COURT OF APPEAL FOR ONTARIO

CITATION: Robson v. The Law Society of Upper Canada, 2017
    ONCA 468

DATE: 20170607

DOCKET:
C62812

Lauwers, Hourigan and Benotto JJ.A.

BETWEEN

Paul Alexander Robson

Plaintiff (Appellant)

and

The Law Society of Upper Canada, Zeynep Onen,
    Mark Pujolas, Lisa Freeman and Jan Parnega-Welch

Defendants (Respondents)

Richard Watson, for the appellant

Sean Dewart and Ian McKellar, for the respondents

Heard: May 18, 2017

On appeal from the judgment of Justice
Stephen
    E. Firestone
of the Superior Court of Justice, dated
September
    14, 2016, with reasons reported at 2016 ONSC 5579
.

REASONS FOR DECISION

[1]

The Law Society of Upper Canada brought disciplinary
    proceedings against the appellant in 2007 that finally resolved in his favor in
    October 2014. The appellant then brought this action claiming damages from the Law
    Society for negligent investigation, malicious prosecution, and mischief in
    public office.

[2]

The appeal concerns the motion judges decision
    to strike the claim for negligent investigation as disclosing no reasonable
    cause of action under rule 21.01(1)(b) of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194
. The other claims will
    proceed in any event.

[3]

The motion judge based his decision on s. 9 of
    the
Law Society Act
, R.S.O. 1990, c. L.8,
which provides:

No action or other proceedings for damages shall be instituted
    against the Treasurer or any bencher, official of the Society or person
    appointed in Convocation for any act done in good faith in the performance or
    intended performance of any duty or in the exercise or in the intended exercise
    of any power under this Act, a regulation, a by-law or a rule of practice and
    procedure, or for any neglect or default in the performance or exercise in good
    faith of any such duty or power.

[4]

The appellant argues that the plain terms of s. 9
    expressly protect only Law Society employees and officials from negligence
    claims, but not the Law Society itself.
Two impediments relating to
stare
    decisis
confront the appellant.

[5]

One impediment is this courts decision in
Conway

v.
    The Law Society of Upper Canada
, 2016 ONCA 72, 395 D.L.R
    (4th) 100
. The court referred to s. 9 of the
Law Society Act
as
    the statutory immunity at para. 21, and added at para. 22
:

Mere negligence in the good faith performance of the LSUC's
    duties or functions is not enough to establish liability. However, an absence
    of good faith or "bad faith", involving malice or intent, is
    sufficient to ground a properly pleaded cause of action against the LSUC.

[6]

This court in
Conway
and the motion judge cited this courts decision in
Edwards
    v. Law Society of Upper Canada
(2000), 48 O.R. (3d) 329
    (C.A.), affd 2001 SCC 80, [2001] 3 S.C.R. 562, where Finlayson J.A. said at
    paras. 26, 30 and 40:

It is also important to note that immunity to civil suit is
    codified in s. 9 of the
Law Society Act
. While it applies only to
    actions against officials of the Society and not the Law Society itself, the
    Legislature is presumed to know the law and must be taken to have recognized
    that the society itself has been traditionally immunized from civil actions by
    the common law.

...

This jurisprudence clearly establishes a judicial immunity from
    negligence for the Law Society's discipline process, including the
    investigative function at the front end. The Law Society's disciplinary powers
    must respond to its statutory mandate and the requirements of due process, not
    to a private law duty of care.

...

[I]t seems to me that there are very sound policy reasons for
    not burdening this judicial or
quasi
-judicial process with a private
    law duty of care. The public is well-served by refusing to fetter the
    investigative powers of the Law Society with the fear of civil liability. The
    invocation by the plaintiffs of the "public interest" role of the Law
    Society seems to be misconceived as it actually works to undermine their
    argument.... [T]he Law Society cannot meet this obligation if it is required to
    act according to a private law duty of care to specific individuals such as the
    appellants. The private law duty of care cannot stand alongside the Law
    Society's statutory mandate and hence cannot be given effect to.

[7]

The second impediment is that the Supreme Court of
    Canada in
Edwards
noted its substantial agreement
    with Finlayson J.A, at para. 11, and went on to specifically note, at para. 16:
perhaps most indicative of the Legislature's intent, the Act provides
    statutory immunity in s. 9 of the
Act
. The court added, at para. 17,
    that s. 9 of the
Law Society Act
precludes any inference of an
    intention to provide compensation in circumstances that fall outside the
    lawyers' professional indemnity insurance and the lawyers' fund for client
    compensation.

[8]

The appellant submits the motion judge failed
    to consider his argument that
Edwards
was
    superseded by the decision of the Supreme Court of Canada in
Hill v.
    Hamilton-Wentworth Police Services Board
, 2007
SCC 41,
    [2007] 3 S.C.R. 129.
Hill
is based on
    developments in the law of negligence initiated by the Supreme Court in
Cooper
    v. Hobart
, 2001 SCC 79, [2001] 3 S.C.R 537. We observe that
Edwards
was a companion case to
Cooper
at the Supreme Court.

[9]

In
Hill
, the Supreme
    Court of Canada held that the
tort of negligent investigation exists in
    Canada. No statutory immunity was at issue in that case. There is no suggestion
    in
Hill
that the cause of action established in that case operates to
    extinguish statutory immunity. Nor is there any suggestion by the Supreme Court
    in
Hill
that
Edwards
was no longer good law.

[10]

It is certainly arguable that the general law of negligence has moved on
    considerably since the days of
Edwards
, in light of the further
    development of the law under the principles of
Cooper
. Perhaps
    Canadian appellate courts have authority under the rubric of
Canada
    (Attorney General) v. Bedford
,  2013 SCC 72, [2013] 3 S.C.R. 1101, and
Carter v. Canada (Attorney General)
, 2015
    SCC 5, [2015] 1 S.C.R. 331 to revisit binding Supreme Court of Canada
    decisions, particularly where that court has itself appeared to move on.

[11]

However, we are not persuaded that doing so would be appropriate in the
    circumstances of this case. It is not clear that the policy considerations
    addressed in
Hill
would be applied equally in circumstances where a
    statutory immunity has been found to exist. The appellants additional assertion
    that there have been changes to the investigative and adjudicative structure of
    the Law Society since
Edwards
was decided does not persuade us that a
    change in the circumstances or evidence that fundamentally shifts the
    parameters of the debate has been established:
Bedford
, at para. 42,
Carter
,
    at para. 44.

[12]

Further, both
Edwards
and
Conway
were decisions of
    panels of three judges of this court. Only a panel of five judges of this court
    could overcome them, but the appellant did not seek the appointment of an
    enlarged panel. Consequently we have no jurisdiction to revisit the outcome in
    either
Edwards
or
Conway
.

[13]

For these reasons, the appeal is dismissed with costs fixed in the
    amount of $5,000, inclusive of disbursements and taxes.

P. Lauwers J.A.

C.W. Hourigan J.A.

M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Salewski v. Lalonde, 2017 ONCA 515

DATE: 20170620

DOCKET: C62705

Simmons, Rouleau and Roberts JJ.A.

BETWEEN

Doyle Salewski Inc. in its capacity as Trustee in
    Bankruptcy Golden Oaks Enterprises Inc. and Joseph Gillis Jean Claude Lacasse

Plaintiff (Respondent)

and

Monique Lalonde and Paul Lalonde

Defendants (Appellants)

AND BETWEEN

Doyle Salewski Inc. in its capacity as Trustee in
    Bankruptcy Golden Oaks Enterprises Inc. and Joseph Gillis Jean Claude Lacasse

Plaintiff (Respondent)

and

Lorne Scott

Defendant (Appellant)

Alyssa Tomkins and Anne M. Tardif, for the appellants

Robert De Toni and John D. Dempster, for the respondent

Heard: May 2, 2017

On appeal from the judgment
    of Justice Stanley J. Kershman of the Superior Court of Justice, dated August
    22, 2016, with reasons reported at 2016 ONSC 5313.

By the Court:

[1]

The appellants appeal from an order dismissing a motion made on behalf
    of themselves and others to strike all or part of several statements of claim
    and granting a cross-motion permitting amendments to several statements of
    claim.

[2]

At the appeal hearing, we raised the question
whether
    the order under appeal is final or interlocutory and whether this court has
    jurisdiction to entertain the appeal. After hearing submissions, we reserved
    our decision on the jurisdiction issue. We then heard the substantive arguments
    on appeal and indicated that if we concluded the order is interlocutory, we
    would seek permission from the Chief Justice of the Superior Court to
    reconstitute ourselves as a panel of the Divisional Court.

[3]

For reasons we will explain, we have concluded that the
    order under appeal is interlocutory and that accordingly, this court has no
    jurisdiction to entertain the appeal. We have also concluded that the
    appellants motion was premature and that as a result this is not an
    appropriate case in which to seek permission to reconstitute ourselves as a
    panel of the Divisional Court. The appeal is therefore quashed.

Background

[4]

The appellants are among the defendants in several
    actions in which the respondent, as trustee in bankruptcy of the promoters of
    an alleged Ponzi scheme, is seeking to recover monies allegedly paid out as
    part of the scheme.

[5]

According to the facts as pleaded, the respondent, Doyle Salewski
    Inc. (DSI), is a trustee in bankruptcy acting in its capacity as trustee in
    bankruptcy of Golden Oaks Inc. and Jean Claude Lacasse, and was appointed as
    such on July 26, 2013.

[6]

In its statements of claim, issued in July 2015, DSI alleges
    that, in 2010 or early 2011, Golden Oaks began a real estate rent-to-own
    program under which individuals could rent dwellings with an option to purchase.
    However, DSI claims that, following investigation, it learned that Golden Oaks
    was engaged predominately in the business of selling promissory notes to
    investors and that this activity generated over 96% of its revenue. According
    to DSI, Golden Oaks was never profitable and the promissory notes it and
    Lacasse issued offered interest rates of up to 66,981% on an annualized basis.
    DSI also claims that there was a referral scheme in place under which referral
    commissions were paid to various parties who referred investors to Golden Oaks.

[7]

In its action against the appellants, Monique Lalonde and Paul
    Lalonde (collectively the Lalondes), DSI alleges that the Lalondes entered
    into usurious promissory notes with Golden Oaks under which they loaned money
    to Golden Oaks at usurious rates of interest and that the Lalondes knew or
    ought to have known that Golden Oaks was operating at a massive loss and could
    not withstand payment of the usurious rates of interest. DSI states that the
    interest paid to the Lalondes came from investments by other investors and not
    Golden Oaks business operations. DSI claims that the usurious interest paid by
    Golden Oaks is misappropriated monies of stakeholders which should be
    returned to DSI, representing the interests of all stakeholders. DSI relies on
    s. 347 of the
Criminal Code
and claims the return of usurious interest
    based on the doctrine of unjust enrichment.

[8]

In its action against the appellant, Lorne Scott, DSI alleges
    that Scott is a licensed real estate agent and that he received commissions
    from Golden Oaks for referring investors to Golden Oaks. DSI claims that the
    commissions are unlawful and contrary to the
Securities Act
, R.S.O.
    1990, c. S.5, because Scott is not licensed to sell promissory notes, or receive
    remuneration for their sale.  DSI claims that the commissions paid by Golden
    Oaks are misappropriated monies of stakeholders which should be returned to
    DSI, representing the interests of all stakeholders. In addition, and among
    other causes of action, DSI relies on unjust enrichment to claim recovery of
    commissions paid to Scott.

[9]

In addition to its actions against the appellants, DSI commenced
    over 20 other actions, some in Small Claims Court and some in the Superior
    Court, seeking to recover usurious interest and/or unlawful commissions in
    relation to the Golden Oaks program.

The Motion to Strike

[10]

By agreement among the parties, the appellants moved
    on behalf of themselves and other defendants sued by the respondent. Among
    other things, the appellants claimed an order striking the claims for usurious
    interest and unlawful commissions and also striking amendments made to the
    Scott statement of claim prior to service.

[11]

In their notice of motion, the appellants relied
    on rules 21.01(1)(b), 25.06, 26.01 and 37 of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194
. They also sought an
    order that the result on the motion apply to the claims for usurious interest
    and unlawful commissions in the actions involving the other defendants on whose
    behalf they had agreed to bring the motion.

The Formal Order

[12]

In relation to the motion to strike the claims
    for usurious interest and unlawful commissions, the formal order states:

THIS COURT ORDERS that the Defendants motion
    for striking the claim for receipt of Usurious Interest and Unlawful
    Commissions be and is hereby dismissed.

[13]

The formal order also includes paragraphs delineating
    the claims to which it applies, dismissing a motion to strike a conspiracy
    claim in the Scott action and granting the respondent leave to amend its
    statements of claim in various actions.

The Parties Positions concerning the
    Final/Interlocutory Issue

(i)

The appellants position

[14]

The appellants submit that the order under
    appeal is final because, in their written and oral submissions on the motion,
    they sought a determination of a question of law under rule 21.01(1)(a) that
    the usurious interest claims and the unlawful commissions claims are statute
    barred.

[15]

Rule 21.01(1)(a) provides that a party may move
    before a judge for the determination, before trial, of a question of law raised
    by a pleading where the determination of the question may dispose of all or
    part of the action, substantially shorten the trial or result in a substantial
    saving of costs.

[16]

Relying on
Beardsley v. Ontario
(2001), 57 O.R. (3d) 1 (C.A.), at para. 21, the appellants argued before
    the motion judge that a claim can be struck under rule 21.01(1)(a) based on the
    expiry of a limitation period where it is plain and obvious from a review of a
    statement of claim that no additional facts could be asserted that would alter
    the conclusion that a limitation period had expired.

[17]

The appellants assert that they sought
    determination of the legal issue that the respondents claims for unjust enrichment
    are statute-barred on the basis that the bankrupts are a predecessor of the
    trustee under s. 12 of the
Limitations Act
,
2002
,
    S.O. 2002, c. 24, Sched. B
(the Act). Under s. 12, where a
    proceeding is commenced by a person claiming through a predecessor in right,
    title or interest, the basic limitation period established under ss. 4 and 5(1)
of the Act runs
from the earlier of the day the predecessor
    (in this case, the bankrupts) first knew or ought to have known about their
    claim or the day the person commencing the proceeding (in this case, the
    respondent) first knew or ought to have known about the claim.

[18]

Before the motion judge, the appellants argued that
    the claims for usurious interest and unlawful commissions formed part of the
    property of the bankrupts as defined in s. 67 of the
Bankruptcy and
    Insolvency Act
, R.S.C. 1985, c. B-3 (the BIA), and,
    upon bankruptcy, vested in the trustee under s. 71 of that act. Further, based on
    the facts as pleaded (or as revealed by documents referred to in the statement
    of claim), it is clear that the unjust enrichment claims are statute-barred and
    that no other facts could be pleaded that would alter that conclusion.

[19]

The last promissory note the bankrupts issued to
    the Lalondes was dated February 22, 2013 and was repayable by April 8, 2013. According
    to the appellants, on a plain reading of s. 5(1) of the Act, the limitation
    period began to run from the date the promissory notes came due. Similarly, the
    last commission payment to Scott was made on March 5, 2013, and under s. 5(1)
    the basic limitation period runs from that date. In both instances, the statements
    of claim were issued on July 23, 2015, which is beyond the two-year limitation
    period set out in the Act.

[20]

Relying on ss. 30(1)(d), 67 and 71 of the BIA,
Giffen
    (Re)
, [1998] 1 S.C.R. 91, and
Lefebvre (Trustee
    of); Tremblay (Trustee of)
, 2004 SCC 63, [2004] 3 S.C.R.
    326, the appellants submit that, where claims such as these are advanced by a
    trustee in bankruptcy, there can be no question but that the trustee in
    bankruptcy steps into the shoes of the bankrupt and does not bring the action
    in a representative capacity on behalf of the unsecured creditors. As the
    bankrupts gave the alleged usurious promissory notes and paid the alleged
    unlawful commissions, there can also be no question that they knew of their
    potential claims when they paid the sums at issue.

[21]

The appellants argue that the motion judge's
    reasons disclose that, in dismissing their motion to strike, he finally
    determined that (i) the respondent is not a person advancing its claims through
    a predecessor in right, title or interest under s. 12 of the Act, and (ii) the
    limitation clock therefore runs based on the respondents knowledge of the
    claims, rather than the bankrupts knowledge of the claims. As an example, they
    point to paras. 132 to 134 of the motion judges reasons, where he said:

It was not until the Trustees Fourth Report
    dated May 30, 2014 that the Trustee was able to confirm with certainty that
    usurious interest rates and unlawful commissions were being received.

Notwithstanding the arguments put forward by
    the [appellants] that the [respondents] claims are statute-barred because
    discoverability is based on the date that Golden Oaks discovered or should have
    discovered the claim, the Court finds that because of the fraudulent scheme,
    the matter was not discoverable or discovered until the Fourth Report was
    prepared in May 2014. Therefore, the Court finds that the discoverability clock
    ran from the time that the Fourth Report was prepared.

All of the Trustees Statements of Claim were
    issued by July 2015. Therefore, the Court finds that these claims are not
    statute barred.

[22]

The appellants assert that the motion judges
    finding that the respondent is not a person claiming through a predecessor under
    s. 12 of the Act will make that issue
res judicata
or subject to issue estoppel. Accordingly, as the appellants will
    be barred from raising that defence in the future, the motion judges order is
    a final order:
Ball v. Donais
(1993), 13 O.R.
    (3d) 322 (C.A.), at p. 324.

(ii)

The respondents position

[23]

At the appeal hearing, respondents counsel
    indicated they had initially advised the appellants counsel that they took the
    position the order under appeal is interlocutory. However, they later withdrew
    that objection because they believed that the order permitting the respondent
    to amend its statements of claim is final and gives rise to a claim of
res
    judicata
or issue estoppel on the question forming the
    subject matter of the appellants appeal. The respondent therefore did not
    raise jurisdiction as an issue in its factum filed on the appeal.

[24]

Following colloquy with the panel at the appeal
    hearing, the respondents counsel withdrew their assertion that the question
    forming the subject matter of the appeal is subject to a claim of
res
    judicata
or issue estoppel.

Discussion

[25]

We reject the appellants submission that the
    order under appeal is a final order for three reasons.

[26]

First,
    none of the notice of motion, the motion judges reasons or the formal order
    delineates the precise legal issue the appellants say has been determined. As we
    have explained, the appellants did not rely on rule 21.01(1)(a) in their notice
    of motion and the formal order simply dismisses the motion to strike. Although
    the motion judges reasons contain certain findings, the reasons do not include
    a disposition section in which the motion judge formally invokes rule
    21.01(1)(a) and purports to determine a question of law.

[27]

While not necessarily determinative, in general, the content of a
    formal order is integral to determining whether the order is final or
    interlocutory:
Ashak v. Ontario (Director, Family Responsibility Office)
,
    2013 ONCA 375, 115 O.R. (3d) 401, at para. 13. Moreover, it is trite law that
    an appeal lies from the formal order, not the underlying reasons:
Grand
    River Enterprises v. Burnham
(2005), 197
    O.A.C. 168 (C.A.), at para. 10.

[28]

In this case, the notice of motion to strike invoked only rule
    21.01(1)(b) and the formal order simply dismisses the motion. On the face of
    these documents, the order under appeal is interlocutory:
S.(R.) v. H.(R.)
(2000), 52 O.R. (3d) 152 (C.A.).

[29]

Moreover,
    even accepting that the appellants motion could proceed under rule 21.01(1)(a)
    for a determination that the limitation period for the unjust enrichment claims
    had expired, it does not follow that dismissal of the appellants motion results
    in a binding determination that the limitation period had not expired.

[30]

Rather, this court will look to the formal order and the
    underlying reasons to assess whether the order is final or interlocutory. For
    example, in
Ball
, in holding that an order dismissing a motion under
    rule 21.01(1)(a) was final, this court noted that the motion judge
determined

    that the action was not statute-barred under
s.
    180(1) of the
Highway Traffic Act
,
    R.S.O. 1980, c. 198
, and
made an order accordingly
. The
    formal order in that case included the motion judges determination that the
    action was not barred by that provision:
S.(R.)
, at para. 17.

[31]

Second,
    although the motion judge referred in his reasons to the appellants
    submissions premised on rule 21.01(1)(a), we are not persuaded that, read
    fairly, his reasons for dismissing their request for a determination that the
    limitation period for the unjust enrichment claims had expired reveal an
    intention to make a binding determination that: (i) in advancing its claims,
    the respondent was not a person claiming through a predecessor in right, title
    or interest (namely, the bankrupts) within the meaning of s. 12 of the Act; or
    (ii) that the limitation period for advancing the unjust enrichment claims had not
    expired
.

[32]

The appellants motion to strike was made based on the allegations
    contained in the statement of claim, prior to the close of pleadings and prior
    to a defence being delivered. As the motion judge recognized, this required
    that he proceed on an assumption that the allegations contained in the
    statement of claim are true.

[33]

The appellants position on the motion was that the unjust
    enrichment claims could be struck as statute-barred
under
rule 21.01(1)(a) because it is plain and
    obvious from a review of the statement of claim that no additional facts could
    be asserted that would alter the conclusion that a limitation period has
    expired. If the motion judge accepted that position, it was the appellants
    assertion that he could properly find the unjust enrichment claims were
    statute-barred.

[34]

However, even assuming that assertion is correct, it does not follow
    that, if he rejected the appellants submissions, the motion judge could make a
    binding declaration that the limitation period had not expired. That is because
    the motion judge was not in a position, on a pleadings motion, to make binding
    determinations of fact. At best, he could posit circumstances in which the
    limitation period would not have expired. His reasons must be read in this
    context.

[35]

Accordingly, although the motion judge may have expressed a conclusion
    that the respondents limitation period had not expired, and although that
    conclusion may have been premised, at least in part, on a further implicit
    conclusion that, in the context of the Ponzi scheme the respondent alleges, the
    respondent was not a person claiming through the bankrupts as predecessors
    under s. 12 of the Act, those conclusions could serve as no more than the
    motion judges explanation for rejecting the appellants motion to strike based
    on the expiry of a limitation period. The motion judge was not in a position to
    find that a Ponzi scheme as alleged by the respondent existed. Considered in their
    proper context, any conclusions expressed by the motion judge cannot be read as
    binding determinations giving rise to
res judicata
or issue estoppel.

[36]

Again,
    our conclusion in this respect is reinforced by the fact that the motion judge
    did not include a disposition section in his reasons invoking rule 21.01(1)(a)
    and purporting to make a binding declaration, in addition to the fact that the
    formal order simply dismisses the appellants motion to strike.

[37]

In
    a similar context, namely, orders dismissing a motion for summary judgment
    where a party claims that a motion judge has made binding determinations of
    fact or law, this court has said that a court proposing to exercise its powers
    to make such determinations under either rule 20.04(4) or (5) should
    specifically invoke the rule and that, reference to the rule, as well as the
    particular determination made, should form part of the formal order:
Ashak
,
    at paras. 8, 11, 13;
Skunk v. Ketash
, 2016 ONCA 841, 94 C.P.C. (7th)
    141, at paras. 35-36.

[38]

Although
    failure to do so is not determinative in the summary judgment context, this
    court has also said that in the absence of an express indication by the motion
    judge that any conclusions expressed in dismissing a motion for summary
    judgment are intended to be binding on the parties, it should be presumed that
    they are not:
Skunk
, at para. 58.

[39]

This
    is because the motion judges conclusions in dismissing a summary judgment
    motion are often simply a means of expressing why he or she dismissed the
    motion  and the force with which a motion judge expresses conclusions should
    not determine whether an order is interlocutory or final. Moreover, holding
    formal orders to be final where they do nothing more than dismiss a summary
    judgment motion could lead to confusion and uncertainty about the effect of
    reasons for judgment and appropriate appeal routes:
Skunk
, at paras.
    56-58, 60;
Ashak
, at para 11.

[40]

In
    our view, the same considerations apply in this case. As we have said, the appellants
    did not serve a notice of motion invoking rule 21.01(1)(a) or detailing the
    precise legal ruling they sought. The precise ruling the appellants say the
    motion judge made does not appear in his reasons or in the formal order.
    Holding that the motion judges reasons constitute a final order giving rise to
res judicata
or issue estoppel in relation to a particular issue in
    these circumstances could lead to confusion about the effect of reasons for
    judgment and resulting appeal routes.

[41]

Third,
    and in any event, we are not satisfied that the motion judge had authority to
    make a binding determination
under
rule
    21.01(1)(a) in this case. His decision should not therefore be treated as doing
    so.

[42]

In
    our view, this courts comment in
Beardsley
about the ability to seek
    a ruling under rule 21.01(1)(a) concerning a limitations defence prior to the
    close of pleadings has likely been overtaken by the enactment of the
Limitations
    Act, 2002
, in cases where the Act applies. We are also of the view that
    the comment in
Beardsley
was never intended to apply to a case that is
    legally or factually complex.

[43]

In
Beardsley
, at para. 21,

this court explained that the expiry
    of a limitation period does not render a cause of action a nullity, but rather,
    it is a defence that must be pleaded. This court went on to say that it would
    be unduly technical to require delivery of a statement of defence in
    circumstances where it is plain and obvious from a review of a statement of
    claim that no additional facts could be asserted that would alter the
    conclusion that a limitation period had expired.

[44]

To
    support this statement, in a footnote tied to para. 21, this court gave the
    example of the expiry of a two-year limitation period under the
Highway
    Traffic Act
, R.S.O. 1990, c. H. 8, in connection with a claim for
    property damages only,
where it is clear the discoverability rule does not
    apply
 (emphasis added).

[45]

However,
    the basic limitation period established by the
Limitations Act, 2002
is now premised on the discoverability rule. The discoverability rule raises
    issues of mixed fact and law:
Longo v. MacLaren Art Centre
, 2014 ONCA
    526, 323 O.A.C. 246, at para. 38. We therefore question whether there is now
    any circumstance in which a limitation issue under the Act can properly be
    determined under rule 21.01(1)(a) unless pleadings are closed and it is clear
    the facts are undisputed. Absent such circumstances, we are sceptical that any
    proposed limitation defence under the Act will involve a question of law
    raised by a pleading as required under rule 21.01(1)(a).

[46]

In
    any event, as we have said, in our view, this courts comment at para. 21 of
Beardsley
was never intended to apply in a situation such as this, where the fact
    situation is not straightforward and has not been fully defined by the
    pleadings, and where the respondent seeks to advance what may be a novel claim.
    In particular, although the respondent has delivered a statement of claim, it
    is not yet clear what allegations it will make in response to a limitations
    defence, for example, whether explicit allegations of fraud will be made and against
    whom such allegations, if any, will be made,
i.e.
, against the
    bankrupts or against the bankrupts and the appellants. See also:
Tran v.
    University of Western Ontario
, 2016 ONCA 978, at paras. 19 to 21.

[47]

The
    respondents claim may be novel, at least in part, because rather than
    asserting that it stands in the shoes of the bankrupts or that representative
    claims for unjust enrichment are authorized in this case by statute, the
    respondent, as trustee in bankruptcy, purports to act in a representative
    capacity for unsecured creditors because the claims are premised on fraudulent
    conduct of the bankrupts. As we have said, the allegations of fraud are not yet
    clearly defined  but they could be more clearly defined in a reply responding
    to a limitations defence.

[48]

Further,
    it is also not clear to what extent the respondent will rely, in responding to
    any limitations defences, on assertions about when the bankrupts, or either of
    them, knew or ought to have known that a proceeding would be an appropriate
    means to seek a remedy within the meaning of s. 5(1) of the
Limitations
    Act, 2002
. Any such assertions may well raise issues of mixed fact and
    law.

[49]

As
    indicated above, the example on which this court relied in the footnote tied to
    para. 21 of
Beardsley
was neither legally nor factually complex.
Beardsley
pre-dated the enactment of the
Limitations Act, 2002
, and the example this
    court posited involved a straightforward, undisputed fact situation in which
    the cause of action had accrued and to which the discoverability rule did not
    apply. That is not this case.

[50]

In
    our view, the appellants motion was premature. We conclude that the motion
    judge could not properly have made a final determination of the limitations
    issue in favour of the appellants prior to the close of pleadings and without
    the benefit of a more fulsome record. In these circumstances, his reasons for
dismissing
the appellants motion should not be read as a final determination of the
    limitations issue in favour of the respondent giving rise to
res judicata
or issue estoppel.

[51]

Particularly
    in light of our conclusion that the appellants motion was premature, this is
    not an appropriate case to seek permission from the Chief Justice of the
    Superior Court to reconstitute ourselves as a panel of the Divisional Court to
    dispose of the substantive issues on appeal. We also note that the parties did
    not address the issue of leave. In the case of an interlocutory order made
    outside of Toronto, a request for leave must be made to a single judge of the
    Superior Court: ss. 19(1) and 21(3) of the
Courts of Justice Act
,
    R.S.O. 1990, c. C. 43; rule 62.02. Moreover, no right of appeal exists until
    leave has been granted:
Hillmond Investments Ltd. v. Canadian Imperial Bank
    of Commerce
(1996), 29 O.R. (3d) 612 (C.A.), at p. 620.

Disposition

[52]

Based
    on the foregoing reasons, the appeal is quashed. Given that the issue of
    jurisdiction was raised by the panel at the appeal hearing, we decline to award
    costs.

Released:

JUN 20 2017                                             Janet
    Simmons J.A.

PR                                                             Paul
    Rouleau J.A.

L.B.
    Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Schwilgin v. Szivy, 2017 ONCA 453

DATE: 20170605

DOCKET: M47438

M47439

Pepall, Lauwers and Huscroft JJ.A.

BETWEEN

Laszlo Schwilgin

Moving Party

and

Lori Anne Szivy

Responding Party

Laszlo Schwilgin, acting in person

Robie S. Loomer, for the responding party

Heard: In writing

Disposition pursuant to Rule 2.1

REASONS FOR DECISION

[1]

Counsel for the responding party requested a review pursuant to rule 2.1
    of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194, seeking to
    have Mr. Schwilgins two motions for an extension of time dismissed on the
    basis that they are frivolous, vexatious, or otherwise an abuse of the process
    of the court.  On March 13, 2017, Roberts J.A. directed the Registrar to issue
    notice to the parties under r. 2.1.01(3) and collect submissions for
    consideration by a panel under r. 2.1.02.

[2]

The two motions arise out of matrimonial litigation, the history of which
    is set out in the May 20, 2010 reasons of Métivier J (2010 ONSC 2857). Mr.
    Schwilgin seeks an extension of time to serve and file his appeals of the orders
    of Backhouse J. (May 20, 2014) and Sheard J. (July 8, 2016).

[3]

The procedural history of these matters may be summarized as follows:

·

August 21, 2015  Juriansz J.A. dismissed Mr. Schwilgins motion
    seeking an extension of time to seek leave to appeal from the Divisional
    Courts order dismissing his appeal of Backhouse J.s order, stating that the
    proposed leave application was devoid of merit.

·

November 19, 2015  Brown J.A. dismissed Mr. Schwilgins motion
    seeking an extension of time to file notice of appeal of Backhouse J.s order.
    Brown J.A. did not accept Mr. Schwilgins explanation for delay and found that
    there was little, if any, merit to the proposed appeal, and that Mr.
    Schwilgin had failed to pay outstanding costs orders resulting in prejudice to
    the respondent.

·

July 20, 2016  Sheard J. of the Divisional Court struck Mr.
    Schwilgins appeal of an order made by Kershman J., concerning a garnishment
    order to enforce the costs order of Backhouse J.

·

January 20, 2017  A panel of this court dismissed Mr.
    Schwilgins request to review the decision of Brown J.A.

[4]

Mr. Schwilgin submits that he has been prejudiced as a layperson and
    requires additional time to obtain Legal Aid to provide an opinion as to the
    merits of his proposed appeals. He submits, further, that he has serious
    financial and medical issues.

[5]

Mr. Schwilgin has amassed several outstanding costs orders totaling over
    $33,000 and is in arrears of child support. He has been found to have used the
    appeal process as a means of delaying payment, causing considerable prejudice
    to the respondent. As a result of orders by Kershman J. and Sheard J., Mr.
    Schwilgin is not to bring further motions without leave of the court.

[6]

Mr. Schwilgin continues to bring motions in this court that have already
    been dismissed, among other things, on the basis that they lack merit. He continues
    to serve the respondents former counsel, despite being informed that counsel
    no longer acts for the respondent.

[7]

In all of these circumstances, it is apparent to us that these motions
    are frivolous, vexatious, and an abuse of the process of the court.

[8]

The motions are dismissed.

[9]

Further, it is ordered that Mr. Schwilgin may not bring any further
    motions or proceedings in this matter in this court without leave of a judge of
    this court.

[10]

The
    court dispenses with the need for the respondent to seek the Mr. Schwilgins
    approval as to the form and content of this courts order.

[11]

Mr.
    Schwilgin shall pay costs in the amount of $500, inclusive of taxes and
    disbursements.

S.E. Pepall J.A.

P. Lauwers J.A.

Grant Huscroft
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Shepherd (Re), 2017 ONCA 530

DATE: 20170626

DOCKET: C63045

Strathy C.J.O, Benotto and Miller JJ.A.

IN THE MATTER OF: FRANK SHEPHERD

AN APPEAL UNDER PART XX.1 OF THE
CODE

Frank Shepherd, in person

Ken J. Berger, for the appellant

Julie A. Zamprogna Ballès, for
    the respondent, The Person in Charge of the Southwest Centre for Forensic
    Mental Health St. Josephs Health Care London

Alexander Hrybinsky, for the respondent, The Attorney
    General of Ontario

Heard: June 20, 2017

On appeal against the disposition of the Ontario Review
    Board, dated September 9, 2016.

REASONS FOR DECISION

[1]

Mr. Shepherd appeals the disposition of the Ontario Review Board, which
    accepted the joint submission of his counsel and his doctor. The Board
    determined his care should continue to be managed pursuant to a detention
    order.

[2]

On February 4, 2009, Mr. Shepherd was found not criminally responsible
    on account of mental disorder on charges of assault, forcible confinement and
    criminal harassment. The facts underlying the criminal harassment offence
    relate to an incident where Mr. Shepherd approached the victim in her car,
    cornered her and threatened her. In a separate incident, Mr. Shepherds wife
    was the victim of the assault and forcible confinement offences.

[3]

On September 8, 2016, the Board conducted a review with a five-member
    panel. Mr. Shepherds counsel and his doctor jointly submitted that his care be
    managed pursuant to a detention order with passes for up to 72 hours, up to 12
    times a year, to enter the community indirectly supervised. This latter
    condition represented an increase in Mr. Shepherds privileges.

[4]

Mr. Shepherd appeals on the basis that the Board erred in accepting the
    joint submission of the parties without properly discharging its inquisitorial
    duty at the hearing.  We do not agree.

[5]

Before the Board, Mr. Shepherd was represented by counsel who did not
    contest the issue of whether Mr. Shepherd continued to pose a significant threat
    to the safety of the public. There is no suggestion that counsel acted without
    authority, was under a misapprehension, or provided ineffective assistance: see
Re Kelly
, 2015 ONCA 95. This court has recognized that joint
    submissions play an important role in proceedings before the Board: see
Re
    Osawe
, 2015 ONCA 280. The Board was entitled to rely on the joint
    submission.

[6]

The Board also conducted its own inquiry and concluded, based on the
    evidence of the physician and the hospital report, that Mr. Shepherd remains a
    significant threat to the safety of the public. The Board found, at p. 4 of its
    reasons, that he:

[P]resents a moderate-to-high risk of violent reoffending in
    the next 12 months  [and] could not be safely managed with a Conditional
    Discharge disposition at this time given his psychiatric symptoms, lack of
    insight, and potential for instability and treatment non-adherence.

[7]

There was evidence before the Board about recent medication changes and
    a new residence. At Mr. Shepherds next review, the Board will have the
    advantage of considering the impact of these changes.

[8]

There is no basis for appellate intervention. The appeal is dismissed.

G.R. Strathy C.J.O.

M.L. Benotto J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Speck v. Ontario,
2017
    ONCA 521

DATE: 20170621

DOCKET: C62984

Weiler, van Rensburg and Huscroft JJ.A.

BETWEEN

Todd Elliott Speck

Plaintiff (Appellant)

and

Her Majesty the Queen in Right of Ontario, Susan
    Fitzpatrick, Beverly Lyman, Pauline Ryan, and James Docherty

Defendants (Respondents)

Todd Speck, in person

Daniel Mayer, for the respondents

Heard: June 9, 2017

On appeal from the order of Justice Helen A. Rady of the
    Superior Court of Justice, dated October 27, 2016, with reasons reported at
    2016 ONSC 6581.

REASONS FOR DECISION

[1]

The appellant, Mr. Speck, was a unionized Crown employee until 2014 when
    his employment was terminated following an investigation into alleged
    misconduct. He started a claim following his termination pleading conspiracy to
    injure and unlawful means conspiracy, misfeasance in public office, abuse of
    process, defamatory libel, and slander.

[2]

The respondents are the Crown, several Crown managers, and a third-party
    hired by the Crown to investigate alleged misconduct against Mr. Speck.

[3]

The respondents successfully brought a motion under r. 21.01(3) of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194, to dismiss the appellants
    claim on the basis that it falls under the terms of the collective agreement
    and therefore is within the exclusive jurisdiction of the Grievance Settlement
    Board. The motion judge held the essential nature of the claim arose out of the
    collective agreement.

[4]

The appellant raises a number of grounds of appeal. In particular, he
    alleges the motion judge:

1.

failed to follow the Supreme Courts decision in
Goudie v. Ottawa
    (City)
, 2003 SCC 14, [2003] 1 S.C.R. 141
;

2.

made palpable and overriding errors on the facts;

3.

misstated the legal test;

4.

erroneously held the claims fell within the ambit of the collective
    agreement; and

5.

failed to rule impartially.

[5]

We would not give effect to any of the appellants arguments.

[6]

The motion judge did not err in applying the legal test or in
    characterizing the pleadings in this claim as arising out of the collective
    agreement.
The Crown did not step outside the
    collective agreement when it suspended the appellant under the
Public
    Service of Ontario Act, 2006
, S.O. 2006, c.
    35. In any event, suspensions fall within the interpretation, administration,
    application or violation of the collective agreement, even if non-disciplinary.

[7]

The appellant relied heavily on
    the decision in
Goudie
. It
    involved a pre-employment agreement and is distinguishable on its facts. The
    appellant also relied on
Piko v. Hudsons Bay Co.
(1998), 41 O.R. (3d) 729 (C.A.), which involved
    conduct after the employment relationship had ended and is also
    distinguishable.

[8]

With respect to the claims against
    Mr. Docherty, who was hired to investigate Mr. Specks alleged misconduct, the question
    is not how Mr. Docherty is labelled, but the substance of his alleged conduct.
    All of Mr. Dochertys conduct as described in the statement of claim is
    properly characterized as falling within the disciplinary procedures of the
    collective agreement. The collective agreement expressly stipulates that no
    employee shall be disciplined or discharged without just cause. As a result, it
    is implicit that the Crowns managerial rights extend to investigating
    allegations of wrongdoing to determine if there is just cause to discipline or
    discharge an employee.

[9]

Further, the issue of whether an
    employers reliance on a third-party investigator falls outside of the
    collective agreement was addressed in
Weber v. Ontario Hydro
, [1995] 2 S.C.R. 929, at paras. 74-78
. In that case, the Supreme Court rejected the
    argument that hiring a private firm to investigate took the matter outside the
    scope of the collective agreement because, as in this case, the essential
    character of the investigation fell within the ambit of the agreement.

[10]

Finally, the appellant submits the
    motion judge failed to address a number of issues he raised. She was not
    required to address all of the appellants submissions, but only those that
    were relevant to the issue before her, which she did.

[11]

There is no substance to the allegation of bias.

[12]

Accordingly, the appeal is dismissed. Costs of the appeal are payable to
    the respondents and are fixed in the amount of $2,000 inclusive of
    disbursements and all applicable taxes.

Karen M. Weiler J.A.

K. van Rensburg J.A.

Grant Huscroft J.A.