COURT OF APPEAL FOR ONTARIO

CITATION:
Mio v. Romano, 2012
    ONCA 451

DATE: 20120627

DOCKET: C54114/C54128

Cronk, Juriansz and Epstein JJ.A.

BETWEEN

Richard Mio

Plaintiff/Creditor (Respondent)

and

Frank Romano

Defendant/Debtor (Appellant)

and

Homelife Romano Realty
    Ltd.

Garnishee (Appellant)

B. Romano, for the garnishee/appellant

L. Marzinotto, for the defendant/debtor(appellant)

A. Riswick, for the plaintiff/creditor (respondent)

Heard: May 9, 2012

On appeal from the order of Justice Anne M. Mullins of
    the Superior Court of Justice dated June 30, 2011.

ENDORSEMENT

[1]

These reasons relate to two appeals from the order of Mullins J. of the
    Superior Court of Justice dated June 30, 2011. The respondent Mio, as judgment
    creditor, had brought a motion for an order requiring the appellant Homelife,
    as garnishee, to pay the sum of $124,366.14 to the Sheriff pursuant to a notice
    of garnishment he had served on Homelife relating to the judgment debt of the
    other appellant, Romano.

A.

Facts

[2]

The facts are as follows. Mio and Romano were two of three partners in a
    numbered company. Romano held all the shares of the partners in trust. The
    company owned a property. When the property was sold, Romano, who received the
    funds, paid himself and the other partner, but failed to pay anything to Mio.
    Mio obtained summary judgment against Romano in the amount of $221,832.29 in
    2005. On March 27, 2006, Mio issued a notice of garnishment on Homelife, the
    company that employed Romano and was owned by his father.

[3]

Romano made an assignment in bankruptcy on September 13, 2006. On
    December 7, 2006, Registrar Nettie made an order that ss. 69 - 69.3 of the
Bankruptcy
    and Insolvency Act
,

R.S.C. 1985, c. B.3 (
BIA

) no longer operated to stay Mios
    action against Romano but that no steps should be taken to enforce any judgment
    until the trustee in bankruptcy was discharged or further order of the court.
    Romano received a discharge from bankruptcy on June 14, 2007. Homelife received
    a written notice from the Trustee indicating that Romano had been discharged
    from bankruptcy and had been released from all debts except those referred to
    in s. 178(1) of the
BIA
. Homelife alleges that on July 5, 2007,
    the trustee advised it that it was not required to send any payments to Mio,
    the creditor. The trustee in bankruptcy was discharged on November 27, 2009. No
    monies were remitted to the Sheriff under the notice of garnishment.

[4]

On an examination-in-aid-of-execution in March 2010, Romano acknowledged
    that Homelife had paid him approximately $75,000 in 2008 and $49,366.14 in
    2009. Mio brought the motion for an order to have Homelife, as garnishee, pay
    these amounts to the Sheriff. Counsel advised that the amount now in issue is
    $50,000.

[5]

The motion judge found that the judgment debt owed by Romano to Mio fell
    within s. 178(1) of the
BIA
and was not discharged by Mio's assignment
    in bankruptcy and his subsequent discharge. The motion judge also found that
    the enforcement of the judgment was not subject to a condition within the
    meaning of rule 60.08(2) of the
Rules of Civil Procedure
, so as to
    require leave for the issuance of a garnishment notice. In the event that such
    leave was necessary, she granted leave,
nunc pro tunc
. Finally, the
    motion judge also ordered a trial of issues as to whether in fact the trustee
    in bankruptcy had advised Homelife of any circumstances that would estop Mio
    from enforcing the garnishment notice as against Homelife and, if estoppel does
    not apply, to determine the quantum of the monies that Homelife is obliged to
    remit to the Sheriff.

B.

Romanos Appeal

[6]

Romano appeals the entire order of the motion judge raising several
    procedural issues. He argues that the motion judge erred by refusing him an
    opportunity to make submissions on the motion, by granting relief not contained
    in the notice of motion, by refusing Romano an adjournment for the purpose of
    filing responding material, by considering material that was not before the
    summary judgment motion judge, and by finding that Mios judgment survived
    Romanos bankruptcy under s. 178(1) of the
BIA
.

[7]

Romano's procedural arguments are without merit. The motion was case
    managed. His counsel participated in the case management process. It was clear
    that his counsel did not intend to file material on the motion. The relief sought
    on the motion  that the garnishee remit money that it had improperly paid to
    Romano  necessarily required a determination that the debt survived the bankruptcy.
    This was sufficient to raise the question whether the debt had been released by
    Romano's discharge from bankruptcy. Moreover, para. 5 of Mios notice of motion
    explicitly addressed the issue whether the judgment was based on a
    misappropriation of funds and was not discharged.

[8]

Accordingly, it cannot be said that the motion judge went beyond the
    relief contemplated by Mios notice of motion. The fact that a determination
    had to be made as to whether the debt fell within s. 178 was the foundation of
    the relief sought. We note that at no time prior to the motion did Romano take
    the position that the debt was not enforceable.

[9]

We see no error on the part of the motion judge in limiting the
    submissions of Romanos counsel and in refusing Romanos request for an
    adjournment. Counsel had filed no material on the motion and had indicated at
    the outset that she did not intend to make any submissions. Her request for an
    adjournment was made late, toward the end of the hearing.

[10]

Romano
    cites no authority or rationale for the proposition that it was improper for
    the motion judge to consider material that was not before the summary judgment
    motion judge or that the motion judge should not have proceeded to grant relief
    on the garnishment hearing without having all the material that was filed
    before the summary judgment motion judge.

[11]

The
    material before the motion judge, which included the pleadings in the action
    and the reasons of the summary judgment motion judge, amply supported her
    conclusion that the judgment debt fell within the meaning of s. 178(1) of the
BIA
and, hence, survived Romanos bankruptcy. The record before the motion judge
    established that Romano had received the monies in a fiduciary capacity, that
    he failed to remit to Mio the funds to which Mio was plainly entitled and
    that he further failed to provide any explanation for this failure. In these
    circumstances, his wrongful retention of Mios funds met s. 178(1) of the
BIA
.

C.

Homelifes Appeal

[12]

Homelife
    first argues that the stay of Mios execution of the judgment debt against
    Romano continued in effect after the trustee was discharged. That proposition
    is at odds with s. 69.3(1.1) of the
BIA
, which provides that a stay of
    proceedings under s. 69.3(1) ceases to apply  on the day on which the trustee
    is discharged.

[13]

Homelife
    next argues that the enforcement of Mio's judgment debt against Romano became
    subject to a condition within the meaning of rule 60.08(2), such that it could
    no longer be enforced without leave of the court. It submits that the condition
    stems from the intervening bankruptcy of the debtor which, it says, made the
    enforcement of the judgment subject to the condition that it first be found to
    survive Romano's discharge from bankruptcy. This, in turn, required that a new
    notice of garnishment be obtained, with leave of the court.

[14]

We
    do not agree. In our view, rule 60.08(2) has no application to this case. The
    judgment obtained by Mio was unconditional when granted. Accordingly, Mio did
    not require leave of the court to issue the notice of garnishment on March 27,
    2006. The notice, once issued, was stayed upon Romano's assignment into
    bankruptcy. But the stay ceased to apply when the trustee was discharged. When
    the stay ceased to apply, the notice of garnishment was revived and there was
    no impediment to enforcement by Mio of his judgment.

[15]

We
    do not accept Romanos submission that if leave to issue a new garnishment
    notice is not required, commercial uncertainty arises regarding the obligations
    of a garnishee. The notice of garnishment clearly and unambiguously sets out
    those obligations, including the risk of double payment. A garnishee may avoid
    that consequence by complying with the notice of garnishment.

D.

Disposition

[16]

The
    appeals are dismissed. As agreed by counsel, the respondents costs against
    Homelife are fixed in the amount of $5,000, and against Romano, in the amount
    of $6,500, both amounts including disbursements but not applicable taxes.

E.A. Cronk J.A.

R.G. Juriansz J.A.

G.J. Epstein J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Mohamed v. Salad, 2012
    ONCA 439

DATE: 20120621

DOCKET: C53877

Gillese, Rouleau and Epstein
    JJ.A.

BETWEEN

Abdulkadir Mohamed

Appellant

and

Maria Salad

Respondent

Joseph Osuji, for the appellant

Ahmad Baksh, for the respondent

Heard: June 18, 2012

On appeal from the judgment of Justice Douglas Gray of
    the Superior Court of Justice, dated June 7, 2011.

APPEAL BOOK ENDORSEMENT

[1]

The appellant raises two issues on appeal:

1.

spousal support;
      and

2.

entitlement to
      an in interest in the home registered in the respondents name.

[2]

The trial judge found that the parties separated no later than March of
    2000. This finding was based on the appellants own affidavit. The trial judge
    went on to find that the parties never lived in the property in question as
    husband and wife. While the appellant was in the property periodically in order
    to babysit the children, the property was not a matrimonial home within the
    meaning of the family law legislation.

[3]

Furthermore, the trial judge rejected the appellants evidence that the
    contributed $54,000 in cash towards the cost of the property. The trial judge
    was entitled to make that finding on the evidence before him.

[4]

As for spousal support, the trial judge found that the appellant had not
    furnished evidence sufficient to establish an entitlement to spousal support.
    The appellant has pointed to no such evidence on this appeal.

[5]

Accordingly, the appeal is dismissed with costs to the respondent fixed
    at $2000, inclusive of disbursements and all applicable taxes.


COURT OF APPEAL FOR ONTARIO

CITATION:
Omers Realty
    Corporation v. Ontario (Finance), 2012 ONCA 400

DATE: 20120612

DOCKET: C54775, C54776, C54777 and C54778

Rosenberg, MacPherson and Cronk JJ.A.

IN THE MATTER OF the
Land Transfer Tax Act
,
    R.S.O., c. L.6, as amended

BETWEEN

Omers Realty Corporation, Omers Administration
    Corporation and Price Waterhouse Coopers Inc.

Appellants/ Respondents in Appeal

and

The Minister of Finance

Respondent/Appellant in Appeal

Sara Blake, Lori Patyk, and Ananthan Sinnadurai, for the
    appellant

Joseph M. Steiner, for the respondents

Heard: June 7, 2012

On appeal from the judgment of Justice Thomas R. Lederer
    of the Superior Court of Justice, dated November 16, 2011.

ENDORSEMENT

[1]

The Ontario Minister of Finance appeals from the judgment of Lederer J.
    of the Superior Court of Justice dated November 16, 2011, holding that the
    Ontario Municipal Employees Retirement System (OMERS) Board and two of its subsidiaries
    were Crown agencies and therefore did not have to pay taxes under the
Land
    Transfer Tax Act
, R.S.O. 1990, c. L.6 (the
LTTA
).

[2]

The appellant contends that the motion judge erred in two respects: (1)
    in finding that OMERS was a Crown agency within the meaning of the
Crown
    Agency Act
, R.S.O. 1990, c. C. 48 (the
CAA
); and (2) in finding
    that OMERS subsidiaries, Shoppers World Brampton Holdings Inc. and OMERS
    Realty Corporation, which invested in commercial real estate, were Crown
    agencies within the meaning of the
CAA
.

[3]

We do not accept these submissions. On both issues, we explicitly
    endorse the analysis and conclusions of the motion judge, including his
    analysis of the relevant statutes, regulations, directives and case law.

[4]

On the first issue, the motion judge correctly focussed on the
    Governments
de jure
control of the OMERS Board and, in our view,
    correctly concluded that at the material time, the OMERS Board was a Crown
    agency.

[5]

On the second issue, again after a careful review of the relevant
    statutes, directives and case law, the motion judge concluded:

[T]he statutory scheme exempts Crown agencies, in this case the
    OMERS Board, from having to pay land transfer tax. The scheme recognized that
    the OMERS Board could act through subsidiaries and allowed for subsidiaries
    that held real estate to be wholly-owned. It would be inconsistent with the
    scheme to find that these subsidiaries were not Crown agencies and, thus,
    remove the benefit to which the OMERS Board would otherwise be entitled.

We agree with this analysis and conclusion.

[6]

Finally, we note that the application judges conclusion is consistent
    with the position the Minister took from at least 1984 to 1999. In a series of
    formal responses to requests from OMERS, the Minister confirmed, in 1984, 1988,
    1991 and 1995, that the OMERS Board and its subsidiaries were Crown agencies
    for the purposes of the
LTTA
. Typical of these responses was the
    letter from the Ministry on March 9, 1995:

We have now completed our review of this file and wish to
    confirm that we are satisfied that the Ontario Municipal Employees Retirement
    System is indeed a Crown agency and any corporation, such as OMERS Realty
    Corporation, that is wholly owned by them would also be deemed to be a Crown
    agency for purposes of the Land Transfer Tax Act.

[7]

In addition, when the Government decided to change its policy in this
    domain, it did so by enacting a law that expressly provided that OMERS was no
    longer a Crown agency: see
Ontario Municipal Employees Retirement System
    Act
, S.O. 2006, c. 2.

[8]

The appeal is dismissed. The respondents are entitled to their costs of
    the appeal fixed at $30,000, inclusive of disbursements and all applicable
    taxes.

M.
    Rosenberg J.A.

J.C.
    MacPherson J.A.

E.A.
    Cronk J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Ontario
    Deputy Judges' Association v. Ontario (Attorney General), 2012
    ONCA 437

DATE: 20120625

DOCKET: C54796

OConnor A.C.J.O., Rosenberg and Simmons JJ.A.

BETWEEN

Ontario Deputy Judges Association

Applicant (Appellant in Appeal)

and

The Attorney General of Ontario

Respondent (Respondent in Appeal)

P. David McCutcheon and Kathleen Burke, for the
    applicant (appellant in appeal)

Robert E. Charney and Josh Hunter, for the respondent
    (respondent in appeal)

Heard:  June 18, 2012

On appeal from the order of Justice Kevin Whitaker of the
    Superior Court of Justice, dated November 25, 2011, with reasons reported at
    2011 ONSC 6956, 108 O.R. (3d) 429.

ENDORSEMENT

[1]

We agree with the application judge that the process for renewing the
    appointments of Deputy Judges of the Small Claims Court (Deputy Judges) does
    not infringe the principles of judicial independence.

[2]

Pursuant to s. 32(1) of the
Courts of Justice Act
, R.S.O. 1990, c. C-43, as amended (the
CJA
)
, a Regional Senior Judge of the
    Superior Court may, with the approval of the Attorney General, appoint a lawyer
    to act as a Deputy Judge of the Small Claims Court for a period of three
    years.  Deputy Judges sit on a part-time basis.  Presently, there are
    approximately 400 Deputy Judges and they sit on average 19 days a year.

[3]

This appeal involves the reappointment process for Deputy Judges.
    Pursuant to s. 32(4) of the
CJA
, subject to an age restriction, a
    Regional Senior Judge has the authority to renew the appointment of a Deputy
    Judge for a term of three years.  The Attorney General is not involved in the
    decision to renew or not to renew an appointment.

[4]

The appellant, the Ontario Deputy Judges Association, argues that the
    reappointment process violates the principles of judicial independence because
    the process does not comply with the principle of security of tenure.

[5]

The appellant does not argue that renewable fixedterm appointments are
    inconsistent with judicial independence, nor does it argue that the
    reappointment process has resulted in an actual loss of independence for Deputy
    Judges.  Rather, the appellant contends the reappointment process undermines
    the institutional independence of a Small Claims Court such that a reasonable
    person, fully informed of all the circumstances, would not consider the Small
    Claims Court to be independent.

[6]

We do not accept this argument.  In our view, the appellants argument
    is answered by the Supreme Court of Canadas decision in
R. v. Valente
,
[1985] 2 S.C.R. 673.  In that case, the
    post-retirement security of tenure of provincial judges was challenged.  At the
    time, Ontario provincial judges served until age 65 and then could be
    reappointed by the Executive to serve during pleasure.  The Supreme Court
    objected to the post-65 tenure of provincial judges because it was a tenure
at
    the pleasure of the Executive
.  However, the court spoke approvingly of
    proposed amendments to the
CJA
pursuant to which judges would be
    allowed to continue in office between the ages of 65 and 70 with the annual
    approval of the Chief Justice and thereafter until age 75 with the annual
    approval of the Ontario Judicial Council (essentially renewable 1-year
    fixed-term appointments).

[7]

Justice Ledain, writing for the court, held (at para. 39):

This change in the law, while creating a post-retirement status
    that is by no means ideal from the point of view of security of tenure, may be
    said to have removed the principal objection to the provision which applied
    when Sharpe J. declined jurisdiction since it replaces the discretion of the
    Executive by the judgment and approval of senior judicial officers who may be
    reasonably perceived as likely to act exclusively out of consideration for the
    interests of the Court and the administration of justice generally.

[8]

We note that the proposed amendments upon which the Supreme Court
    commented did not include criteria to guide the decision of the Chief Justice
    for approving the year-to-year renewal of appointments of judges between the
    ages of 65 and 70, nor did it set out the process by which such approvals would
    be considered.

[9]

We see no basis upon which to distinguish
Valente
.

[10]

We
    agree with the application judge that having regard to the nature of the
    jurisdiction of the Small Claims Court and the presumption that a Regional
    Senior Judge will act in the best interest of the administration of justice,
    that a reasonable and well informed observer would conclude that the Deputy
    Judges and the Ontario Small Claims Court are sufficiently independent so as to
    satisfy constitutional requirements.

[11]

We
    also endorse the application judges comment as follows (at para. 62):

Without doubt, the [Small Claims Court] plays an important and
    unique role in the justice system.  It is absolutely essential that the [Small
    Claims Court] institutionally and the [Deputy Judges] personally, be regarded
    as independent.

[12]

We are satisfied that the system for renewal of the appointments of
    Deputy Judges does not undermine this independence.

[13]

The appeal is dismissed.

D. OConnor A.C.J.O.

M. Rosenberg J.A.

J. Simmons J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Optrust Forecast
    Inc. v. Wild Wing Restaurants Inc., 2012 ONCA 450

DATE: 20120625

DOCKET: C53995

Goudge, Feldman and Gillese JJ.A.

BETWEEN

Optrust Forecast Inc.

Plaintiff/
    Defendant by Counterclaim (Respondent)

and

Wild Wing Restaurants Inc.

Defendant/
    Plaintiff by Counterclaim (Appellant)

No one appeared for the appellant

Charles Sinclair, for the respondent

Heard: June 25, 2012

On appeal from the judgment of Justice Carole Brown of
    the Superior Court of Justice, dated June 13, 2011.

APPEAL BOOK ENDORSEMENT

[1]

No one appeared for the appellant. Counsel was removed May 8, 2012. The
    appeal is dismissed. Costs to the respondent fixed at $5000 inclusive of
    disbursements and applicable taxes.


COURT OF APPEAL FOR ONTARIO

CITATION: PC
    Ontario Fund v. Essensa, 2012 ONCA 453

DATE: 20120627

DOCKET: C54654

Sharpe, Gillese and Epstein JJ.A.

BETWEEN

PC Ontario Fund and Progressive Conservative
    Party of Ontario

Applicants (Appellants)

and

Greg Essensa, Chief Electoral Officer

Respondent (Respondent)

W. Thomas Barlow and Z. Maladwala, for the appellants

John B. Laskin and Andrew Bernstein, for the respondent

Paul Cavalluzzo, for the intervener Working Families
    Coalition (Canada) Inc.

Jack B. Siegel and Melanie Francis, for the intervener
    Laura Miller on behalf of the Ontario Liberal Party

Heard: June 21, 2012

On appeal from the order of the Divisional Court (Wilson,
    Swinton and Lederer JJ.), dated April 27, 2011 with reasons reported at 2011
    ONSC 2641.

By the
    Court:

[1]

This appeal arises from an application for judicial review of the
    actions taken by the respondent Chief Electoral Officer of Ontario (the CEO)
    in response to the complaint of the appellant Progressive Conservative Party of
    Ontario (the PCPO) relating to alleged contraventions of the
Election
    Finances Act
, R.S.O. 1990, c. E.7 (the
EFA
) and of the CEOs
    decision to register the intervener Working Families Coalition (Canada) Inc.
    (the WFC) as a third party pursuant to the
EFA
during the 2007
    provincial election campaign.

[2]

In August 2007 the PCPO made a complaint to the CEO alleging that there
    was strong
prima facie
evidence that the WFC was in effect the agent
    of the Ontario Liberal party (OLP) and that both the WFC and the OLP had
    committed offences under the
EFA
by failing to disclose contributions
    and campaign spending that should have been attributed to the OLP. The CEO
    retained outside counsel and a forensic accountant to investigate the
    complaint. After conducting an investigation in cooperation with the office of
    the CEO, counsel advised the CEO that the evidence did not warrant reporting
    the matter to the Attorney General of Ontario as an apparent contravention of
    the
EFA
. The CEO advised the PCPO of the results of the investigation
    and of his decision not to refer the matter to the Attorney General.

[3]

Dissatisfied with that outcome, the appellants sought judicial review to
    quash the CEOs decision, to declare that the CEO had failed to carry out his
    statutory duties, and to require the CEO to report apparent violations of the
EFA
to the Attorney General. The appellants also challenged the CEOs decision to
    register WFC as a third party pursuant to the
EFA
.

[4]

The Divisional Court dismissed the application for judicial review on
    the grounds:

(1)

that the impugned actions
    of the CEO relating to the appellants complaint are not subject to judicial
    review; and

(2)

that the decision to
    register WFC as a third party during the 2007 provincial election campaign is
    moot.

[5]

The appellants ask us to reverse the Divisional Court's decision on
    these preliminary grounds and to either deal with the substantive grounds for
    judicial review or refer the matter back to the Divisional Court.

[6]

As we see no error on the part of the Divisional Court with respect to
    these preliminary points, we find it unnecessary to deal with the substantive
    issues.

1. Judicial Review

[7]

The appellants rely on s. 2(1)(d) of the
EFA
, a provision
    concerning the CEOs powers of investigation:

2.
    (1) The Chief Electoral Officer, in addition to his or her other powers and
    duties under this Act and the
Election Act
, shall,

(d) conduct periodic investigations
    and examinations of the financial affairs and records of registered parties,
    registered constituency associations, registered candidates, registered
    leadership contestants and registered third parties in relation to election
    campaigns;

(g) report to the Attorney General
    any apparent contravention of this Act or sections 7 to 13 of the
Taxpayer
    Protection Act, 1999
;

[8]

In oral argument before us, counsel also referred to ss. 2(c), (h), (j)
    and (j.2) giving the CEO the power to examine financial returns filed under the
EFA
, prescribe forms and guidelines, and to publish filed returns on
    the internet.

[9]

The CEO is an officer of the Legislative Assembly. The CEO is
    responsible for the administration of the
Election Act
, R.S.O. 1990, c. E.6,
and is required to
    make an annual report to the Speaker on his administration of the
EFA
:
    s. 2(4). The CEO is also required to make recommendations after each general
    election relating to changes in limits on election contributions, expenses, and
    public funding: s. 2(5).

[10]

The
    legislative scheme established by the
EFA
is materially different from
    those established under the
Canada Elections Act
, S.C. 2000, c. 9, ss.
    509-10 and the
Municipal Elections Act
, 1996, S.O. 1996, c. 32, ss 81,
    81.1, which provide frameworks that give rise to specified statutory duties in
    relation to the receipt, investigation and disposition of specified complaints.
    The duty imposed by s. 2(1)(d) of the
EFA
to conduct periodic
    investigations and examinations, particularly when read in the context of the CEOs
    manner of appointment and reporting relationship to the Speaker of the
    Legislative Assembly, does not create any legally enforceable right to compel
    the CEO to conduct an investigation into a particular or specific complaint.

[11]

We
    agree with the Divisional Court that under the statutory scheme established by
    the
EFA
, the CEOs decision to investigate the PCPOs allegations, the
    manner in which he chose to conduct that investigation and his decision not to
    report the matter to the Attorney General as an apparent contravention, are not
    susceptible to judicial review.

[12]

When
    he dealt with the appellants allegations involving the WFC, the CEOs decision
    not to report the complaint to the Attorney General did not decide or determine
    any legal rights. The CEOs treatment of the complaint made by the appellants
    may well have had significant political consequences. However, it did not amount
    to a decision affecting the legal rights, interests, property, privileges or
    liberty of any person or party. It was not, therefore, a decision amenable to
    review under the traditional prerogative writs and it did not amount to the
    exercise of a statutory power of decision within the meaning of the
Judicial
    Review Procedure Act
, R.S.O. 1990, c. J.1, ss. 1 and 2(1). From a legal
    perspective, the CEOs decision was analogous to that of a police officer
    refusing to lay a charge or a crown attorney declining to prosecute a case on
    the ground that there is no reasonable prospect of a successful prosecution. The
    appellants plea to afford the
EFA
a purposive interpretation that
    would make the decision susceptible to judicial review amounts to a plea to
    create a different statutory regime, and that we cannot do.

[13]

Nor
    do we accept the submission made in oral argument that judicial review should
    issue to compel the CEO to require the OLP and the WFC to file fresh financial
    statements. This request was not clearly advanced before the Divisional Court
    and, in any event, we see no statutory basis for such an order.

2. Mootness

[14]

The
    Divisional Court's discretionary decision to dismiss the appellants
    application for judicial review of the registration of the WFC as a third party
    on grounds of mootness attracts deference in this court. We see no error of law
    that could justify appellate intervention.

[15]

The
    impugned decisions concerned the 2007 provincial election. The appellants
    submit that the same legal issue could arise in the future and that given the
    short time frame of elections, it will be difficult for them to bring the
    matter before the court. They submit that the Divisional Court erred by failing
    to hear the issue on the grounds that it is evasive of review in the future.

[16]

Given
    the overlap in the issues raised, it might be possible to infer from the CEOs refusal
    to report the appellants complaint to the Attorney General that the
    explanation he gave and the legal analysis that underpinned that decision also
    explained his decision to register the WFC as a third party.  However, the CEO
    was not required to give reasons for his decision to register the WFC and he
    did not do so. That decision was not challenged at the time and is now five
    years old. Should the WFC seek registration in a future election, the CEO would
    have to consider the matter afresh on the basis of the facts that arise at that
    time.

[17]

In
    these circumstances, it is our view that it was open to the Divisional Court to
    refuse to review the decision on grounds of mootness. While the Divisional
    Court did not explicitly advert to the evasive of review point, it did
    observe, at para. 26, that for the matter to arise again, the WFC would have to
    file a fresh application and the CEO will be required to issue a decision on
    this fresh application in light of the criteria set out in s. 37.5 of the
EFA
and based on the information provided in the application. We agree with that
    observation. Any decision on third party registration would be highly fact
    specific. We are not persuaded that the interests of judicial economy would be
    served by requiring either this court or the Divisional Court to review a five-year-old
    decision that, given its nature, is not capable of governing or controlling
    future decisions.

[18]

We
    also agree with the Divisional Court that to decide this issue now would be to
    engage in the abstract interpretation of legislative provisions. In the light
    of the structure set up by the
EFA
and the nature of the duties
    imposed on the CEO, this would offend the principle described in
Borowski
    v. Canada (Attorney General)
, [1989] 1 S.C.R. 342, at p. 362, that [p]ronouncing
    judgments in the absence of a dispute affecting the rights of the parties may
    be viewed as  intruding into the role of the legislative branch.

Disposition

[19]

For
    these reasons the appeal is dismissed. The respondent CEO is entitled to costs
    of the appeal and application for leave to appeal fixed at $25,000 inclusive of
    disbursements and applicable taxes. The interveners asked for time to review
    the matter of costs. If costs are in issue, those affected may file brief
    written submissions.

Robert J. Sharpe J.A.

E.E.
    Gillese J.A.

G.J. Epstein J.A.

Released: June 27, 2012


COURT OF APPEAL FOR ONTARIO

CITATION:
Penn-Co
    Construction Canada (2003) Ltd. v. Constance Lake First Nation, 2012 ONCA 430

DATE: 20120622

DOCKET: C54604

Goudge, Juriansz and Ducharme JJ.A.

BETWEEN

Penn-Co Construction Canada (2003) Ltd.

Plaintiff (Respondent)

and

Constance Lake First
    Nation, Constance Lake Education Authority
, Donald Courtnage, Paul Allan
    Seguin c.o.b. as Anokii & Associates, Anokii & Associates, Eric Leat and
    The Attorney General of Canada representing The Minister of Indian Affairs and
    Northern Development

Defendants (Appellants)

AND BETWEEN

Constance Lake First
    Nation and Constance Lake Education Authority

Plaintiffs by Counterclaim (Appellants)

and

Penn-Co
    Construction Canada (2003) Ltd.
, Penn-Co Construction Canada Ltd.,
    Northern Indemnity, Inc., St. Paul Guarantee Insurance Company and Travelers
    Guarantee Company of Canada

Defendants by Counterclaim (Respondent)

and

AAA Electric 1988 Ltd.,
    676550 Ontario Inc. carrying on business as GT Plumbing & Heating, C.
    Villeneuve Construction Co. Ltd., Crane Steel Structures Ltd., C.D.P.
    Enterprises Ltd. and A P S Engineering

Third Parties

Francis J. Thatcher, Mary D. Bird and Graeme Mew, for
    the appellant

Colin R. MacArthur, Q.C. and James A. Mercury, for the
    respondent

Heard:  June 14, 2012

On appeal from the order of Justice Douglas C. Shaw of
    the Superior Court of Justice, dated October 11, 2011.

ENDORSEMENT

[1]

At issue in this appeal is whether the ordinary two-year limitation
    period for a breach of contract claim applies to the counterclaim issued by the
    appellants, Constance Lake First Nation and Constance Lake Education Authority
    ("Constance Lake"), on July 21, 2009. The motion judge held that it
    did, and granted an order of summary judgment dismissing the counterclaim as
    being statute-barred under the
Limitations Act
, 2002.

[2]

Constance Lake raises new two issues on this appeal which were not
    raised before the motion judge. Because of the result we have reached, we do
    not need to address the respondent's argument that it is unfair to deal with
    these issues for the first time on appeal.

[3]

The appellants first argument is that the counterclaim is not
    statute-barred, because Constance Lake has or at all material times had an
    extant arbitration with the respondent, Penn-Co Construction Canada (2003)
    Limited, which it says is either still going or was terminated by order of the
    Court in 2008. Either way, the appellant contends that s. 52 of the
Arbitration
    Act
, 1991, S.O. 1991, c. 17, suspends the limitation period sufficiently
    to render its counterclaim timely.

[4]

The necessary first step in this argument is that an arbitration must
    have been commenced. The appellant argues that this step was accomplished by
    letter from its counsel to the respondent's counsel dated January 16, 2006. The
    appellant contends that this letter complies with s. 23 (1) of the
Arbitration
    Act
, 1991, which provides as follows:

23. (1) An arbitration may be commenced in any way
    recognized by law, including the following:

1. A party to an arbitration agreement serves on the other
    parties notice to appoint or to participate in the appointment of an arbitrator
under the agreement
.

2. If the arbitration agreement gives a person who is not a
    party power to appoint an arbitrator, one party serves notice to exercise that
    power on the person and serves a copy of the notice on the other parties.

3. A party serves on the other parties and notice demanding
    arbitration
under the agreement
.  (Emphasis added)

[5]

An understanding and resolution of the first issue requires some
    context, and a brief recitation of the relevant facts. In June 2003, the
    parties entered into a standard-form contract for the construction of a school.
    The dispute resolution provisions of the building contract provided for a
    tri-level procedure for the resolution of any disputes: negotiation with the
    assistance of the Consultant; mediation; and arbitration. By the summer of
    2005, several deficiencies were noted regarding the respondent's work and
    efforts were undertaken to remediate these deficiencies.

[6]

These efforts did not succeed. In December 2005, Constance Lake issued a
    notice alleging that the respondent was in default under the contract, and that
    it had five days to correct the default or to provide a satisfactory schedule
    for the correction of the default. In the same month, the respondent's counsel
    served notice upon Constance Lake of its intent to proceed with mediation to resolve
    the parties' ongoing disputes under the contract.

[7]

In the letter of January 16, 2006, upon which the appellant relies,
    counsel for Constance Lake proposed an alternative approach of dispute
    resolution. The suggestion was that the parties dispense with the provisions
    under their own contract and proceed directly to arbitration pursuant to CCDC
    40 Rules for Arbitration of Construction Disputes, with no right of appeal of
    the arbitral decision, save and except as provided by sections 20.1 - 20. 5 of
    the Rules.

[8]

On January 20, 2006, counsel for the respondent wrote back to counsel
    for Constance Lake, proposing instead yet another and less formal approach,
    that of a neutral third-party "peer review." Counsel for the parties
    then engaged in several more exchanges, each expressing, in effect, a general
    willingness to consider a "peer review" process, but failing
    ultimately to agree upon the details of the process to be followed, including
    who would serve as the neutral third-party arbitrator. In the result, and
    despite the parties best efforts, the proposal of a neutral-party "peer
    review" dispute resolution process failed, and was abandoned by no later
    than mid-May 2006, as found by Pierce J when she decided the respondents 2007
    motion for mandatory arbitration.

[9]

Thus, by mid-May 2006, the parties had not only long since forsaken the
    three-step dispute resolution procedures under the contract, but they had also
    failed to agree upon any mutually acceptable alternative dispute resolution by
    peer review outside the contract. They had not followed the arbitration
    process in their contract, nor did they have a new arbitration agreement.

[10]

In
    these circumstances, we do not agree with the appellants submission that the
    parties had commenced an arbitration within the meaning of s. 23 of the
Arbitration
    Act
, 1991, by virtue of the letter of January 16, 2006, or indeed by
    virtue of any of the correspondence exchanged between the parties' counsel
    during the relevant period. The parties discussions never bore fruit, never
    advanced beyond mere proposals for an arbitration agreement. Absent a notice
    under an arbitration agreement, s. 23 of the
Arbitration Act
, 1991,
    has no application. Therefore, there can be no genuine issue for trial on
    whether a period of time might be excluded from the computation of the
    limitation period, as provided by s. 52(2) of the Act.

[11]

In
    our view, the Counterclaim is statute-barred, because it was not issued until
    July 2009, more than three years after the parties failed to commence an
    arbitration under the building contract or under any other agreement.

[12]

The
    second argument advanced by the appellant is that the respondent is estopped
    from pleading a limitations defence. Before the motion judge the appellant's
    position was that the respondent had waived its right to a limitations defence
    because it had agreed that Constance Lake could replace the statement of
    defence and counterclaim which Constance Lake had improperly served before the
    statement of defence and counterclaim was issued.

[13]

Now,
    before this court, the appellant relies upon the doctrine of estoppel to
    suggest that the respondent's 2007 motion for mandatory arbitration, the motion
    rejected by Pierce J. in reasons released on September 20, 2007, and the
    ensuing appeal from her decision, created a procedurally confusing situation
    "which can be viewed as having caused or contributed to the timing of the
    commencement of the [appellant's] Counterclaim."

[14]

We
    disagree. None of the essential factual elements required to make out a case of
    estoppel is present in this case. There is no evidence, for example, that the
    respondent made any promise or assurance that it would not rely upon the
    limitations defence. There is also no evidence that Constance Lake relied upon
    any alleged representation, or that it ever acted on any such representation.
    It follows that estoppel raises no genuine issue requiring a trial.

[15]

For
    these reasons, therefore, we find no basis for interfering with the findings of
    the motion judge, and we dismiss the appeal accordingly.

[16]

The
    parties have agreed on the quantum of costs payable to the successful party.
    The appellant shall pay to the respondent costs fixed in the sum of $15,000,
    including disbursements and all applicable taxes.

S.T. Goudge J.A.

R.G.
    Juriansz J.A.

Ducharme
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Picavet v. Clute, 2012
    ONCA 441

DATE: 20120621

DOCKET: M41440 (C55469)

Feldman J.A. (Chambers)

BETWEEN

Michael John Picavet

Appellant (Plaintiff)

and

Elizabeth
    Pearl Marie Clute
,
Nicole Marie Stella
and

Lormel Developments
    (Bradford) Ltd.

Respondents (Defendants)

Patrick Summers, for the appellant

Duncan Boswell, for the respondents

Heard: June 20, 2012

On appeal from the judgment of Justice Susan E. Healey of
    the Superior court of Justice, dated April 11, 2012.

ENDORSEMENT

[1]

The appellant has appealed the judgment of the trial judge that
    dismissed his action against his mother, the respondent Clute. He claimed that
    they made a contract wherein she agreed to give him a significant portion of her
    land. When that land was sold, she took back a vendor take back mortgage. The
    VTB was later paid in full and on consent, the proceeds were held in trust by
    the respondents solicitors pending the outcome of the trial. As part of the
    order dismissing the action, the trial judge also ordered that after 30 days, the
    VTB funds could be paid out of trust to the respondent.

[2]

On this motion the appellant asks in the alternative for: (1) in effect
    a declaration that Rule 63.01 automatically stays the order of the trial judge
    for the payment out of trust of the VTB funds; or (2) in the alternative, if
    that rule does not apply, then for an order under Rule 63.02 for a stay of that
    part of the order pending appeal.

Automatic Stay  Rule 63.01

[3]

Rule 63.01 provides an automatic stay upon appeal of any provision of
    the order for the payment of money. There was no order for the payment of
    money made by the trial judge in this case  the action was dismissed. An order
    for the payment out of a fund that is being held pending the outcome of the
    action is not an order referred to in the Rule unless that fund is a judgment
    debt created by the order of the trial judge.

[4]

This point was addressed by Rosenberg J.A. in
1013799 Ontario v. Kent
    Line International Ltd.
, [2002] O.J. No. 4214 (C.A.) In that case, the
    plaintiffs action against the defendant was successful. When the defendant
    appealed, it sought a stay of the order for payment out to the plaintiff of
    the money that had been paid in by the plaintiff for security for costs of the
    trial. The motion for a stay on appeal was dismissed. The plaintiff had won the
    trial. There was no longer any need for the winning party, now the respondent
    on the appeal, to post security for costs. The order for payment out was a housekeeping
    matter.

[5]

The same analysis applies to the order for payment out in this case.
    By dismissing the action, the trial judge confirmed that the money held in
    trust belonged to the respondent and was not payable to the plaintiff.  The
    order for payment out merely facilitated that finding.

Should the Court Order a Stay?

[6]

In the alternative, the appellant asks this court to order a stay, pending
    the outcome of the appeal, of the order to pay out to the respondent the vendor
    take back mortgage funds being held by the respondents solicitors.

[7]

The court applies the three part test also applicable to an interlocutory
    injunction:

(a) serious issue on the
    appeal;

(b) will there be
    irreparable harm if the stay is not granted; and

(c) the balance of
    convenience.

[8]

I am not satisfied that the appellant has met its onus to show that any
    of the three criteria have been met:

(a) The appellant submits
    that the trial judge was focused on the wrong time period for when the contract
    was formed and that she did not appreciate the effect of the 467 spread sheet. The
    trial judges reasons are lengthy and thorough. She made detailed findings of
    fact and mixed fact and law, holding that there was no intent to contract, no agreed
    upon terms of a contract, and that instead, the respondent had agreed to give the
    appellant a gift, which is an unenforceable promise. Based on this record, it
    would be difficult to show on appeal that the trial judge made a reversible
    error.

(b) There is also no
    indication of irreparable harm to the appellant. There is no basis to conclude
    that the respondent is going to move the funds off-shore and, in any event, she
    appears to be a wealthy woman, able to satisfy a judgment.

(c) Finally, regarding the
    balance of convenience, the respondent argues that although she does not need
    the money, it is hers and she is entitled to it at this point. I agree.

Conclusion

[9]

For these reasons, the motion is dismissed with costs to the respondent
    fixed at $7,500, inclusive of disbursements and H.S.T.

K. Feldman J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Pouget v. Saint
    Elizabeth Health Care, 2012 ONCA 461

DATE: 20120629

DOCKET: C53714

Feldman, MacPherson and Sharpe JJ.A.

BETWEEN

Julie Pouget

Appellant

and

Saint Elizabeth Health Care and Judy Davidson

Respondents

Paul J. Pape, for the appellant

Christopher M. Andree, for the respondents

Heard: March 5, 2012

On appeal from the judgment of
    Justice Terrence L.J. Patterson of the Superior Court of Justice, dated April
    13, 2011, with reasons reported at 2011 ONSC 1013.

Feldman
    J.A.:

Introduction

[1]

The appellant, Julie Pouget, was fired from her job as a nurse by the
    respondent, Saint Elizabeth Health Care (SEHC) in March 2003. Days later,
    SEHC reported the termination to the Ontario College of Nurses (the College),
    as it was obliged to do under the
Regulated Health Professions Act, 1991
,
    S.O. 1991, c. 18 (the Act).  Although a discipline proceeding was instituted
    by the College, ultimately no evidence was offered. In November 2008, more than
    five and a half years after the College received the complaint about Pouget,
    all of the charges against her were dismissed.

[2]

In 2009, Pouget issued a statement of claim against SEHC and her former
    manager, the respondent Judy Davidson. The action was principally styled as one
    for wrongful dismissal but Pouget also pleaded several claims alleging bad
    faith, including: malicious prosecution; negligent investigation; breach of
    fiduciary duty; and intentional infliction of mental distress. This second
    category of claims arose directly from SEHCs report to the College and the
    damages Pouget claims to have suffered in the resulting investigation and
    discipline proceedings.

[3]

The respondents moved before pleading to strike all of Pougets claims
    except the claim for wrongful dismissal. They argued that none of the bad
    faith claims could be advanced because all the information needed to prove
    them was privileged and inadmissible under s. 36(3) of the Act.   That section
    prohibits any report, document or thing prepared for or statement given in a
    discipline proceeding from being used in a civil proceeding. The motion judge
    agreed with the respondents and struck all of the claims except the claim for
    wrongful dismissal. He also dismissed the action in its entirety against the
    respondent Davidson.

Facts

[4]

As this appeal arises from a pleadings motion, the facts are taken from
    the statement of claim and the motion judges reasons.

[5]

Pouget became a registered nurse in 1997 and was hired by SEHC in 1998
    to provide home-based nursing care. In January 2003, Pouget was selected to
    become a member of SEHCs Web of Wisdom team for nurses with special
    expertise in wound care. This required additional training and travel on top of
    Pougets regular caseload.

[6]

On February 18, 2003, a client called SEHC to report that Pouget missed
    a scheduled visit the previous day. When SEHC followed up, the client also
    reported that Pouget had smelled strongly of alcohol on a previous visit.
    Another client apparently reported a missed visit on February 19, 2003. On
    Friday, February 21, Pougets father called her manager, Davidson, to advise
    that Pouget had suffered an emotional breakdown and to ask for a meeting to
    discuss the situation. In the course of arranging for Pougets clients to be
    seen by other nurses, Davidson determined that an investigation was required
    involving contacting all of Pougets clients.

[7]

Davidson met with Pouget and her father on Monday, February 24. Pouget
    confirmed that she was having mental health issues but denied any professional
    misconduct. She was put on paid then unpaid leave. Pouget was referred to a
    psychologist as part of SEHCs employee assistance program and was scheduled to
    either return to work or provide a status report on March 14. In her statement
    of claim, Pouget maintains that she did not know she was required to provide a
    doctors note clearing her to resume working at this time, but that she
    obtained such a note on March 19 and promptly informed Davidson.

[8]

On March 25, 2003, Pouget received a letter from Davidson advising her
    that she was terminated due to frustration of contract. Following the
    termination, Davidson continued her investigation.

[9]

On April 9, 2003, Davidson submitted a report to the College pursuant to
    s. 85.5(1) of the
Health Professions Procedural Code
, Schedule 2 to the Act
(the Code),
    which requires employers of regulated health professionals to inform the
    Registrar when an employee is terminated due to professional misconduct,
    incompetence or incapacity. That section further provides that notice of the
    dismissal to the Registrar must be in a written report setting out the
    reasons for termination.

[10]

After
    meeting with College investigators, Davidson prepared a multi-count complaint
    against Pouget involving approximately 15 clients and alleging missed visits,
    billing irregularities, improper befriending of clients, alcohol dependency and
    improper financial dealings with clients. The College eventually withdrew some
    of the charges in June 2006 and the rest on the eve of the hearing in November
    2008. Four months later, Pouget brought her claim against SEHC and Davidson.

The Motion to Strike

[11]

SEHC
    and Davidson moved to strike all of Pougets claims except the one for wrongful
    dismissal. The motion judge granted the motion and dismissed the claim against
    Davidson in its entirety. He also dismissed Pougets motion to add certain
    parties (all SEHC employees) because the applicable limitation period had
    expired.

[12]

The
    motion judge based his analysis and conclusion on s. 36(3) of the Act, which
    provides:

No record of a proceeding under this Act, a health profession
    Act or the
Drug and Pharmacies Regulation Act
, no report, document or thing
    prepared for or statement given at such a proceeding and no order or decision
    made in such a proceeding is admissible in a civil proceeding other than a
    proceeding under this Act, a health profession Act or the
Drug and
    Pharmacies Regulation Act
or a proceeding relating to an order under
    section 11.1 or 11.2 of the
Ontario Drug Benefit Act.

[13]

The
    motion judge reasoned that because this provision prevented Pouget from proving
    any allegations involving the report to the College and the resulting fallout,
    those allegations must be struck out at the pleading stage. This encompassed
    all her bad faith claims against SEHC.

[14]

He
    also accepted the respondents position that the Code, which is a schedule
    under the Act, provides a complete code to Pougets claims except for wrongful
    dismissal. In particular, he noted that SEHC was mandated under s. 85.5(1)
    of the Code to report Pougets termination, and s. 85.6 of the Code provides
    immunity for reports made in good faith: No action or other proceeding shall
    be instituted against a person for filing a report in good faith under section
    85.1, 85.2 or 85.5. The motion judge observed that under s. 26(4) of the Code,
    a panel can choose not to proceed with a complaint if it is found to be
    frivolous, vexatious or made in bad faith or otherwise an abuse of process.
    Section 53 of the Code authorizes the panel to order the College to pay all or
    part of a members legal costs if it is of the opinion that the commencement of
    proceedings was unwarranted.

[15]

The
    motion judge explained, at paras. 41-42:

The allegation before the court is that SEHC did an incomplete
    investigation in preparing the report to the [College] and that they withheld
    information that was contained in their business records that would have
    exonerated Pouget.

This begs the question as to who has the responsibility for
    investigating any allegations. It appears to me that the provisions of the
    legislation clearly provide the investigatory role and the decision to proceed
    or not with the disciplinary procedures to be entirely in the hands of the
    [College].

[16]

The
    motion judge concluded that only the wrongful dismissal action was properly before
    the court.

[17]

Notably,
    he further held, at para. 44, that all business records, save and except as
    they pertain to the wrongful dismissal action, are not evidence that may be
    admitted pursuant to s. 36(3) of the Code.

The Appeal

[18]

Pouget
    appeals, seeking leave to amend her pleadings and asking this court to
    reinstate the action against Davidson. In oral argument, counsel advised that
    Pouget wished to abandon her appeal seeking to add parties as defendants.

[19]

On
    appeal, the parties agree on a few basic premises. First, Pouget should be
    allowed to proceed with her wrongful dismissal claim. Second, SEHCs written
    report to the College, submitted on April 9, 2003 pursuant to s. 85.5(1) of the
    Code, is inadmissible and cannot form part of Pougets claim. Third, s. 85.6 of
    the Code immunizes a person from being sued for filing a report in good faith
    under s. 85.5. Counsel did not agree on how to reconcile this provision with
    the documentary immunity from production accorded under s. 36(3).

[20]

The
    main point of contention between the parties boils down to whether or not
    Pouget can rely on documents, principally business records, that were created
    before SEHC made its report to the College, but that were subsequently referred
    to in the report or provided as part of the complaint.

[21]

Counsel
    for Pouget submits that any documents generated before Pougets dismissal on
    March 25, 2003  including activity logs and billing records she says will
    exonerate her of any wrongdoing  are not covered by s. 36(3) because they
    existed independently of any report to the College and were clearly not
    prepared for that purpose. He acknowledges that documents created between
    Pougets termination on March 25 and SEHCs report to the College on April 10
    would be inadmissible if they were created for the purpose of the report. He
    submits that the characterization of these documents is a question of fact that
    should be left to the trial judge. As noted above, counsel for Pouget accepts
    that the report itself and any information gathered in the resulting
    investigation are inadmissible under s. 36(3).

[22]

Counsel
    for SEHC submits that any document referred to in the report or appended to the
    report, as well as any information that touches on the substance of the report,
    is privileged under s. 36(3). This includes information generated before the
    report was contemplated if SEHC ultimately relied on that information in its
    report. In oral argument, counsel for SEHC took the position that documents
    created prior to dismissal would be admissible in a regular wrongful dismissal
    claim, but that those same documents would be inadmissible if the termination
    was accompanied by a report to the College.

Analysis

(a)     The Case Law

[23]

The
    interpretation and application of s. 36(3) has been discussed in three recent
    decisions of this court:
M.F. v. Sutherland
(2000), 188 D.L.R. (4th)
    296;
Task Specific Rehabilitation Inc. v. Steinecke
(2004), 244 D.L.R.
    (4th) 414; and
Ontario v. Lipsitz
, 2011 ONCA 466, 281 O.A.C. 67. Immunity
    provisions similar to s. 85.6 of the Code were discussed in these cases and in
    the Supreme Court of Canadas decision in
Finney v. Barreau du Quebec
,
    2004 SCC 36, [2004] S.C.R. 17. I will consider each in turn.

[24]

In
Sutherland
, Laskin J.A. writing for the majority explained, at para.
    36, that the purpose of s. 36(3) is to prevent not just patients but all participants
    in College proceedings from using documents generated for those proceedings in
    civil proceedings, in short to keep the two proceedings separate.  He held, at
    para. 40, that where a pleading pleads facts that cannot be proved at trial
    because it relies on documents that are inadmissible under s. 36(3), the
    pleading must be struck out under rule 25.11. He also held that s. 38 of the
    Act, which immunizes College administrators from liability for acts done in
    good faith does not connote a bad faith exception to the application of  s.
    36(3). In other words, s. 36(3) contains no exception for investigations done
    fraudulently or in bad faith.

[25]

However,
    Laskin J.A. went on to observe, at para. 45, that since s. 36(3) refers only to
    a report, document or thing, it does not prevent a party from pleading and
    proving the fact that a complaint was made in the first place.

[26]

In
Task
,

an occupational therapy clinic sued a prosecutor from the
    College of Occupational Therapists of Ontario after the prosecutor successfully
    negotiated a plea deal with one of the clinics former employees. As part of
    that deal, the employee sent letters to all her former clients containing
    information that reflected poorly on the clinic. The clinic alleged it lost
    more than 50% of its business as a result.

[27]

In
    bringing its action against the prosecutor, the clinic tried to reprise the
    argument made in
Sutherland
, namely, that s. 36(3) of the Act contains
    an implied exception where the prosecution by the College was done in bad faith.
    The plaintiff in
Task

argued that the majority in
Sutherland
had not appreciated that because s. 38 of the Act allows administrators of the
    Act to be held accountable for actions taken in bad faith, s. 36(3) must be
    interpreted to allow such an action to be proved using the documents prepared
    for the proceedings. The court in
Task
rejected that argument, holding
    that the issue had been clearly raised and decided in
Sutherland.

[28]

The
    court also referred to the Supreme Courts decision in
Finney
, which was
    released after the oral argument in
Task. Finney
involved an immunity provision
    in a Quebec statute for those involved in the discipline process for Quebec
    lawyers, which like s. 38 of the Act, grants immunity to regulatory
    investigators and prosecutors for acts done in good faith. The case discussed
    the scope of the concept of bad faith in the context of the section. As the
    case did not involve issues of proof or a section comparable to s. 36(3), the
    Court of Appeal in
Task
did not find
Finney
of assistance.

[29]

However,
    for the purpose of this case and the interpretation of s. 85.6 of the Code,
Finney
makes it clear that the good faith limitation on immunity is to be given effect
    by the courts. It follows, therefore, that where a claim asserts bad faith,
as
    long as it can be proved without running afoul of
s. 36(3)
, such a
    claim is not to be struck out at the pleading stage.

[30]

The
    third and most recent case of this court to discuss the scope and effect of s.
    36(3) of the Act is
Lipsitz
.
In that case, Lipsitz sued both
    Crown employees and employees of the College of Physicians and Surgeons for
    their role in inspecting and assessing his sleep disorder clinics under s.
    75(a) of the Code. In response, the College argued that s. 36(3) made the claim
    regarding its investigation of Lipsitz unprovable at trial. The motion judge
    agreed and struck out that portion of Lipsitzs claim.

[31]

In
    dismissing Lipsitzs appeal on this point, this court again referred to the
Sutherland
decision for two propositions. First, a plea of facts that cannot be proved at
    trial should be struck out under rule 25.11 of the
Rules of Civil Procedure
.
    Second, although the documents referred to in s. 36(3) are inadmissible in a
    civil proceeding, the fact of a complaint or of the commencement of an
    investigative proceeding may be proved at trial.

[32]

The
Lipsitz
case also briefly considered another immunity provision with a
    good faith exception, in that case, s. 38(1) of the
Independent Health
    Facilities Act
, R.S.O. 1990, c. I. 3. That section grants immunity to
    administrators under that statute for acts or omissions in the performance or
    exercise in good faith of any duty, function, power or authority under the
    Act. The court in
Lipsitz

acknowledged, at para. 61, that the
    immunity provided by this section is limited: Thus, acts or omissions are only
    protected under s. 38(1) if the person or entity acted in good faith.

(b)     Application of the case law to
    this case

[33]

Applying
    these principles to this case, Pouget is not precluded from asserting claims against
    SEHC based on bad faith, which has been pleaded, as long as those claims can be
    proved without using any document referred to in s. 36(3). The fact of a
    complaint and of an investigation can be proved at trial.

[34]

The
    case law reviewed above, including
Sutherland
, does not support the
    respondents position that documents created in the normal course of business
    automatically become inadmissible under s. 36(3) if those documents are later
    referenced in, or appended to, a report to the College.  Such an interpretation
    of s. 36(3) is not supported by the clear language of the provision, which
    speaks of a report, document or thing
prepared for
or a statement
given
    at
a proceeding.  It would also yield the absurd result that while Pouget
    has a claim for wrongful dismissal, she would have no meaningful way to prove
    that claim if documents such as her appointment schedule and billing records
    for February 2003 became immune from production because they later formed part
    of the narrative of SEHCs report to the College.

[35]

The
    exclusion from evidence of the complaint will clearly pose a practical problem
    for Pougets bad faith claim. She will have to prove bad faith without being
    able to refer to the contents of the complaint itself except to the extent that
    the substance of the complaint can be inferred from the background documents.
    That, however, is a practical problem of proof and not a legal barrier that
    would justify dismissing the action at the pleading stage.

Remedy

[36]

In
    my view, the appropriate remedy on this appeal, as requested by the appellants
    counsel, is for the appellant to be granted leave to amend her claim in
    accordance with these reasons. Since she abandoned the portion of her appeal
    dealing with the addition of parties, I would dismiss that portion of the
    appeal.

[37]

The
    motion judge granted summary judgment dismissing the action against Davidson on
    the ground that her involvement in preparing the report and related
    involvement with the [College] is inadmissible (para. 55). As I have
    explained, the motion judge erred in ruling that documents predating SEHCs report
    to the College are protected under s. 36(3). These documents may relate not
    only to the wrongful dismissal claim, but also to the bad faith claims against
    Davidson. I would allow the appeal on this issue and reinstate the action
    against Davidson.

Conclusion

[38]

I
    would allow the appeal to the extent that the appellant is granted leave to
    amend her claim in compliance with the principles set out in these reasons. I
    would also allow her claim against Davidson to be reinstated, again in
    compliance with the principles I have set out above. I would dismiss the
    portion of the appeal seeking the addition of parties. As the appellant
    achieved partial success on the appeal, I would award partial costs of the
    appeal to the appellant fixed at $15,000 inclusive of disbursements and H.S.T.

Signed:           K. Feldman J.A.

I agree J. C.
    MacPherson J.A.

I agree Robert J.
    Sharpe J.A.

RELEASED:  KF JUNE 29, 2012


WARNING

The President
    of the panel hearing this appeal directs that the following should be attached
    to the file:

An order
    restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4)
    or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of the
Criminal Code
provide:

486.4     (1)
Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the complainant or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of
    the following offences;

(i)   an
    offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170,
    171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02,
    279.03, 346 or 347,

(ii)  an
    offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent
    assault on female), 156 (indecent assault on male) or 245 (common assault) or
    subsection 246(1) (assault with intent) of the
Criminal Code
, chapter
    C-34 of the Revised Statutes of Canada, 1970, as it read immediately before
    January 4, 1983, or

(iii) an
    offence under subsection 146(1) (sexual intercourse with a female under 14) or
    (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction
    of a female between 16 and 18), 153 (sexual intercourse with step-daughter),
    155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian
    procuring defilement) or 167 (householder permitting defilement) of the
Criminal
    Code
, chapter C-34 of the Revised Statutes of Canada, 1970, as it read
    immediately before January 1, 1988; or

(b)     two
    or more offences being dealt with in the same proceeding, at least one of which
    is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2)
In proceedings in respect of
    the offences referred to in paragraph (1)(a) or (b), the presiding judge or
    justice shall

(a)  at the first reasonable opportunity, inform any
    witness under the age of eighteen years and the complainant of the right to
    make an application for the order; and

(b)  on application made by the complainant, the prosecutor
    or any such witness, make the order.

(3)
In proceedings in respect of
    an offence under section 163.1, a judge or justice shall make an order
    directing that any information that could identify a witness who is under the
    age of eighteen years, or any person who is the subject of a representation,
    written material or a recording that constitutes child pornography within the
    meaning of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)
An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice when it is not the purpose of the
    disclosure to make the information known in the community. 2005, c. 32, s. 15;
    2005, c. 43, s. 8(3)(b).

486.6     (1)
Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)
For greater certainty, an
    order referred to in subsection (1) applies to prohibit, in relation to
    proceedings taken against any person who fails to comply with the order, the
    publication in any document or the broadcasting or transmission in any way of
    information that could identify a victim, witness or justice system participant
    whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION:

R. v. Anderson, 2012
    ONCA 373

DATE: 20120605

DOCKET: C53603

Weiler, Simmons and Cronk JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Anderson

Appellant

Richard Litkowski, for the appellant

Amy Alyea, for the respondent

Heard: April 17, 2012

On appeal from the sentence imposed on April 9, 2010 by
    Justice Todd Ducharme of the Superior Court of Justice, sitting without a jury.

By the Court:

I.        Background

[1]

After a judge alone trial, the appellant was convicted of breaking and
    entering, aggravated sexual assault, attempt murder, unlawful confinement and
    threatening death.
[1]
He was sentenced to life imprisonment on the first three counts and five years
    imprisonment on the last two counts, to be served concurrently.

[2]

The appellant appeals against sentence.

[3]

In his factum, the appellant argued that the sentencing judge erred in
    imposing a life sentence after the Crown withdrew its dangerous offender
    application.  The appellant maintained that the sentencing judges assessment
    of his future dangerousness and of the associated need for protection of the
    public formed the primary basis for the imposition of a life sentence and that,
    absent a dangerous offender application, it was not open to the sentencing
    judge to sentence the appellant to life imprisonment on this basis.

[4]

However, during oral argument, the appellants counsel clarified that he
    does not challenge the potential availability of life imprisonment as an
    appropriate sentence for the crimes at issue in this case, even where, as here,
    no dangerous or long-term offender designation was sought by the Crown.
    Rather, he contends that, given the circumstances of these offences and this
    offender, a sentence of life imprisonment is unjustified and unfit.

II.       Discussion

[5]

In our view, the sentencing judge made no error in principle in his
    sentencing analysis and the sentence imposed is fit.  We say this for the
    following reasons.

[6]

We begin with the circumstances of these offences.  Simply put, they were
    horrific.

[7]

The complainant, a 76 year-old woman, was asleep alone in her apartment
    when the appellant, then 26 years of age, broke into her residence in the
    middle of the night.  The complainant awoke to find the appellant standing in
    her apartment.  He was armed with a knife and threatened the complainant that
    if she screamed and did not comply with his demand for sex, he would kill her.
    When the complainant tried to telephone for help, the appellant cut the phone cord,
    struck the complainants hand with the knife, forced the complainant onto her
    bed, groped her, digitally penetrated her vagina, forced her to engage in vaginal
    intercourse, and then attempted to vaginally penetrate her from behind.  While
    all this was occurring, the appellant stabbed the complainant three times in
    the abdomen, slashed her face (cutting all the way to the jaw bone), and
    brutally beat her.  One of the inflicted wounds was potentially fatal.  In
    addition, the complainant lost approximately one-eighth of her total blood
    supply and sustained multiple cuts to her face and hands during the appellants
    attack, which later required surgical repair.

[8]

The appellant persisted in his attack notwithstanding the complainants
    repeated pleas that he stop and the fact that she was bleeding profusely.  The
    attack lasted in excess of one hour.  The appellant left only when the
    complainant managed to escape to her apartment balcony, where she called out
    for help.  This prompted the appellant to flee from the apartment, leaving his
    clothes behind.  When the complainant re-entered her apartment and called 911,
    the appellant returned, gathered up his clothing and eventually fled the
    apartment again.

[9]

The sentencing judge reviewed the circumstances of the offences in
    detail, including the understandably traumatic effects on the victim and
    members of her family.  He concluded that, The sexual nature of the attack was
    quite degrading and constituted an extreme violation of [the complainants]
    privacy, security and dignity.  The attack involved gratuitous and excessive
    violence well beyond anything necessary to [obtain the complainants]
    compliance.  We agree with this description of the nature and gravity of the
    offences.

[10]

The
    sentencing judge was cognizant of the Crowns withdrawal of its dangerous
    offender application, necessitated by the appellants refusal to participate in
    a psychiatric assessment.  The sentencing judge expressly stated, I certainly
    will not impose a life sentence because this dangerous offender application was
    abandoned.

[11]

The
    sentencing judge heard almost a full day of submissions by counsel on the issue
    whether a life sentence or a lengthy determinate sentence was appropriate.  His
    comprehensive reasons reveal a careful and thorough consideration of all the
    aggravating and mitigating factors relevant to the fashioning of a proper
    sentence in this case and reflect no error in principle.

[12]

We
    note, in particular, that the sentencing judge had regard to the appellants
    circumstances and antecedents and factored them into his sentencing calculus.
    He noted the appellants age; that the appellant was a first (although not a
    youthful) offender; that his past conduct suggested that he has the capacity to
    act responsibly; that he enjoys a supportive family and had not been in
    trouble while incarcerated; and that there was no evidence that he had ever
    engaged in such a violent crime in the past.

[13]

However,
    the sentencing judge also held that the appellants family members are
    woefully deficient historians who were unable to reliably portray the
    appellants true character; the appellants attack was a random crime of
    opportunity; the victim of the attack was a vulnerable old lady; and the
    appellants crime demonstrated a callous lack of empathy.  These were all
    relevant and proper sentencing considerations.

[14]

After
    identifying the applicable aggravating and mitigating circumstances, the
    sentencing judge undertook a lengthy review of the governing sentencing
    principles, set out in the
Criminal Code
.  He also addressed, in some
    detail, the approach to be taken in sentencing first offenders (including for
    very serious, violent offences) and the principles relevant to the imposition
    of a life sentence.

[15]

In
    connection with the latter principles, the sentencing judge explicitly
    addressed the defence submission that a life sentence should not be imposed in
    the absence of supporting psychiatric evidence of both continuing dangerousness
    and the limited likelihood for successful treatment.  He also took account of
    the defence contentions that the imposition of a life sentence would be to
    overreach and that protection of the public should not trump all other
    sentencing objectives.

[16]

In
    this case, as we have mentioned, the appellant declined to participate in a
    forensic psychiatric assessment, thereby depriving the sentencing judge of
    insight into his personality or how it is that he could have committed this
    terrible crime, and precipitating the Crowns withdrawal of its dangerous
    offender application.

[17]

The
    appellant was entitled to make this choice.  However, it does not follow that,
    by virtue of that fact, the sentencing judge was precluded from giving any
    weight to the appellants future dangerousness.  On the contrary, the
    sentencing judge was entitled  indeed obliged  to consider the full
    circumstances of these offences and this offender in determining whether the
    gravity of the appellants offences and his moral blameworthiness justified the
    maximum sentence of life imprisonment.  This included the available indicators
    of the appellants future dangerousness and the random and gratuitous nature of
    his attack on the complainant.

[18]

After
    reviewing the relevant authorities, including
R. v. L.M.
, 2008 SCC 31,
    [2008] 2 S.C.R. 163;
R. v. Cheddesingh
, 2004 SCC 16, [2004] 1 S.C.R.
    433;
R. v. Klair
(2004), 71 O.R. (3d) 336 (C.A.);
R. v. Horvath
(1982), 2 C.C.C. (3d) 196 (Ont. C.A.); and
R. v. Knoblauch
, 2000 SCC
    58, [2000] 2 S.C.R. 780, and considering the governing sentencing principles
    and submissions of counsel, the sentencing judge concluded:

In a case such as this, I must fashion a sentence that has as
    its paramount goals denunciation [s. 718(a)], general deterrence [s. 718(b)]
    and the need to separate the offender from society [s. 718(c)].

....

After anxious consideration, and taking into account the
    circumstances of both the offence and the offender, I have concluded that ...
    the facts of this case are so bizarre and shocking that I can infer from the
    circumstances of the offence itself that [the appellant] poses an ongoing
    danger to the public.

...

Thus, I am of the firm view that the appropriate sentence for
    [the appellant] is imprisonment for life.  This result is required by the need
    to separate [the appellant] from society for the protection of the latter [s.
    718(c)] as well as the principle of proportionality set out in s. 718.1 of the
Code
both with respect to the gravity of the offence and the degree of responsibility
    of the offender.

[19]

We
    see no error in the sentencing judges sentencing analysis.  As
R. v. L.M.
holds, at para. 21: [t]here is still place in criminal law for maximum
    sentences in appropriate circumstances.  In this case, the appellant was
    convicted of two offences, which each carry a maximum sentence of life
    imprisonment (aggravated sexual assault and attempt murder).  The circumstances
    of his crimes, described above, were especially egregious and aggravating.  The
    sentencing judge thoughtfully considered all the relevant sentencing principles,
    including the appellants dangerousness and the need to protect the public.
    For the reasons expressed by him, a life sentence in this case is a fit
    sentence.

III.      Disposition

[20]

Leave
    to appeal sentence is granted and the appeal against sentence is dismissed.

Released:

JUN -5 2012                                    Karen M.
    Weiler J.A.

EAC                                                Janet
    Simmons J.A.

E.A. Cronk J.A.

[1]
Charges of sexual assault with a weapon and possession of a weapon were stayed
    in accordance with the principle in
R. v. Kienapple
, [1975] 1 S.C.R.
    729.