) of the
OBCA
.

[10]

As
    the application judge highlighted, revival of a dissolved corporation under s.
    241(5) is in the discretion of the Director, and the Director may impose terms
    and conditions. Without commenting on whether any such terms and conditions
    could impact on the otherwise retroactive effect of s. 241(5), we note that
    none of the terms and conditions set out in 171s Certificate of Revival
    purport to interfere with the retroactive nature of 171s revival.

[11]

The appellant relies on
Swale
    Investments Ltd. v. National Bank of Greece (Canada)
(1997),

37 B.L.R. (2d) 324 (Ont. S.C.),
    and decisions that have followed it.  In our view,
Swale
wrongly concluded
    that s. 241(5) is not retroactive in effect. In coming to that conclusion, the
    application judge in
Swale
rejected the reasoning of Oyen J. that had
    been specifically approved by this court in
Zangelo
.
Moreover,
    that conclusion was obiter. The result in
Swale
turned on the fact
    that no revival had taken place or been attempted. As the application judge in
Swale
noted, the revival provision was therefore not relevant. We note that the
    appeal of the respondent in
Swale
to this court was dismissed, on
    consent, without a determination on the merits:
Swale Investments Ltd. v.
    National Bank of Greece (Canada)
,
    [1998] O.J. No. 5383 (C.A.)
. This courts decision in
Zangelo
that the revival provision in s. 240(4) of the earlier version of the
OBCA
is retroactive in effect remains the law, and supports the conclusion that s.
    241(5) is retroactive in effect.

[12]

The
    appeal is accordingly dismissed. The respondent 171 is entitled to costs in the
    agreed, all inclusive, amount of $7500.

Alexandra
    Hoy A.C.J.O.

H.S.
    LaForme J.A.

G.
    Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Baker v. Navistar Canada Inc., 2014 ONCA 115

DATE: 20140211

DOCKET: C57138

Doherty, Lauwers and Strathy JJ.A.

BETWEEN

Cathy Baker and Joe Lucier

Plaintiffs (Appellants)

and

Navistar Canada Inc.

Defendant (Respondent)

L.N. Gottheil and Anthony F. Dale, for the plaintiffs
    (appellants)

John C. Field and Lauri A. Reesor, for the defendant
    (respondent)

Heard and released orally:  February 7, 2014

On appeal from the order of Justice Richard Gates of the
    Superior Court of Justice, dated May 9, 2013.

ENDORSEMENT

[1]

We are in substantial agreement with the reasons of the motion judge.

[2]

We called on the respondent on only one issue  the claim as it relates
    to benefits under the Employment Standards Act (
ESA
).

[3]

With respect to the
ESA
-related
claim, we read that claim as advanced on the same basis as the other claims,
    that is, that on the expiry of the collective agreement, individual contracts
    of employment sprang up between the workers and their employer.  In our view,
    that claim is no more tenable on the facts as pleaded or as a matter of law than
    are the other claims advanced, e.g. the reasonable notice claim.

[4]

The motion judge was not asked to determine what, if any, entitlement
    the plaintiffs had under the
ESA
.
    No
one suggests that the motion judge made any such determination.

[5]

The appeal is dismissed.

[6]

The parties are agreed that the respondent, the successful party, should
    have its costs in the amount of $7,500, inclusive of disbursements and relevant
    taxes.

Doherty J.A.

P. Lauwers J.A.

G.R. Strathy J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Balanyk v. Dutton Brock LLP, 2014
    ONCA 122

DATE: 20140214

DOCKET: C55988

Gillese, Rouleau and Tulloch JJ.A.

BETWEEN

Elizabeth Balanyk

Appellant (Respondent)

and

Dutton Brock LLP

Respondent (Applicant)

Elizabeth Balanyk, acting in person

S. Alexandre Proulx, for the respondent

Heard: February 12, 2014

On appeal from the order of Justice Dale Parayeski of the
    Superior Court of Justice, dated September 7, 2012.

APPEAL BOOK ENDORSEMENT

[1]

The appellants central submission is that the respondent law firm had
    no standing to bring the application because, in her submission they are a
    non-aggrieved third party.

[2]

We disagree. Section 140 of the
Courts of Justice Act
does not
    restrict who can bring such an application. The policy reasons that the
    appellant advances for limiting who might have standing to bring such an
    application is a matter for the legislature and for the courts given the broad
    wording of the current section.

[3]

As to the other grounds of appeal, we see no error in the application
    judges decision. He gave the appellant the opportunity to be heard and did not
    ground his reasons on the alleged number of outstanding action in St.
    Catharines or on the alleged number of pages contained in those files. Although
    he referred to the respondents materials in this regard and expressed a
    general concern, the application judge grounded his decision on repeated
    appearances in this court and several other observations made and contained in
    his reasons. In the application judges view, the record before him was
    sufficient to meet the threshold under the case law for declaring the appellant
    a vexatious litigant. His decision is entitled to deference and we see no basis
    to interfere.

[4]

We do not consider the fresh evidence as having probative value and
    therefore dismiss both the appeal and the motion to file fresh evidence. Costs
    to the respondent fixed at $1,000 inclusive of HST and disbursements.


COURT OF APPEAL FOR ONTARIO

CITATION: Baradaran v. Tarion Warranty
    Corporation, 2014 ONCA 123

DATE: 20140218

DOCKET: C56221

Gillese, Rouleau and Tulloch JJ.A.

BETWEEN

Manoucher Baradaran

Plaintiff (Appellant)

and

Tarion
    Warranty Corporation, Roger Boyd, Abbassgholi Nasseri,

Master Custome Homes Inc.

Defendants (Respondents)

Manoucher Baradaran, acting in person

Sophie Vlahakis, for Tarion Warranty Corporation and
    Roger Boyd

Heard: February 12, 2014

On appeal from the order of Justice Robert Goldstein of
    the Superior Court of Justice, dated October 3, 2012.

ENDORSEMENT

[1]

The appellant appeals from the motion judges order striking his
    statement of claim as against one of the defendants, Roger Boyd. The motion
    judge found that the claim against Mr. Boyd disclosed no reasonable cause of
    action because, at all material times, Mr. Boyd would have been acting as an
    employee of Tarion Warranty Corporation (Tarion) and not in his personal
    capacity.

[2]

At the root of the dispute is the appellants dissatisfaction with the
    way that Tarion responded to claims he made for alleged defects in the home he
    purchased. The claims were made pursuant to a statutory compensation scheme
    known as the
Ontario New Home Warranties Plan Act
, R.S.O. 1990 c. O.31.
    Most of the appellants claims were rejected and his appeal to the Licence
    Appeal Tribunal was largely unsuccessful. Having exhausted his remedies under
    the statutory scheme, the appellant commenced the present action in Superior
    Court against Tarion, Mr. Boyd, Master Custom Homes Inc. and Abbassgholi
    Nasseri. In his statement of claim the appellant made essentially the same
    complaints about the home that were made to Tarion and in his appeal to the Tribunal.
    He has also alleged that he and his family have suffered stress and that one of
    his family members injured her ankle on a broken slot stone located at the
    front of the home.

[3]

The respondents motion to strike the appellants claim pursuant to Rule
    21 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194 (
Rules
)
    came before Low J. in scheduling court. The appellants first complaint is that
    Low J. ordered that the respondents Rule 21 motion proceed as a Rule 20 motion
    and that the motion judge erred by allowing the respondents to proceed on the
    basis that it was a Rule 21 motion. We disagree. From the transcript, it is
    clear that the motion was brought pursuant to Rule 21. Justice Low heard the
    matter in scheduling court and simply scheduled the motion for hearing on
    October 3. Justice Lows reference to it being a summary judgment motion was
    simply an error. It did not, as suggested by the appellant, change the nature
    of the motion. As a result, the motion judge did not err in dealing with the
    motion as a Rule 21 motion.

[4]

The appellant also alleges that various errors were committed by the
    motion judge, including allegations that:

1.

The motion judge
    erred in relying on a misleading reference to case law made by the respondents;

2.

The motion judge
    had no jurisdiction to make the order dismissing the claim and did not give the
    appellant a fair hearing;

3.

The motion judge
    ought to have waited until he received transcripts of a witness examination
    before deciding the motion; and

4.

The motion judge
    made various ill-defined factual and legal errors in reaching his decision.

[5]

The appellant also appeals the order that he pay costs fixed in the
    amount of $3,000 plus HST and disbursements.

[6]

We would not give effect to these grounds of appeal. The motion judge
    gave the appellant a full and fair hearing and the order made was clearly
    within the motion judges jurisdiction. Further, on a Rule 21 motion no
    evidence is admissible without leave of the motion judge. The decision is based
    on the pleadings and the test is whether it is plain and obvious that the
    claim cannot succeed. There was no need for the motion judge to await
    production of transcripts from various cross-examinations prior to making his
    ruling.

[7]

From our review of the statement of claim, there is simply no evidence
    that Mr. Boyd was at any time acting outside the scope of his employment such
    that he might become personally liable. As explained by this court in
Piedra
    v. Copper Mesa Mining Corporation
, 2011 ONCA 191, at para. 75, claims against
    individuals in their personal capacities must withstand a high degree of
    scrutiny.
Piedra
stressed, in the same paragraph, that courts must be
    scrupulous in weeding out claims that are improperly pleaded or where the
    evidence does not justify an allegation of a personal tort.

[8]

Although the statement of claim contains a vague reference to the effect
    that there was some financial issue between Mr. Boyd and Mr. Nasseri, this
    does not amount to a claim in fraud or that Mr. Boyd was involved in some improper
    conduct that would potentially attract personal liability.

[9]

We also agree with the motion judges conclusion that leave to amend the
    pleading should not be granted. Nothing in what the appellant proposed by way
    of amendments would further the allegations made against Mr. Boyd or meet the
    test for a proper pleading in fraud, misrepresentation, breach of trust, malice
    or intent as provided in r. 25.06(8) of the
Rules
. Such claims must
    contain full particulars.

[10]

Further,
    as we noted earlier, the claim against Mr. Boyd is simply an attempt by the
    appellant to re-litigate the issues fully canvassed in the proceedings brought
    before the Licence Appeal Tribunal. We agree with the motion judges
    observation that the motion to strike could also have succeeded on the grounds
    that the claim against Mr. Boyd is frivolous and vexatious.

[11]

Finally,
    we see no basis to interfere with the motion judges order as to costs. Cost
    orders are entitled to deference in this court and the motion judges order is
    reasonable and fully justified in the circumstances of this case.

[12]

For
    these reasons, the appeal is dismissed. The respondents are entitled to their
    costs fixed in the amount of $1,300 inclusive of HST and disbursements.

E.E.
    Gillese J.A.

Paul Rouleau
    J.A.

M.H.
    Tulloch J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:  Canadian Imperial Bank of Commerce v. Deloitte
    & Touche, 2014 ONCA 89

DATE: 20140203

DOCKET: C56940

Doherty, Goudge and Lauwers JJ.A.

BETWEEN

Canadian Imperial Bank of Commerce, High River
    Limited Partnership, Philip Services Corp. by its receiver and manager, Robert
    Cumming

Plaintiffs (Appellants)

and

Deloitte & Touche, Deloitte
    & Touche LLP, Deloitte Touche Tohmatsu, Deloitte Touche Tohmatsu LLP, and
    Deloitte Touche Tohmatsu f/k/a/ Deloitte Touche Tohmatsu International

Defendants (Respondents)

Thomas J. Dunne, Q.C., John Callaghan and Joe Thorne,
    for the plaintiffs (appellants) Canadian Imperial Bank of Commerce
et al
.

Robb C. Heintzman, Michael Schafler and Mark Evans, for
    the defendants (respondents) Deloitte & Touche
et al.

Brian P. Bellmore
    and Paul F. Farley, for the intervener, the Institute of Chartered Accountants
    of Ontario

Heard:  November 8, 2013

On appeal from the order of Justice Paul M. Perell of the
    Superior Court of Justice, dated April 11, 2013, with reasons reported at 2013
    ONSC 2166.

Doherty J.A.:

I

overview

[1]

This appeal turns on the proper interpretation of s. 61 of the
Chartered
    Accountants Act, 2010
, S.O. 2010, c. 6, Sch. C (
CAA, 2010
):

No record of a proceeding under this Act and no document or
    thing prepared for or statement given at such a proceeding and no decision or
    order made in such a proceeding is admissible in any civil proceeding, other
    than a proceeding under this Act or a judicial review relating to a proceeding
    under this Act.

[2]

Broadly speaking, s. 61 renders material relating to professional
    discipline proceedings involving the Institute of Chartered Accountants of
    Ontario (the Institute) inadmissible in most civil proceedings.  The motion
    judge held that while, on a plain reading, s. 61 applied only to material
    relating to proceedings under the
CAA, 2010
, properly interpreted, s.
    61 reached material relating to discipline proceedings conducted under the
Chartered
    Accountants Act, 1956
, S.O. 1956, c. 7 (
CAA, 1956
), the
    predecessor legislation to the
CAA, 2010
.

[3]

I agree with the motion judge that, on a plain reading, s. 61 applies
    only to material relating to proceedings under the
CAA, 2010
.  I also
    agree that the interpretative exercise does not begin and end with the words of
    the statute being interpreted.

[4]

I cannot, however, agree that the principles of statutory interpretation,
    as applied to s. 61, yield a meaning other than the plain meaning.  In my view,
    while s. 61 creates a rule of evidence that applies in this action, materials
    relating to proceedings under the
CAA, 1956
do not fall within the
    exclusionary rule created by s. 61.  The section means what it says.  The
    phrase proceedings under this
Act
 refers to proceedings under the
CAA,
    2010
and not proceedings under any other Act, including the
CAA, 1956
.
    I would allow the appeal.

II

background

[5]

The relevant facts are set out by the motion judge and need only a brief
    summary here.  The underlying litigation commenced 14 years ago and now a class
    proceeding, involves allegations that the respondent, Deloitte & Touche
    (Deloitte) was negligent in preparing the 1995 and 1996 annual statements of
    Philip Services Corp. (Philip).  The claim alleges that Deloittes negligence
    caused significant financial loss to Philip and various lenders, including the
    Canadian Imperial Bank of Commerce (CIBC), who advanced funds on the strength
    of those audited financial statements.

[6]

In 1998, about two years before this litigation began, the Institute
    commenced an investigation into Deloittes audit of Philip for the years 1995
    and 1996.  In 2007, the Institute brought charges against Noel Woodsford, the
    senior partner at Deloitte responsible for the 1995 and 1996 audits.  A hearing
    was held and, in 2008, Mr. Woodsford was found guilty of professional
    misconduct for failing to properly supervise the audits and failing to maintain
    relevant records of the audits.  The discipline committees reasons for its
    findings were released in July 2009.  All of the discipline proceedings were
    conducted under the auspices of the
CAA, 1956
.

[7]

The
CAA, 2010
came into force in May 2010, almost a
    year after the discipline committee had released its reasons for finding Mr.
    Woodsford guilty of professional misconduct.  Section 66 of the
CAA, 2010
repealed the
CAA, 1956
.

[8]

At some point
during the
    discoveries of Deloitte, counsel for the plaintiffs (appellants in this court)
    asked questions about the information provided to and generated by the
    Institute in the discipline proceedings against Mr. Woodsford.  Those questions
    were met with refusals, which, in turn, precipitated a motion to compel
    answers:  see
CIBC v. Deloitte & Touche
,
2013 ONSC 917.

[9]

The plaintiffs brought a further motion to amend their statement of
    claim to set out a history of the discipline proceedings and the findings made against
    Mr. Woodsford:  see
CIBC v. Deloitte & Touche
, at para. 107.  The
    facts pleaded in the proposed amendments were put forward as a basis for the
    plaintiffs claim that Deloitte was estopped by the findings in the discipline
    proceedings from challenging in this lawsuit the plaintiffs allegation that Deloitte
    had failed to abide by the rules of professional conduct in the 1995 and 1996
    audits of Philip.  This appeal is not concerned with the merits of the
estoppel
argument.

III

the reasons of the motion judge

[10]

The
    motion judge began by explaining the relevance of the proper interpretation of
    s. 61 of the
CAA, 2010
to the motion to amend the pleadings.  He reasoned
    that, if s. 61 rendered the material relating to Mr. Woodsfords discipline
    proceedings inadmissible in the action, the proposed amendments to the
    statement of claim referring to the discipline proceedings and related material
    would be legally untenable and must be refused:  see
F. (M.) v. N.S.
(2000), 188 D.L.R. (4th) 296, at p. 310 (Ont. C.A.).  He further reasoned that,
    if s. 61 did not exclude from evidence the material relating to Mr. Woodsfords
    discipline proceedings, the amendments should be allowed, given the very broad
    mandatory language in Rule 26.01 of the
Rules of Civil Procedure
, R.R.O.
    1990, Reg. 194

governing amendments to pleadings.  No one takes issue
    with this part of the motion judges analysis.

[11]

The
    motion judge next moved to an interpretation of s. 61 of the
CAA, 2010
.  He referred to the plaintiffs argument that the words
    a proceeding under this Act in s. 61 could only refer to a proceeding under
    the
CAA, 2010
and
    said, at para. 117:

The Defendants do not dispute, and I agree with the Plaintiffs
    that giving s. 61 its literal and plain meaning, it does not apply to
    proceedings under the
Chartered Accountants Act, 1956
.

[12]

Ultimately,
    however, the motion judge rejected the plain meaning of s. 61 in favour of a
    meaning that extended the reach of s. 61 to proceedings conducted under the
CAA,
    1956
.  He gave four reasons for doing so:

·

The express reference to the
CAA, 1956
in other sections of the
CAA, 2010
was no reason for inferring that the 1956 Act was
    deliberately excluded from the scope of s. 61
(paras. 118-20).

·

The length of time that both the discipline proceedings against
    Mr. Woodsford and this action had taken made this case a rarity.  Section 61
    had to be interpreted with regard to the unforeseen circumstances presented by
    a rare case like this one (paras. 121-22).

·

Section 61 is a purely procedural provision and, by virtue of the
    common law principles of statutory interpretation and s. 52 of
Legislation
    Act, 2006
, S.O.

2006
, c. 21, Sch. F, the section should
    be interpreted retrospectively (paras. 123-25).

·

Interpreting s. 61 as applying only to proceedings under the
CAA,
    2010
would produce an absurd result in that it would defeat the purpose of
    the enactment which was to keep the discipline proceedings separate from
    subsequent civil proceedings (paras. 126-27).

[13]

The
    motion judge refused to permit the amendments to the claim.

IV

analysis

[14]

Statutory
    interpretation is a staple of the judicial diet.  The law reports are replete
    with descriptions of the modern approach to statutory interpretation.  That
    approach begins with the words of the provision under review as understood in
    their normal grammatical sense, but recognizes that words must be understood in
    the broader context in which they are used.  Context is a flexible concept:  see
Wood v. Schaeffer
, 2013 SCC 71, at para. 33;
Reference Re Broadcasting
    Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168
, 2012
    SCC 68, [2012] 3 S.C.R. 489, at paras. 11-12; and
R. v. Hajivasilis
,
    2013 ONCA 27, [2013] 114 O.R. (3d) 337, at para. 23.  I see no value in
    reiterating in general terms the approach a court must take to statutory interpretation.
    In this case, the statutory interpretation question comes down to this:  do the
    factors identified by the motion judge justify departing from the plain meaning
    of the words a proceeding under this Act in s. 61?

[15]

With
    respect, I do not think any of the factors identified by the motion judge
    justify a departure from the plain meaning of the words of s. 61.  This Act
    refers to the
CAA, 2010
only.  I will address the four factors
    identified by the motion judge but in a different order than he did.  Those
    factors are:

·

the principle that procedural rules operate retrospectively;

·

the principle that the legislature does not intend a meaning that
    defeats the purpose of the statute;

·

the significance to the interpretation of s. 61 of the other
    references to the
CAA, 1956
in the
CAA, 2010
; and

·

the significance of the unusual circumstances of this case.

(a)

The principle that procedural rules operate retrospectively

[16]

The
CAA, 2010
is one of three Acts enacted as Schedules to the
Accounting
    Professions Act, 2010
, S.O. 2010, c. 6.  Taken together, the three Acts regulate
    the accounting profession in Ontario.  The
CAA, 2010
, like its
    predecessor, the
CAA, 1956
, provides for the investigations of
    complaints against members of the Institute and establishes a process for adjudicating
    those complaints:
CAA, 2010
, ss. 33-39.  The complaints/discipline
    process created by the
CAA, 2010
is very similar to the process that
    existed under the
CAA, 1956
before
    it was repealed and replaced by the
CAA, 2010
.

[17]

Section
    61 is a new provision that has no equivalent in the
CAA, 1956
.  Section
    61 creates a rule of evidence that excludes the material identified in s. 61
    from evidence in the vast majority of civil proceedings.

[18]

Nothing
    in the
CAA, 1956
addressed the admissibility of material relating to
    discipline proceedings under that Act in civil proceedings.  The admissibility
    of that material was governed by the rules of evidence generally applicable to
    all civil proceedings such as
issue
    estoppel
, relevance, and hearsay.  Indeed, Deloitte referred to the
    potential admissibility in the civil proceedings of any decision the discipline
    committee might make relating to Mr. Woodsford when Deloitte unsuccessfully
    sought to delay those discipline proceedings pending the outcome of the various
    civil proceedings.
[1]

[19]

For
    ease of reference, I will repeat the language of s. 61:

No record of a proceeding under this Act and no document or
    thing prepared for or statement given at such a proceeding and no decision or
    order made in such a proceeding is admissible in any civil proceeding, other
    than a proceeding under this Act or a judicial review relating to a proceeding
    under this Act.

[20]

It
    is helpful to divide s. 61 into two parts for the purpose of considering the
    impact of the presumption that procedural rules operate retrospectively.  The
    first part of s. 61 identifies the subject matter or substance of the exclusionary
    rule created by the section.  That part of the section answers the question
    what material is rendered inadmissible?  The second part of s. 61 identifies
    the proceedings to which the exclusionary rule applies.  This part of the section
    answers the question in what proceedings does the exclusionary rule apply?

[21]

The
    subject matter of the evidentiary rule created by s. 61 is described in the
    first three clauses of the section:

·

a record of a proceeding under this
Act
;

·

a document, thing or statement prepared for or given at such a
    proceeding; and

·

a decision or order made in such a proceeding.

[22]

All
    of the material captured by the exclusionary rule created by s. 61 is material related
    to a proceeding under this Act.  That phrase describes the documents that are
    subject to the exclusionary rule.

[23]

The
    proceedings to which the exclusionary rule applies are identified in the last part
    of s. 61:

any civil proceeding other than a proceeding under this
Act
or a judicial review relating to a
    proceeding under this
Act
.

The evidentiary rule described in s. 61 has no
    application to a proceeding under the
CAA, 2010
.  It applies to all
    other civil proceedings, save for those caught by the narrow exception a
    judicial review relating to a proceeding under this Act.

[24]

As
    observed by the motion judge, at para. 88, procedural provisions are, in the
    absence of a legislative indication to the contrary, presumed to have
    immediate effect and apply retrospectively to existing proceedings.  While,
    as noted by Professor Sullivan, the use of the word retrospective in this
    context may be a misnomer, the common law has for at least 150 years presumed the
    immediate application of all procedural legislation to proceedings whether those
    proceedings were commenced before or after the enactment of that legislation:
    Ruth L. Sullivan,
Sullivan on the Construction of Statutes
, 5th ed. (Markham:
    LexisNexis, 2008), at pp. 696-98; see also
R. v. Dineley
, 2012 SCC 58,
    [2012] 3 S.C.R. 272, at para. 10, Deschamps J., for the majority, and at para.
    35, Cromwell J., dissenting.

[25]

Rules
    of evidence are generally regarded as procedural and subject to the presumption
    of immediate application:
R. v. Wildman
, [1984] 2 S.C.R. 311, at pp. 331-32;
R. v. E. (A.W.)
, [1993] 3 S.C.R. 155, at p. 189;
Dineley
; and
R. v. Bickford
(1989), 51 C.C.C. (3d) 181 (Ont. CA.)
.
    Section 61 is, no doubt, a rule of evidence.  Nothing in the language of s. 61
    could be read as rebutting the presumption in favour of immediate application.

[26]

I
    cannot accept the appellants submission that s. 61 is a substantive provision
    in that it removes the plaintiffs vested right to rely on the discipline proceedings
    to support the contention that Deloitte should be
estopped
from contesting some of the allegations of negligence
    advanced in this action
.
Issue
    estoppel

and related concepts are a means of proof and are
    generally regarded as part of the law of evidence.  Where
issue estoppel
applies, a party relies on
    the
estoppel
to establish a
    fact or facts, and the opposing party is foreclosed from challenging the fact
    or facts that are the subject of the
estoppel
:
    see
Penner v. Niagara (Regional Police

Services Board)
, 2013 SCC 19.

[27]

If
    s. 61 applies to the documents relating to Mr. Woodsfords discipline
    proceedings, it removes one evidentiary route by which the plaintiffs could
    potentially prove certain factual allegations in the claim.  Section 61 does
    not, however, alter the substance of the plaintiffs claim or their rights if
    the claim is established.  As Robins J.A.

explained
    in
Bickford
, at p. 189, in rejecting
    an argument that a change in the law eliminating the requirement of
    corroboration denied an accused the right to be acquitted absent corroboration
:

The right the respondent had was to be tried according to the
    rules and practices in force at the time of his trial.  The rules or practices
    with respect to corroboration are evidentiary or procedural requirements that
    may change from time to time.  When the respondents trial commenced in April
    1988, s. 586 had been repealed and was of no force or effect.  There was
    therefore no longer any right, if one had ever existed, available to be
    acquired.

[28]

Many
    rules of evidence introduced by statutory amendment will affect one partys
    ability to prove or disprove a claim in ongoing litigation.  That evidentiary
    disadvantage cannot be equated with the loss of a vested right or a substantive
    defence.  Section 61 is an evidentiary provision, part of the procedural law,
    and the presumption of immediate application applies.

[29]

Although
    I agree that the presumption of immediate application applies to s. 61, I do
    not agree that the presumption has any bearing on the interpretation of the
    phrase a proceeding under this Act in s. 61.  The presumption speaks only to
    the proceedings in which the evidentiary rule created by s. 61 will apply.  By
    virtue of the presumption, the exclusionary rule created by s. 61 applies to all
    civil proceedings (except those specifically exempted) regardless of whether
    the civil proceeding commenced before or after the enactment of the
CAA,
    2010
.  The presumption of immediate application operates in this case to make
    s. 61 applicable to this lawsuit, even though it was commenced before the
    enactment of the
CAA, 2010
.

[30]

The
    presumption of immediate application, however, has no role to play in
    determining the scope of the exclusionary rule created by s. 61 or, more
    specifically, the meaning of the phrase a proceeding under this Act.  Put
    somewhat differently, the presumption of immediate application means that s. 61
    applies to this lawsuit, but the presumption says nothing about whether
    material relating to the discipline proceedings conducted under the
CAA,
    1956
is excluded by s. 61.

[31]

The
    motion judge also referred to s. 52(4) of the
Legislation Act, 2006
in
    support of his analysis that s. 61 operated retrospectively to include material
    relating to proceedings under the CAA, 1956.  I do not think that s. 52(4)
    assists in interpreting the words a proceeding under this Act in s. 61.
    Section 52(4) of the
Legislation Act, 2006
, reads:

The procedure established by a new or amended Act or regulation
    shall be followed, with necessary modifications, in proceedings in relation to
    matters that happened before the replacement or amendment.

[32]

Section
    52(4) speaks to a situation in which a proceeding is brought under a new Act in
    relation to matters that happened before that new Act came into force.  For
    example, s. 52(4) would be relevant if, after May 2010, when the
CAA, 2010
came into force, the Institute commenced a proceeding in relation to events
    that occurred before May 2010.  Section 52(4) directs that, in that circumstance,
    the procedure in the new Act, the
CAA, 2010
, should be followed with
    necessary modifications.

[33]

This
    case is not concerned with a proceeding commenced under a new Act in relation
    to events that occurred before the new Act came into force.  There is no
    proceeding under a new or amended Act.  The discipline proceeding was carried
    out and completed under the prior legislation.  There is only an ongoing civil
    proceeding.  For the reasons explained above, s. 61 of the
CAA, 2010
applies in that ongoing civil proceeding.  There is no need to manipulate s.
    52(4) of the
Legislation Act, 2006
to achieve that end.  The
    respondents problem is not with the application of s. 61 to this lawsuit, but
    with the scope of the exclusionary rule created by s. 61.  Neither the presumption
    of immediate application nor s. 52(4) assists in stretching the words a
    proceeding under this Act beyond their plain meaning.

(b)

The principle that the legislature does not intend a meaning that defeats
    the purpose of the statute

[34]

The
    purpose or object of a statute or a specific provision within the statute is
    part of the context that must be taken into account when interpreting that
    statutory provision.  One assumes that the legislature did not intend to enact
    a provision in a statute that is inconsistent with the purpose of the statute.
    If the plain meaning of a statutory provision would defeat the purpose of the
    legislation or produce a capricious or arbitrary result, and there is a
    plausible contextual reading of the statute that is not inconsistent with its
    purpose, the plain meaning will be rejected in favour of that plausible reading:
    see
Rizzo & Rizzo Shoes Ltd. (Re)
, [1998] 1 S.C.R. 27, at pp. 43,
    49; and Sullivan, at pp. 304-306.

[35]

The
    search for the legislative purpose animating s. 61 focuses on the language used
    in that section and the related provisions in ss. 58-60.  The parties referred
    the court to the relevant excerpts from Hansard, but they were not helpful in
    identifying the purpose of s. 61.

[36]

Discerning
    legislative purpose entirely from statutory language and then using that
    purpose to give meaning to statutory language can quickly become a circular exercise:
    see
Hajivasilis
, at para. 49.  If the statutory purpose is framed in
    the very terms of the proposed interpretation of the relevant statutory
    language, it can hardly be surprising that the words of the provision are
    ultimately found to bear a meaning that supports the interpretation.  For
    example, the respondents describe the purpose of s. 61 as the prohibition of
    the use in civil litigation of material relating to Institute disciplinary
    proceedings.  If one accepts that description of the statutory purpose, then
    clearly an interpretation of s. 61 that distinguishes between proceedings under
    the
CAA, 2010
and proceedings under the
CAA, 1956
would defeat
    the purpose of the section.

[37]

I
    do not accept the purpose as described by the respondents.  In my view the
    purpose is slightly, but significantly, different.  The text of s. 61 is not
    framed in terms of discipline proceedings conducted by the Institute, but in
    terms of a proceeding under this Act.  It is the actual text of the statute
    that must control the articulation of its purpose.

[38]

I
    would describe the purpose of s. 61 as the creation of an evidentiary barrier
    preventing the use of material relating to a proceeding under this Act in
    civil proceedings.  That purpose is reinforced by the terms of s. 60 of the
CAA,
    2010
.  That section provides that persons involved in the administration
    of this Act are non-compellable in most civil proceedings in respect of
    information that those persons obtained in the course of their duties under the
Act
.

[39]

The
    plain reading of s. 61 suggests that the evidentiary barrier created by the
    section bars only material relating to proceedings under the
CAA, 2010
.
    The question becomes: does that plain meaning defeat the purpose of s. 61, or does
    it produce results that are arbitrary having regard to the purpose of s. 61?

[40]

The
    rationale for separating civil proceedings and discipline proceedings arising
    out of the same factual matrix must be understood.  In
F. (M.)
,
this court interpreted a provision in
    the
Regulated Health Professions Act, 1991
, S.O. 1991, c. 18 that,
    like s. 61, excluded from evidence in civil proceedings material relating to certain
    professional discipline proceedings.  Justice Laskin explained the rationale
    for the exclusionary rule, at p. 307:

The purpose of s. 36(3) is to encourage the reporting of
    complaints of professional misconduct against members of a health profession,
    and to ensure that those complaints are fully investigated and fairly decided
    without any participant in the proceedings  a health professional, a patient,
    a complainant, a witness or a College employee  fearing that a document
    prepared for College proceedings can be used in a civil action.

[41]

The
    justification for the evidentiary separation of the proceedings is consistent with
    the application of the exclusionary rule in s. 61 on a going-forward basis
    only.  Neither the promise of exclusion made with the enactment of the
CAA,
    2010
in May 2010, nor the actual exclusion from evidence in a civil
    proceeding after May 2010, of material relating to a long-completed discipline
    proceeding conducted under the
CAA, 1956
,
could possibly facilitate the full, frank, and fair
    disposition of that complaint.  That ship sailed long ago.

[42]

Similarly,
    the exclusion of material relating to a complaint made under the
CAA, 1956
from a civil proceeding held after May 2010 will not encourage individuals to
    bring complaints to the Institute.  An act of encouragement, by its very
    nature, occurs before the act that is sought to be encouraged.  Putative
    complainants will be encouraged to come forward by the knowledge that s. 61
    will apply to any complaints they make.  That encouragement is achieved by
    reading s. 61 as written and applicable only to complaints made under the
CAA,
    2010
.  The making of complaints is not encouraged by reaching the
    exclusionary rule backward to documents relating to complaints that were made
    at a time when complainants knew that material relating to the complaints
    process could find its way into evidence in civil proceedings.

[43]

The
    plain meaning of s. 61 distinguishes, for the purposes of the operation of the
    exclusionary rule created by s. 61, between proceedings under the
CAA, 2010
and proceedings under the
CAA, 1956
.  Material relating to the former are
    inadmissible in civil proceedings, while identical material, if it relates to
    proceedings under the latter, is admissible.  In my view, this distinction is
    not arbitrary, but is consistent with the rationale underlying the purpose of s.
    61.  The purpose of the provision can be fully honoured without departing from
    the plain meaning of the words used by the legislature.

[44]

In
    oral argument, Mr. Heintzman, for the respondents, put forward a second purpose
    underlying the exclusionary rule in s. 61.  He argued that s. 61 served to enhance
    the efficacy of civil proceedings by excluding material relating to discipline
    proceedings because that material was inherently unreliable as evidence in a civil
    proceeding.  Certainly, if this were a purpose of s. 61, a distinction between
    material generated under the
CAA, 1956
and material relating to
    proceedings under the
CAA, 2010
would be arbitrary.

[45]

I
    read nothing in the language of s. 61 to suggest that it was meant to protect
    the fact-finding process in civil proceedings by excluding presumptively
    unreliable material.  The exclusion of relevant evidence based on its
    unreliability is generally seen as a fact-specific inquiry to be left to trial
    judges.  The language of s. 61 does not support the contention that the
    legislature intended to deviate from this long and well-established paradigm.

(c)

The significance of the other references to the
CAA,
    1956

[46]

Before
    the motion judge, and again on appeal, the appellants argued that specific
    references to the
CAA, 1956
in other sections of the
CAA, 2010
(ss. 38(4), 63(2), 65) supported the contention that, as s. 61 did not refer to
    the
CAA, 1956
, the exclusionary rule in s. 61 did not apply to material
    relating to proceedings under the
CAA, 1956
.  Like the motion judge, I
    think the three sections referred to by the appellants serve a very different
    purpose than does s. 61.  Those three provisions address transitional matters that
    would inevitably arise with the repeal of the
CAA, 1956
and its
    replacement by the
CAA, 2010
.  Section 61 is not a transitional
    provision.  I agree with the motion judge that the references to the
CAA,
    1956
in the three sections referred to by the appellants do not assist in interpreting
    s. 61.

[47]

I
    cannot, however, agree with the motion judge that the interpretation of s. 61
    in a manner consistent with its plain meaning depends on drawing the inference
    that the 1956
Act

was
    deliberately excluded from the scope of s. 61.  Section 61 does not mention the
CAA, 1956
.  The issue is not whether the Legislature deliberately
    excluded the
CAA, 1956
from s. 61, but whether a context-driven
    analysis of s. 61 demands that the section be read as including the
CAA,
    1956
despite the express language to the contrary.  In my view, it does
    not.

[48]

The
    reference to the
CAA, 1956
in the other sections of the
CAA, 2010
does not assist in answering the statutory interpretation question raised
    here.  More precisely, it does not help the respondents contention that the
    plain meaning of s. 61 must be abandoned in favour of a meaning that includes
    material relating to the
CAA, 1956
.

(d)

The significance of the unusual circumstances

[49]

The
    motion judge said, at para. 121:

Further, a legislature will not and cannot anticipate every
    consequence of its legislation and the circumstances in which the legislation
    will be applied.  The scope of the legislation may have to be interpreted for
    unforeseen circumstances.

[50]

The
    motion judge went on to describe this proceeding as a rarity, mainly because
    the civil proceedings remained extant 16 years after the alleged negligent
    audits and 13 years after the action was commenced.

[51]

The
    motion judge did not refer to any authority for the proposition that unusual
    circumstances may affect the interpretation of a statutory provision.  Nor was
    this court provided with any authorities to that effect.  Whatever the merits
    of that proposition, it is not engaged here. There is nothing unusual in the circumstances
    of this case that is relevant to the interpretation of s. 61.  The lengthy
    period of time that has passed since the relevant events occurred and the
    length of time this action has been ongoing are irrelevant to the proper
    interpretation of s. 61.  The interpretative question that arises here will
    arise in any case where a party seeks to introduce documents relating to
    proceedings under
CAA, 1956
in a civil proceeding, regardless of when
    that proceeding was commenced, or when the relevant events occurred.

[52]

The
    possibility that a party in a civil proceeding might seek to introduce
    documents relating to a discipline proceeding under the
CAA, 1956
was certainly
    very real in May 2010 when s. 61 came into effect along with the rest of the
CAA,
    2010
.  That possibility remains a realistic one today and for the
    immediate future.  There was nothing unusual or rare in the circumstances that was
    relevant to interpreting s. 61.

V

conclusion

[53]

There
    is no reason to deviate from the plain meaning of s. 61.  It renders documents
    relating to proceedings under the
CAA, 2010
inadmissible in most civil
    proceedings, including this proceeding.  Section 61 has no effect on the
    admissibility in civil proceedings of documents relating to proceedings under the
CAA, 1956
.  The motion to amend the pleadings should have been
    allowed.

[54]

I
    would allow the appeal, set aside the order below, and grant the appellants
    leave to amend in accordance with the amended consolidated statement of claim
    filed on the motion.
[2]

[55]

There should be no order of costs for or against the intervener.  Costs
    as between the appellants and respondents shall be in the cause.

RELEASED:  DD  FEB 03
    2014

Doherty
    J.A.

I
    agree S.T. Goudge J.A.

I
    agree P. Lauwers J.A.

[1]
Although Deloitte emphasized concerns that it might be required to produce
    material generated by the discipline proceedings in the civil action, it also
    raised the concern that any conviction of Mr. Woodsford might be admissible as
prima
    facie
evidence against Deloitte in the civil proceeding.

[2]
Deloitte brought a cross-motion seeking an order that the material relating to
    Mr. Woodsfords discipline proceedings was inadmissible pursuant to s. 61.  The
    motion judge dismissed the cross-motion as premature without prejudice to
    arguments at trial that evidence was not admissible because of s. 61.  It
    follows from my reasons that the cross-motion should simply have been
    dismissed.