WARNING

THIS IS AN APPEAL UNDER THE

YOUTH
CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1)          Subject to this section, no person
    shall publish the name of a young person, or any other information related to a
    young person, if it would identify the young person as a young person dealt
    with under this Act.

(2) Subsection (1) does not apply

(a) in a case where the information relates to a
    young person who has received an adult sentence;

(b) in a case where the information relates to a
    young person who has received a youth sentence for a violent offence and the
    youth justice court has ordered a lifting of the publication ban under
    subsection 75(2); and

(c) in a case where the publication of the
    information is made in the course of the administration of justice, if it is
    not the purpose of the publication to make the information known in the
    community.

(3) A young person referred to in subsection (1) may,
    after he or she attains the age of eighteen years, publish or cause to be
    published information that would identify him or her as having been dealt with
    under this Act or the
Young Offenders Act
, chapter Y-1 of the Revised
    Statutes of Canada, 1985, provided that he or she is not in custody pursuant to
    either Act at the time of the publication.

111(1)          Subject to this section, no person
    shall publish the name of a child or young person, or any other information
    related to a child or a young person, if it would identify the child or young
    person as having been a victim of, or as having appeared as a witness in
    connection with, an offence committed or alleged to have been committed by a
    young person.

138(1)          Every person who contravenes
    subsection 110(1) (identity of offender not to be published), 111(1) (identity
    of victim or witness not to be published), 118(1) (no access to records unless
    authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no
    subsequent disclosure) of this Act, or subsection 38(1) (identity not to be
    published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure
    by school) or (1.15) (information to be kept separate), 45(2) (destruction of
    records) or 46(1) (prohibition against disclosure) of the Young Offenders Act,
    chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence and liable
    to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary
    conviction.

COURT OF APPEAL FOR ONTARIO

CITATION: Toronto (Police Service) v. L.D., 2018 ONCA 17

DATE: 20180112

DOCKET: C62728

Feldman, MacPherson and Huscroft JJ.A.

BETWEEN

Chief of
    Police

Toronto
    Police Service

Appellant (Applicant)

and

L.D., a young person

Respondent (Responding Party)

and

Steven Mignardi

Respondent (Cross-Applicant)

Gail Glickman, for the appellant, Chief of Police Toronto
    Police Service

No one appearing for the respondent, L.D.

Joanne Mulcahy, for the respondent, Steven Mignardi

Jane Stewart and Mary Birdsell, for the intervener,
    Justice for Children and Youth

Miriam Saksznajder and Carla Goncalves, for the
    intervener, Office of the Independent Police Review Director

Margaret Bojanowska, for the intervener, Criminal
    Lawyers Association

Deborah Krick, for the Attorney General (Ontario)
    (written submissions only, by invitation of the Court)

Heard: November 7, 2017

On appeal from the judgment of Justice E.M. Morgan of the
    Superior Court of Justice, dated August 31, 2016, allowing an appeal from the
    amended judgment of Justice M.L. Cohen of the Ontario Court of Justice, dated
    September 10, 2015.

MacPherson J.A.:

A.

INTRODUCTION

[1]

An unusual preliminary issue has arisen on the appeal: should the appeal
    be quashed because of a jurisdictional issue?

[2]

What makes the issue unusual is that there is no question that this
    court has jurisdiction to hear the appeal from the judgment of the Superior
    Court judge. However, it is not clear that the Superior Court judge had
    jurisdiction to hear an appeal from the decision of the Ontario Court of
    Justice judge, sitting as a youth justice court judge.

[3]

For the reasons set out below, I have determined that there was no right
    of appeal from the decision of the youth justice court to the Superior Court of
    Justice.  The Superior Court did have jurisdiction to review the decision of
    the youth justice court by way of a
certiorari
application under part
    XXVI of the
Criminal Code
, which also provides for a further appeal to
    this court. It would therefore be open to this court to treat the decision of
    the Superior Court judge as if it were made on an application for
certiorari
and to determine this appeal despite the error in the Superior Court. However,
    I have decided that the court should decline to do so in the circumstances of this
    case.

B.

FACTS

(1)

The case in the Ontario Court of Justice (sitting as a youth justice court)

[4]

Constable Steven Mignardi of the Toronto Police Service (TPS) was
    charged under the
Police Services Act
, R.S.O. 1990, c. P. 15 (
PSA
)
    with discreditable conduct in relation to the alleged assault of L.D., a young
    person who had been arrested by the TPS. The matter has been referred to a
    disciplinary hearing.

[5]

In the context of this administrative proceeding, the TPS brought an
    application for an order under s. 119(1)(s) of the
Youth Criminal Justice
    Act
, S.C. 2002, c.1 (
YCJA
) allowing access to the police
    records from the evening in question.

[6]

Constable Mignardi brought a cross-application under ss. 119(1)(s) and
    123 of the
YCJA
for access to records in the TPSs possession relating
    to additional incidents where L.D. was investigated, detained, arrested,
    convicted, and/or prosecuted.

[7]

On August 6, 2015, Cohen J. of the Ontario Court of Justice (sitting as
    a youth justice court judge under the
YCJA
) released her decision
    dismissing both the TPS and Mignardi applications. She issued very slightly
    revised reasons on September 10, 2015. Her conclusion was:

I find that the TPS and the officer, have failed to establish a
    valid interest in the section 119 records, or a valid and substantial interest
    in the section 123 records.

I further find that the TPS, and the officer, have failed to
    establish that access to the records is desirable in the interest of the proper
    administration of justice in relation to the section 119 records, or necessary
    in the interest of the proper administration of justice, in relation to the
    section 123 records.

For all of these reasons, I conclude there should be no access
    by the TPS and the officer to the records of LD. The application is dismissed.

(2)

The case in the Superior Court of Justice

[8]

Both the TPS and Constable Mignardi appealed the youth court judges
    decision to the Superior Court of Justice. The TPS cited s. 40(1) of the
Courts
    of Justice Act
, R.S.O. 1990, c. C.43 (
CJA
) as the basis for the
    appeal. Constable Mignardi cited no statutory basis for his appeal.

[9]

Section 40(1) of the
CJA
provides:

40(1)  If no
    provision is made concerning an appeal from an order of the Ontario Court of
    Justice, an appeal lies to the Superior Court of Justice.

[10]

The
    appeal was heard by Morgan J. of the Superior Court of Justice. In a decision
    released on August 31, 2016, he allowed the appeal. He set aside the decision
    of the youth court judge and ordered the following:

The records sought by Mignardi in his application before the
    youth court judge are hereby ordered to be produced.

Although the appeal judge did not expressly address
    the records sought by the TPS in its appeal, those records were included in the
    records sought by Constable Mignardi.

(3)

The case in the Court of Appeal

[11]

The
    TPS appealed the Superior Court judges decision to this court under s. 6(1)(b)
    of the
CJA
. Facta were delivered, and oral submissions made, by the
    appellant TPS, the respondent Constable Mignardi, and three interveners
    Justice for Children and Youth, Office of the Independent Police Review
    Director, and the Criminal Lawyers Association.

[12]

During
    the hearing, the court raised the issue of the jurisdiction of the Superior
    Court judge to hear an appeal from the decision of the youth court judge. Some
    of the parties and interveners made brief submissions on this issue.

[13]

Following
    the hearing, the court further considered, and became concerned about, this
    issue. On November 20, 2017, the courts Senior Legal Officer sent a letter to
    the parties, the interveners, and the provincial Crown inviting written submissions
    on the issue. The letter said, in part:

Further to the hearing of this Appeal, the Panel has directed
    that counsel provide written submissions on the issue of whether there was jurisdiction
    to appeal the decision of the Youth Court Judge. In this regard, I draw your
    attention to the case of
R. v. Parker
, 2011 ONCA 819. Counsel are
    asked to consider the impact of that decision on whether s. 40(1) of the
Courts
    of Justice Act
, R.S.O. 1990, c. C. 43 provided a route of appeal to the
    Superior Court of Justice. Counsel are also asked to make submissions on
    whether this Court should entertain the appeal even if s. 40(1) did not provide
    a right of appeal to the Superior Court of Justice.

[14]

By
    December 11, 2017, the court had received very helpful written submissions from
    the appellant, the respondent, two interveners, and the provincial Crown.

C.

issues

[15]

The
    issues are:

(1)

Does s.
    40(1) of the
CJA
support an appeal to the Superior Court of Justice
    from a decision of a youth court judge made under the
YCJA
?

(2)

If
    the answer to question (1) is No, is there another route to appeal or review a
    decision of a youth court judge to the Superior Court of Justice?

(3)

In light
    of the answers to questions (1) and (2), what should this court do with the
    appeal?

D.

analysis

(1)

Section 40(1) of the
CJA

[16]

The
    TPS concedes that its appeal of the youth justice courts decision to the
    Superior Court grounded in s. 40(1) of the
CJA
was misconceived in
    light of this courts decision in
R. v. Parker
, 2011 ONCA 819. This is
    a fair concession.

[17]

In
Parker
, the appellant (Parker) applied to the Ontario Court of Justice
    for the return of marijuana plants that had been seized under the
Controlled
    Drugs and Substances Act
, S.C. 1996, c. 19 (
CDSA
). This was a
    stand-alone application under s. 24 of the
CDSA
; there was no related
    prosecution. The application was dismissed and the appellant appealed to the
    Superior Court of Justice. The Superior Court judge held that he could hear the
    appeal under s. 40(1) of the
CJA
. He dismissed the appeal and Parker
    appealed to this court.

[18]

This
    court held that s. 40(1) of the
CJA
did not support the appeal. The court
    said, at para. 19:

[The appeal judge] held that the Superior Court had
    jurisdiction to hear the matter, pursuant to the summary conviction appeal
    provisions in the
Courts of Justice Act
, s. 40.
Amicus
counsel and Crown counsel agree that [the appeal judge] erred in reaching this
    conclusion.  While the interplay between federal and provincial jurisdictions
    in drug cases can be problematic, we are satisfied that the correct
    characterization of a s. 24 application is that it flows out of Parliaments
    criminal law power.
Accordingly, provincial rights of appeal have no
    application
. [Citations omitted; emphasis added.]

[19]

The
    remaining question is whether the
YCJA
, like the
CDSA
, is a
    federal law anchored in s. 91(27) of the
Constitution Act
,
1867
.
    This question has been definitively answered in the affirmative: see
Reference
    re Young Offenders Act (P.E.I.)
, [1991] 1 S.C.R. 252, at pp. 261-62. This
    general answer applies to the records provisions of the
YCJA
: see
L.(S.)
    v. B.(N.)
(2005)
,
196 O.A.C. 320, at para. 60. It follows that
    provincial legislation such as s. 40(1) of the
CJA
cannot create an
    appeal right from an order made under the
YCJA
.

(2)

Another appeal or review route?

[20]

As
    discussed above, s. 40(1) of the
CJA
does not provide for an appeal
    from the decision of a youth court judge relating to the records provisions of
    the
YCJA
. Nor is there any provision in the
YCJA
authorizing such
    an appeal. Is there any other avenue to review the decision?

[21]

The
    appellant and respondent jointly submit that there is a route to review a
    decision of a youth court judge relating to the records provisions of the
YCJA
.
    The route is an application for
certiorari
brought under Part XXVI of
    the
Criminal Code
before a judge of the Superior Court of Justice.

[22]

I
    agree with this submission. The
certiorari
route was confirmed in
Parker
,
    at paras. 20-22. In my view, what this court said about
certiorari
as an
    available review route in proceedings under the
CDSA
applies equally
    to this proceeding under the
YCJA
.

[23]

Section
    784 of the
Criminal Code
provides a right to appeal a decision
    granting or refusing
certiorari
to the Court of Appeal.

(3)

Should this court decide the appeal?

[24]

In
Parker
this court, having determined that the proper route to review the
    Ontario Court of Justice judges decision was a
certiorari
application
    to a Superior Court judge, went on to hear and determine the appeal from the
    Superior Court judges decision on the merits. In doing so, the court said, at
    para. 22:

There is little, if any, disadvantage to a party seeking to
    review a [
CDSA
] s. 24 order having to apply for
certiorari
rather than proceeding by way of appeal. In this province, the reviewing court
    is the same, the Superior Court of Justice. The grounds of review are also the
    same and, one advantage to a party is that an appeal lies to this court as of
    right.

[25]

There
    is no doubt that this court has the jurisdiction to treat the appeal decision
    as a decision made on an application for
certiorari
, and to determine
    the appeal on the merits, as it did in
Parker
. However, after anxious
    consideration, I am of the view that the court should decline to do so. The
    issues and surrounding circumstances in this case strike me as sufficiently
    different from those in
Parker
to justify a more cautious result. In
    articulating the reasons for caution in this case, I can do no better than set
    out the argument on this point made by the intervener Independent Police Review
    Director in its supplementary factum:

While the Director agrees that this appeal is similar in many
    ways to the
Parker
decision, there is one notable and significant
    difference: in
Parker
, the judge in the first instance declined to
    order the return of the marijuana pursuant to the CDSA. On appeal, the Superior
    Court Justice
upheld
the decision of the judge in the first instance,
i.e.
,
    the Superior Court Justice did not find error in the decision of the lower
    court and did not make an order for return of the marijuana seized. The Court
    of Appeal agreed.

In contrast, in the present case, Justice Morgan did
not
uphold the order of Justice Cohen but rather quashed it and ordered production
    of youth records. Had the appeal been brought properly as an application for
certiorari
,
    Justice Morgan could only have quashed Justice Cohens decision and ordered
    access to the records if he found that she had exceeded her jurisdiction in
    denying access, or if her reasons had disclosed an error of law on the face of
    the record. As his reasons considered neither of these two bases, it is
    respectfully submitted that this Honourable Court cannot now properly review
    his decision to determine if he erred in law.

In fact, the Director submits that if this Honourable Court did
    wish to properly consider and determine whether access to L.D.s youth records
    ought to have been granted, this Honourable Court would have to review not
    Justice Morgans decision but rather that of Justice Cohen, to determine if she
    exceeded her jurisdiction or made an error of law on the face of the record. It
    is respectfully submitted that this would be an impossible task on the
    materials presently before the Court, as the written and oral submissions of
    all parties have focused almost exclusively on Justice Morgans decision, not
    that of Justice Cohen. [Emphasis in original.]

[26]

I
    agree with this analysis. The combination of the different results in the two
    courts below, the robust review applied by the appeal judge in overturning the
    decision of the youth court judge (a review that, arguably, went beyond the
    jurisdiction and error of law on the face of the record construct of a
certiorari
review), and the fact that the facta and oral submissions of the parties and
    interveners focussed predominantly on the appeal judges reasons rather than
    those of the youth court judge, means that this court is not well-placed, at
    this juncture, to determine this appeal.

E.

disposition

[27]

Having
    declined to determine this appeal due to the erroneous manner in which the
    appeal proceeded before the Superior Court of Justice, this court cannot allow
    the Superior Court decision to stand. The decision of the appeal judge is set
    aside.  I leave it to the parties to determine what steps, if any, to take in
    light of these reasons.

Released: KNF JAN 12 2018

J.C. MacPherson
    J.A.

I agree. K. Feldman
    J.A.

I agree. Grant
    Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Toronto-Dominion Bank v. Froom, 2018 ONCA 15

DATE: 20180111

DOCKET: C63040

Simmons, Lauwers and Pardu JJ.A.

BETWEEN

The Toronto-Dominion Bank

Plaintiff (Respondent)

and

Arthur Scott L. Froom

Defendant (Appellant)

Arthur Froom, in person by videoconference

Todd J. Burke, for the respondent

Heard: December 15, 2017

On appeal from the order of Justice Mary E. Vallee of the
    Superior Court of Justice, dated March 29, 2016 and from the associated costs
    award dated June 3, 2016, and from the order of Justice M.L. Edwards of the
    Superior Court of Justice, dated December 6, 2016.

COSTS ENDORSEMENT

[1]

We award costs of the appeal to the Toronto-Dominion Bank on a partial
    indemnity scale fixed in the amount of $8,773.39 inclusive of disbursements and
    applicable taxes.

Janet Simmons J.A.

P. Lauwers J.A.

G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Trade Capital Finance Corp. v. Cook, 2018 ONCA 27

DATE: 20180116

DOCKET: C63884

Feldman, Pepall and Huscroft JJ.A.

BETWEEN

Trade Capital Finance Corp.

Plaintiff

(Appellant)

and

Peter Cook also known as
    Peter William Cook, Marc DAoust also known as Jean Marc DAoust, Thomas Barker
    also known as Thomas Richard Barker (personally and carrying on business as LC Exchange,
    Global Medical and Greenlink Canada Group), Rocky Racca, Bruno Didiomede also
    known as Bruno Diaiomede, Alan Keery also known as Alan John Keery, Chris
    Bennett Jr. also known as Chris Bennett also known as Christopher Bennett (personally
    and carrying on business as CJR Consulting), Todd Cadenhead, Dayawansa
    Wickramasinghe, Bonny Lokuge also known as Don Bonny Lokuge, Virtucall Inc.,
    Virtucall International Llc, Debt Resolve Mortgage Funding Solutions Inc. carrying
    on business as Debtresolve Inc., The Cash House Inc., 1160376 Ontario Limited operating
    as The Cash House, 2242116 Ontario Inc. carrying on business as Superior
    Medical Services Inc. and Superior Medical Services, Carlo De Maria also known
    as Carlo Vince De Maria also known as Carlo Vincent De Maria also known as Carlo
    Vincenzo De Maria, Matteo Pennacchio, Frank Zito also known as Francesco Zito,
    Simone Sladkowski, Jobec Trade Finance Inc., 1461350 Ontario Inc., 2299430 Ontario
    Inc., WF Canada Ltd., Jobec Investments RT Ltd., Green Link Canada Inc.,
    2339989 Ontario Inc., 2252364 Ontario Inc., 2224754 Ontario Ltd., 6980023 Canada
    Inc. operating as Living Benefits and Millwalk Enterprises Inc.,
Oak Hills
    Water Durham Inc., Joshua Cook, Elizabeth Cook, Rebecca Cook, Mark Pintucci,
    Marco Santonato also known as Marc Santonato and New Era Resolutions &
    Consulting Inc.

Defendants

Peter Carey, for the appellant

Brendan Wong, for the respondents

Heard and released orally: January 10, 2018

On appeal from the order of Justice Michael Emery of the Superior
    Court of Justice, dated May 8, 2017.

REASONS FOR DECISION

[1]

The appellants position is that the motion judge erred in varying the
    Mareva injunction that had been granted to Trade Capital against Cash House to
    allow Maple Trust to seize the funds in account number 0066701 (701)in the
    name of Cash House, under a properly issued writ of seizure and sale in the
    amount of $120,396.90 plus post-judgment interest.

[2]

In oral argument the appellant asserted that the real issue before the
    motion judge and on appeal was whether Maple Trust should be entitled to
    execute against funds in the 701 account of Cash House when those funds may be
    shown at some point to be funds stolen from Trade Capital, which therefore
    never belonged to Cash House. He asserted that a temporary stay should have
    been granted to allow Trade Capital to continue to try to trace its stolen
    funds into Cash Houses 701 account.

[3]

We are not able to accede to this submission. Even if the appellant
    could demonstrate that there was a serious issue to be tried within a
    reasonable amount of time regarding the tracing issue, in our view the balance
    of convenience favours the respondent, Maple Trust. It has acted in good faith
    in obtaining its judgment against Cash House and pursuing execution. It filed
    its writ on October 29, 2015. If it had to wait for an indefinite period of
    time while the appellant pursued its tracing remedy, the value of its judgment
    could be subject to significant dilution, for example, if other judgment
    creditors were to emerge.

[4]

As the motion judge found, the appellants Mareva injunction gives it no
    proprietary interest in the funds in 701. It has been unable to date to prove
    or establish its claim in respect to account number 701. There is no basis for
    the third party, Maple Trust, to suffer prejudice as a result.

[5]

The appeal is therefore dismissed, with costs to the respondent fixed in
    the amount of $15,000, inclusive of disbursements and HST.

K.
    Feldman J.A.

S.E.
    Pepall J.A.

Grant
    Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Trade Finance Solutions Inc. v. Equinox Global
    Limited, 2018 ONCA 12

DATE: 20180111

DOCKET: C63243

Doherty, LaForme, and Miller JJ.A.

BETWEEN

Trade Finance Solutions Inc.

Plaintiff (Respondent)

and

Equinox Global Limited and Lloyds Underwriters

Defendants (Appellants)

Ryan Morris and John Mather for the appellants

Alan DSilva and Mark Walli for the respondent

Heard: September 22, 2017

On appeal from the order of Justice Grant R. Dow of the
    Superior Court of Justice, dated 30 December, 2016.

CIVIL - Contractual interpretation  insurance policy
     arbitration clause  legal test for stay in favour of arbitration
    International Commercial Arbitration Act

LaForme J.A.:

OVERVIEW

[1]

This appeal involves the proper effect to be given to an international
    insurance agreement that contains both an arbitration provision and an Action
    Against Insurer clause. It considers whether an Ontario action brought by an
    insured for breach of that agreement must be stayed and referred to
    arbitration.

[2]

In the circumstances of this case, I agree with the appellants, Equinox
    Global Limited and Lloyds Underwriters (the Insurers) that the action
    against them must be stayed and referred to arbitration in London, England.
    There are two reasons for this.

[3]

First, when the insurance policy is interpreted objectively, in a manner
    that gives meaning to all of its terms, mandatory arbitration in London,
    England was agreed to by the parties as the sole method of dispute resolution.

[4]

Second, Ontario has chosen to adopt the
UNCITRAL Model Law on
    International Commercial Arbitration
(the Model Law).
[1]
That law requires a court before which an action is brought in a matter that is
    the subject of an arbitration agreement to refer the parties to arbitration if
    it is arguable that: (i) the arbitration agreement is binding on the parties;
    and (ii) the claims at issue fall within the scope of the agreement. I conclude
    that this law applies.

[5]

I would allow the appeal and stay the within action, referring the
    parties to arbitration in London, England.

BACKGROUND

[6]

The respondent, Trade Finance Solutions Inc. (TFS) is an Ontario company
    having its head office in Ontario. It is in the business of providing short
    term financing and trade credit to small and medium size businesses. For a fee,
    it will immediately advance funds to the contracting business in return for that
    business assigning its receivables to TFS which gets paid over time (referred
    to as factoring). While TFS is based in Toronto, it does business globally.
    Much of its business appears to occur in North America, primarily in Canada and
    in Florida.

[7]

Because not all invoices get paid, or problems arise in payment, TFS
    obtains trade credit insurance on its factored accounts, which is available
    from Equinox Global Limited. Equinox is headquartered in London, England.

[8]

TFS retained an insurance broker in Ontario, as well as in England, to
    assist in securing an insurance policy to provide the required coverage. Equinox
    was approached and asked to provide insurance on an expedited timeline: TFSs
    existing trade credit policy was set to terminate in approximately 26 days.

[9]

Most of the negotiation between TFS, its agents, and Equinox took place
    by email communication, and concerned a document entitled Schedule, which
    sets out terms specific to the policy, including the effective date, identity
    of insured, policy limits, and premium. It also included certain endorsements
    dealing with a number of related topics. There was also a standard form excess
    of loss insurance contract (the base policy) containing terms about TFSs
    and Equinoxs mutual responsibilities under the insurance contract. This base
    policy was incorporated into the Schedule by reference, and conveyed to TFS and
    its brokers early on in the process.

[10]

A
    contract of insurance was subsequently issued with Equinox and Lloyds
    Underwriters. Equinox signed and stamped the Schedule, and TFS agree to bind
    the policy, subject to certain amendments which were ultimately made.

[11]

Clause
    8(j) of the base policy contains the following arbitration provision:

This policy shall be governed by the laws of England and
    Wales. Any dispute arising in connection with this contract, including any
    question regarding its existence, validity or termination, shall be referred to
    and finally resolved by arbitration under the LCIA Rules,
[2]
which Rules are deemed to be incorporated by reference into this clause. The
    number of arbitrators shall be three. The seat, or legal place of, the
    arbitration, shall be London. The language used in the arbitral proceedings
    shall be English. [Footnote added.]

[12]

The
    following are some of the more relevant endorsements and declarations:

·

An "insuring in Canada a risk" endorsement providing
    that the policy was issued in the course of Lloyd's business in Canada;

·

A complaint protocol endorsement providing TFS with rights to
    lodge complaints with Lloyd's in Montreal and with various Ontario and federal
    regulatory agencies;

·

A consumer rights endorsement providing that TFS's rights were
    grounded in the insurance contract and the laws of its province (Ontario); and

·

An "Action Against Insurer" provision in the
    declarations providing that, [i]n any action to enforce the obligations of the
    Underwriters they can be designated or named as Lloyds Underwriters and that
    the [s]ervice of such proceedings may validly be made upon the Attorney In Fact
    in Canada for Lloyds Underwriters in Montreal.

[13]

All
    of the endorsements state that they prevail over any conflicting wording in the
    underlying policy. On its face, there is said to be a conflict between the
    arbitration clause in the base policy and the Action Against Insurer
    endorsement.

[14]

Ultimately,
    TFS made several claims for loss under the policy. In response, the Insurers identified
    a number of concerns related to the claim, and made requests for further
    information relating to them. TFS viewed the response by the Insurers as an
    attempt to frustrate the claims process.

[15]

TFS
    commenced an action against the Insurers in Ontario for losses under the
    insurance contract. Its statement of claim alleges breach of contract, unjust
    enrichment, and punitive damages. In response, the Insurers asserted that any
    dispute relating to the insurance contract had to be submitted to arbitration
    under the LCIA rules, in accordance with clause 8(j). Accordingly, the Insurers
    brought a motion to stay, which was dismissed below and is the subject of this
    appeal.

THE MOTION JUDGES DECISION

[16]

The
    motion judge refused to stay TFSs action. In his view, both the arbitration
    clause and the Action Against Insurer clause provided for alternative,
    optional methods of dispute resolution. He was not prepared to agree with TFSs
    submission that the Action Against Insurer clause effectively excluded the
    arbitration clause as part of the contract. Neither did he accept the Insurers
    argument that the Action Against Insurer endorsement clause was a mere service
    of suit clause, in that it simply designated the party who would accept
    "service of process" on behalf of the insurer. He held that the words
    were wider than that purpose, and that the parties could easily have inserted
    wording making any such intent clear, as had occurred in
Oppenheim v.
    Midnight Marine Limited,
2010 NLCA 64, 325 D.L.R. (4th) 254.

[17]

The
    motion judge also rejected the Insurers argument that art. 8 of the Model Law contained
    the appropriate test for granting a stay. Reading the contract as a whole, he
    said, provided two alternative methods of dispute resolution: (i) international
    arbitration pursuant to clause 8(j) of the base policy, and (ii) domestic
    proceedings pursuant to the Action Against Insurer endorsement. Given this, he
    concluded the Model Law did not apply because its application was limited to
    situations where the parties have agreed to arbitration as the sole method of
    dispute resolution.

[18]

The
    motion judges conclusion on the application of the Model Law was, he said,
    supported by s. 123 of Ontarios
Insurance Act
, R.S.O. 1990, c. I.8,
    which provides that insurance delivered to an insured person resident in
    Ontario is deemed to be a contract made in Ontario. Therefore, the insurance
    contract, being an Ontario contract, required the inclusion of the Insuring in
    Canada a risk endorsement, which in turn provided that the endorsement would
    prevail in the face of a conflict between it and the base policy.

[19]

In
    the motion judges opinion, although the parties had agreed to an arbitration
    clause in the base policy, they had also agreed to Canadianize the insurance
    contract by allowing domestic actions against the insurer under the Action
    Against Insurer provision. To prevent clause 8(j) from being rendered
    ineffective, he further held that the arbitration clauses use of the word
    shall, should be changed to may.

THE ISSUES

[20]

The Insurers submit that the motion judge in this case committed
    two errors of law, namely
:

I.        He
    did not apply the correct principles of contractual interpretation so as to
    give meaning to all of the insurance policys terms. Instead, he altered the
    wording of the policy to provide for a dual-track dispute resolution process
    contrary to the objective terms of the agreement.

II.       He
    did not apply the correct legal test for a stay under the
International
    Commercial Arbitration Act,
R.S.O. 1990 c. I.9 (the
ICAA
) and
    the Model Law. That Act and the jurisprudence interpreting it provides that a
    stay should be granted if it is arguable that a dispute falls within the
    terms of an arbitration agreement.

[21]

The
    Insurers submit that should this court find the motion judge to have committed
    one of the errors alleged, this court should stay the action and refer the
    parties to arbitration in England.

ANALYSIS

[22]

The
    Insurers argue that the existence of an arbitration clause in the contract
    demands that questions about the proper forum for dispute resolution, as well
    as the underlying dispute, ought to be determined by the arbitrator, pursuant
    to the competence-competence principle.

[23]

Generally
    speaking, the approach in Ontario is that in cases where the "existence or
    validity of the arbitration agreement" is not clear (i.e. the agreement is
    arguably, but not clearly: (a) null and void; (b) inoperative; or (c) incapable
    of being performed) it is preferable for the arbitrator to decide the issue:
Dalimpex
    Ltd. v. Janicki
, (2003), 64 O.R. (3d) 737 (Ont. C.A.), at paras. 21-22. Thus,
    it would seem that an answer to issue two could be dispositive of this appeal.

[24]

On
    my reading of the decision below, the motion judge held that the arbitration
    provision was clearly inoperative in the circumstances, because the contract
    contemplated both arbitration in England and a civil action in Ontario as
    optional methods of dispute resolution. TFS having chosen to commence an action
    in Ontario, it could not be said that the dispute was subject to the
    arbitration clause, or that the arbitration clause was operative in the
    circumstances. The motion judges modification of the arbitration provisions
    language re-enforced this conclusion.

[25]

In
    order to review this decision, it is necessary to re-visit the interpretation
    of the insurance contract. This is because if the motion judges interpretation
    of the contract is correct, then the parties did not agree to submit the
    dispute in question to mandatory arbitration, and it is possible that a stay of
    proceedings is inappropriate in the circumstances.

[26]

I
    note that Lauwers J.A., in the recent case of
Haas v. Gunasekaram,
2016
    ONCA 744, 62 B.L.R. (5th) 1 at para. 17, created an analytical framework
[3]
applicable to motions to stay proceedings under the
Arbitration Act, 1991,
S.O.
    1991, c. 17, which may also be applicable to such motions under the
ICAA.
But I need not adopt this framework in this case. Its application was not
    argued, and this appeal effectively turns on a single issue: whether there was
    arguably an operative arbitration agreement in the contract.

[27]

It
    appears to me that none of the parties to this dispute take any serious issue
    with this approach. Consequently, I intend to decide the two issues as proposed
    by the Insurers, responded to by TFS, and as decided by the motion judge.

(1)

The Standard of Review

[28]

The
    standard of review for the issues involved in the interpretation of the
    insurance policy in this case is, in my view, correctness.

[29]

The
    motion judge committed an extricable error of law in his interpretation of the
    policy. Specifically, notwithstanding rehearsing the well-established principle
    of contractual interpretation that courts must, if possible, adopt an
    interpretation that renders each of its terms effective, he failed to actually
    apply that principle. As a result, a correctness standard applies:
Sattva
    Capital Corp. v. Creston Moly Corp.
, 2014 SCC 53, [2014] 2 S.C.R. 633, at
    para. 53;
Deslaurier Custom Cabinets Inc. v. 1728106 Ontario Inc.,
2017
    ONCA 293, 135 O.R. (3d) 241 at paras. 71-76, leave to appeal refd 2017
    CarswellOnt 16214, 2017 CarswellOnt 16215.

[30]

Also,
    the motion judges interpretation of the Action Against Insurer Clause
    conflicts with other decisions in Canada and elsewhere, creating uncertainty in
    the law about how similarly worded insurance policies ought to be interpreted.
    The provisions at issue in this case seem to appear frequently in cases
    involving U.K.-based insurers.
[4]
In my view, this case raises an issue that will have an impact beyond the
    parties to the dispute. This court, therefore, should review the decision on a
    standard of correctness to address the uncertainty it has created in the law:
Ledcor
    Construction Ltd. v. Northbridge Indemnity Insurance Co.
, 2016 SCC 37,
    [2016] 2 S.C.R. 23, at para. 46, and
Biancaniello v. DMCT LLP,
2017
    ONCA 386, 411 D.L.R. (4th) 367, at paras. 20-22.

[31]

The
    standard of review applicable to the motion judges interpretation of the Model
    Law and
ICAA
, as an issue of law,

is also correctness:
Canadian
    National Railway Co. v. Canada (Attorney General),
2014 SCC 40, [2014] 2
    S.C.R. 135, at para. 33.

(2)

Did the Motion Judge Correctly Interpret the Contract?

[32]

On
    the motion, TFS argued that the arbitration clause in the base policy was
    rendered inoperative by the endorsements and declarations. The motion judge
    essentially agreed and held that, while there was an agreement to an arbitration
    clause in the base policy, there was also agreement to allow domestic actions
    against the insurer under the Action Against Insurer endorsement.

[33]

In
    reaching his decision, the motion judge gave two reasons: (i) the Action
    Against Insurer endorsement was not limited to a mere service of suit clause;
    and (ii) part of the Canadianization of the policy was to allow actions against
    the insurer to enforce the obligations of the Underwriters. I disagree.

[34]

The
    general principles of contractual interpretation are straightforward: the
    court construes the contract as a whole, in a manner that gives meaning to all
    of its terms, and avoids an interpretation that would render one or more of its
    terms ineffective:
Salah v. Timothy's Coffees of the World Inc.,
2010
    ONCA 673, 74 B.L.R. (4th) 161, at para. 16. The motion judge, at para. 8,
    expressed an appreciation of these principles and said he was proceeding with
    his analysis accordingly.

[35]

With
    respect, although the motion judge expressed the correct legal principles, he
    was in error when he interpreted the Action Against Insurer endorsement clause
    as an alternative dispute resolution provision. It was unnecessary and an error
    for him to widen the meaning to the Action Against Insurer endorsement clause
    and turn it into an alternative dispute resolution provision in order to give
    it effect. This is because the plain language of the clause can be given
    meaningful effect without conflicting with the mandatory language of the
    arbitration clause, thereby giving effect to all of the terms of the insurance
    policy.

[36]

I
    conclude that the Action Against Insurer endorsement does not clearly provide
    for an alternative right of the insured to commence a domestic action against
    the Insurers. As I will explain, it is arguably a service of suit clause, which
    I will define in more detail below. As a result, it cannot be said that the
    arbitration provision was clearly inoperative on the facts of this case.

[37]

The
    Action Against Insurer clause in this case provides as follows:

In any action to enforce the obligations of the Underwriters
    they can be designated or named as "Lloyd's Underwriters" and such
    designation shall be binding on the Underwriters as if they had each been individually
    named as defendant. Service of such proceedings may validly be made upon the
    Attorney In Fact in Canada for Lloyd's Underwriters, whose address for such
    service is 1155 rue Metcalfe, Suite 2220, Montreal, Quebec H3B 2V6.

[38]

The
    motion judge rejected the Insurers argument that the Action Against Insurer
    provision can be interpreted as referring to service of actions to compel
    arbitration or enforce an arbitral award. TFS argues that this suggested
    interpretation would render the plain language of this clause completely
    ineffective, as the motion judge found at para. 13. As already noted, I do not
    accept the submission of TFS.

[39]

The Insurers contend that the
Action Against
    Insurer clause
is actually a service of suit
    clause. That is, the clause simply defines the circumstances under which the
    insurer will accept service of a suit, if that insurer is out of the
    jurisdiction or constitutes a syndicate of many individual insurers. I agree
    with the Insurers.
[5]

[40]

The
    word action and the word defendant, when they appear in a clause about the
    identification and service of underwriters in the context of claims for
    breaches of the obligations under the insurance agreement, do not necessarily
    refer to a civil action, or to a defendant in a civil action. They can easily be
    read as referring to any proceeding in which a claim is made against the
    underwriters. An arbitration is a proceeding in which a claim is advanced
    against the underwriters. The reference to the underwriters as defendant is a
    description of their role in the proceeding.

[41]

Indeed,
    even if action and defendant do refer to a civil action, the Action Against
    Insurer endorsement does not conflict with the mandatory arbitration clause.
    Notwithstanding the latters operation, there are still civil actions available
    to TFS: actions to determine jurisdiction or compel arbitration, actions to
    enforce arbitral awards, and appeals of arbitral awards are all examples of
    such actions.

[42]

Further
    supporting this conclusion is the fact that the Action Against Insurer clause
    says nothing about where or how claims to enforce obligations under the
    agreements are to be determined. As pointed out in oral argument, the provision
    does not even deal with all of the potential defendants to an enforcement claim
    (i.e. Equinox). The plain wording of the endorsement does not need to be
    widened into an alternative dispute resolution process in order for it to
    have meaning and be effective.

[43]

TFS
    argues that it insisted that Equinox Canadianize the policy (i.e. issue the
    policy in Ontario and ensure compliance with Canadian insurance regulations),
    intending and believing that doing so would permit it to sue in court. But
    contractual interpretation does not turn on these types of subjective
    expectations:
Salah,
at para. 16. TFS admits that neither party
    specifically raised the issue of how, when, or where dispute resolution would
    take place. The plain wording of the insurance contract is clear and
    unambiguous.

[44]

Similar
    clauses were at issue in
Ace Capital Ltd. v. CMS Energy Corp.,
[2008] E.W.H.C.
    1843 (Comm.), 2 C.L.C. 318 and
Midnight Marine
. In both cases the
    court held that the Action Against Insurer clause and a mandatory arbitration
    clause did not conflict and that both clauses could be given meaningful effect
    without nullifying or otherwise modifying the arbitration clause.

[45]

In
Ace Capital
, there was no conflict because even if the mandatory arbitration
    clause was given full effect, there were certain civil actions which could
    still be brought. This could include: to compel arbitration, to declare the
    validity of an award, to enforce an award, or to confirm the jurisdiction of US
    courts on the merits in the event that the parties agree to dispense with
    arbitration. The Action Against Insurer clause would apply to those civil
    proceedings. That court premised its decision, in part, upon the principle that
    [a] clause should not be rejected unless manifestly inconsistent with or
    repugnant to the rest of the agreement. (at para. 70).

[46]

In
Midnight Marine
the relevant clause in
    the insurance policy under consideration was headed,
Service of Suit
    Clause (Canada)  (Action against Insurer). The clause itself was materially
    identical to that in this case.
Relying on
Ace
    Capital
,
Barry J.A. concluded that
    the mandatory arbitration clause and the service of suit provisions did not
    conflict. At para. 56, he held that the service of suit (Action against
    Insurer) clause could be given meaningful effect without nullifying or
    otherwise modifying the arbitration clause:

A meaningful scope may be given to the Service of Suit Clause,
    without concluding it nullifies the exclusive (in the first instance)
    jurisdiction of English arbitrators and courts provided for by Clause
    I. The Service of Suit Clause may still be applied to actions seeking to
    declare the arbitrable nature of a dispute, to compel arbitration, to declare
    the validity of an award, or to enforce an award.

[47]

In
    our case  just as it was in
Ace Capital
and
Midnight Marine
 after interpreting the insurance contract as a whole, it is possible to give
    meaningful effect to both the mandatory arbitration clause and the Action
    Against Insurer clause. Interpreting it this way gives meaning to all of its
    terms, and avoids an interpretation that would render the mandatory arbitration
    clause merely optional and thus ineffective. In contrast, the motion judges
    interpretation required the modification of the wording of the arbitration
    clause, which was accomplished by changing the word shall to may.

[48]

In
    sum, the arbitration provision was at least arguably operative in the
    circumstances. The motion judge failed to give effect to the mandatory language
    of the arbitration clause that provides that any dispute under the policy
    shall be referred to and finally resolved by arbitration. In finding that the
    Action Against Insurer clause allowed TFS to also commence court proceedings in
    Ontario, the motion judge erroneously nullified this mandatory language. He was
    in error in doing so.

[49]

For
    these reasons, I would allow this ground of appeal.

(3)

Did the Motion Judge Correctly Consider the ICAA and the Model Law?

[50]

For
    context, it should be kept in mind that alternative dispute resolution
    mechanisms, including arbitration, are among the means the international
    community has adopted to increase efficiency in economic relationships:
Dell
    Computer Corp. v. Union des consommateurs
, 2007 SCC 34, [2007] 2 S.C.R.
    801, at para. 1. And, unless there is legislative intervention, the courts will
    generally give effect to the terms of a commercial contract freely entered
    into, including an arbitration clause:
Seidel v. TELUS Communications Inc
.,
2011 SCC 15, [2011] 1
    S.C.R. 531, at para. 2
. It is a well-settled policy in Canada to
    enforce arbitration agreements and forum selection clauses.

[51]

On
    the motion, the Insurers argued that the
ICAA
mandates that the Model
    Law governs this dispute. As already noted, the motion judge rejected the
    application of the Model Law saying, at para. 11:

In my view, this is for situations where the parties to the
    agreement have agreed to arbitration as the sole method of proceeding and not
    where the parties have also agreed or contemplated an alternative, being an
    action to enforce the obligations of the Underwriters.

[52]

In
    the motion judges opinion, the contract read as a whole provides for
    alternative methods of proceeding, that is by arbitration pursuant to Clause 8j)
    and by an action under the Declarations endorsement which clearly states and
    contemplates an action to enforce the obligations of the Underwriters.

[53]

I
    have already concluded that the insurance policy did in fact provide for
    mandatory arbitration as the sole method of resolving disputes under the
    policy. It might seem, therefore, that such a conclusion resolves this appeal
    without the need to address this issue. However, given its importance to
    international commercial agreements, I believe it is helpful to clarify the law
    in this regard.

[54]

In
    my view, to the extent that the motion judge held that arbitration must be the
sole
    method
of dispute resolution agreed to between the parties in order to
    attract the operation of the Model Law, doing so was wrong in law. Simply
    stated, the Model Law is not restricted in its application to international
    commercial agreements that provide for arbitration as the sole method of
    dispute resolution. While I agree that a purely
optional
arbitration
    provision does not necessarily attract the application of art. 8 of the Model
    Law, an agreement by the parties to submit
certain,
but not all
    disputes in a contract to arbitration does attract its application. This conclusion
    is supported by the jurisprudence and consistent with a plain reading of the
ICAA
and the Model Law.

[55]

First,
    the Model Law specifically contemplates arbitration agreements whereby parties
    only agree to submit
certain
disputes to arbitration. It defines
    arbitration agreement as

an agreement by the parties to
    submit to arbitration all or certain disputes which have arisen or which may
    arise between them in respect of a defined legal relationship, whether
    contractual or not. An arbitration agreement may be in the form of an
    arbitration clause in a contract or in the form of a separate agreement.

Implicit in this definition is the notion that certain
    disputes under the contract may be resolvable by methods other than
    arbitration, like civil action or mediation.

[56]

Second,
    there are cases from this province applying the Model Law to contractual
    arbitration clauses contemplating the submission of a circumscribed set of
    disputes under a contract to arbitration:
Jean Estate v. Wires Jolley LLP,
2009
    ONCA 339, 96 O.R. (3d) 171, per Juriansz J.A. writing in concurrence, and
1338121
    Ontario Inc. v. FDV Inc.,
2011 ONSC 3816, 92 B.L.R. (4th) 1.

[57]

Third,
    the Model Law may apply to an arbitration agreement even if the right of
    arbitration is merely optional. If the parties agree that arbitration is an
    optional method of dispute resolution, and one of the parties chooses to
    commence arbitration, there is no reason why art. 8 of the Model Law should not
    apply to stay any duplicative court actions in Ontario. Since, after electing
    to commence an arbitration, the parties agreed to respect that choice, and at
    that point it may be said that the parties have agreed to submit the dispute to
    arbitration.

(4)

The Remaining Issues

[58]

On
    the motion and again on appeal, TFS asserted that the arbitration agreement
    should not be enforced because it is clearly null and void. It is null and void,
    it says, because s. 124(1) of the
Insurance Act
, R.S.O. 1990, c. I.8
    states that no term of an insurance contract is valid or admissible in evidence
    to the prejudice of the insured unless it is set out in full in the policy or
    by writing securely attached to it when issued. TFS argues that when Equinox
    emailed them the final set of signed policy documents to issue the contract,
    the email only contained the Schedule, and not the base policy.

[59]

In
Sams Auto Wrecking Co. v. Lombard General Insurance Co. of Canada,
2013
    ONCA 186, 114 O.R. (3d) 730 the parties had amended their insurance contract by
    issuing an endorsement that referred to policy wording located in documents
    possessed by the insured and its broker. Laskin J.A. held that the amendment
    was valid and complied with s. 124(1) of the Act. Similarly, in this case, the
    base policy was in the possession of TFS and its brokers on the date they
    agreed to bind the contract. Accordingly, in my view, the arbitration clause is
    not clearly void and this issue should be left to the arbitrator:
Dalimpex,
at paras. 21-22.

[60]

Finally,
    TFS argues that s. 123 of the
Insurance Act,
R.S.O. 1990, c. I.8
    mandates that Ontario law apply to contracts of insurance made in Ontario. In its
    view, this statutory provision conflicts with clause 8(j) in that the latter
    purports to make the contract subject to the laws of England and Wales. The
    question of whether the arbitration agreement controls the determination of the
    proper forum to resolve the dispute is distinct from the question of what law
    should be applied in determining the dispute. Given my decision that the
    arbitration provision applies, it will be for the arbitration panel to
    determine the appropriate law to apply.

DISPOSITION

[61]

For
    the reasons given, I would allow the appeal and stay the action, referring the
    parties to arbitration before three arbitrators seated in London, England
    pursuant to the terms of the insurance contract.

[62]

Pursuant
    to the parties agreement I would award the Insurers their costs of this appeal
    in the amount of $25,000 inclusive of disbursements and HST. Further, I would
    award the Insurers their costs of the motion below, which is to be the same
    amount awarded to TFS by the motion judge.

Released: DD JAN 11 2018

H.S. LaForme J.A.

I agree. Doherty
    J.A.

I agree. B.W. Miller
    J.A.

[1]
The Model Law was adopted in the
International Commercial Arbitration Act,
R.S.O.
    1990, c I.9, and subsequently the
International Commercial Arbitration Act,
    2017,
S.O. 2017, c 2, Sch. 5.

[2]
The LCIA (the London Court of International Arbitration) is an institution
    based in London, England that provides international arbitration services
    pursuant to its own rules and procedures, which it promulgates.

[3]

Justice Lauwers suggested that judges take the following approach
    when considering a stay under the
Arbitration Act
:

(1) Is there an arbitration
    agreement?

(2) What is the subject matter of
    the dispute?

(3) What is the scope of the
    arbitration agreement?

(4) Does the dispute arguably fall
    within the scope of the arbitration agreement?

(5) Are there grounds on which the
    court should refuse to stay the action?

[4]

See, for example,
Ace Capital Ltd. v. CMS Energy
    Corp.,
[2008] E.W.H.C. 1843 (Comm.), 2 C.L.C. 318 and
Oppenheim v.
    Midnight Marine Limited
, 2010 NLCA 64, 325 D.L.R. (4th) 254.

[5]

I note that modern iterations of service of suit clauses
    take many forms. Some broader examples of these clauses are akin to choice of
    law and jurisdiction clauses (see, for example,
Dinallo v. Dunav Insurance Co.
, 672 F. Supp. 2d 368, 370 (S.D.N.Y. 2009) and Masters, L. et al.,
Insurance Coverage Litigation
, loose-leaf, 2d. ed., (Aspen Publishers, 1999), ss. 6.03[B] at
    6-25) while narrower examples of these clauses, like the one in this case,
    simply define the circumstances under which an insurer will accept service of a
    suit.


COURT OF APPEAL FOR ONTARIO

CITATION: Union Gas Limited v. Norwich (Township), 2018 ONCA
    11

DATE: 20180110

DOCKET: C62779

LaForme, Pepall and van Rensburg JJ.A.

BETWEEN

Union Gas Limited

Applicant
(Appellant in Appeal)

and

The Corporation of the Township of Norwich

Respondent
(Respondent in Appeal)

Crawford
    Smith and Emily Sherkey, for the appellant

Roberto Aburto and Jacob Polowin, for the respondent

Philip Tunley, for the intervener, Ontario Energy Board

Heard: August 14, 2017

On appeal from the order of Justice M.A. Garson of the Superior
    Court of Justice, dated September 7, 2016.

van Rensburg J.A.:

OVERVIEW

[1]

This appeal concerns a dispute between a utility
    and a rural municipality over the sharing of the utilitys costs to relocate
    parts of a gas pipeline as a result of the rural municipalitys construction of
    certain drainage works. The disposition of the appeal requires the court to consider
    the terms of a franchise agreement dated September 28, 2004 between the parties
    (the Franchise Agreement) and provisions of the
Drainage Act
, R.S.O. 1990, c. D.17 (the Act).

[2]

Union Gas Limited (Union) asserts that The
    Corporation of the Township of Norwich (Norwich) is required to pay Union 35%
    of its costs to relocate a gas pipeline necessitated by certain drainage works,
    in accordance with the Franchise Agreement. Norwich argues that Union should assume
    the full cost of relocation, as its engineer directed, under s. 26 of the Act.

[3]

The application judge held that the cost to
    relocate gas works when a drain is constructed under the Act is an increase in
    the cost of drainage works, and therefore subject to s. 26 of the Act, which
    provides for the utility to assume the entirety of the increased cost of
    drainage works caused by the existence of the public utilitys works. He held
    that the cost-sharing provisions of the Franchise Agreement did not trump and
    hold priority over s. 26 of the Act.

[4]

Union appeals, arguing that the application
    judge erred: (1) in interpreting s. 26 of the Act to apply to the cost of
    relocating gas works; and (2) in concluding that the Act overrides the
    cost-sharing provisions of the Franchise Agreement.

[5]

The Ontario Energy Board (the OEB) intervened,
    taking no position on the facts of the appeal, but to provide submissions on
    the interpretation of the term drainage works in the Act and the policy
    behind the cost-sharing provisions of the Franchise Agreement.

[6]

For the reasons that follow, I would allow the
    appeal. It is unnecessary to determine in this appeal the full scope of s. 26,
    and in particular whether the reference to the increased cost of drainage
    works could
include a utilitys
cost to relocate gas
    works. The cost-sharing provisions of the Franchise Agreement apply to the
    parties dispute. The application judge erred in law when he refused to give
    effect to the parties agreement on the basis that it could not oust or override
    the provisions of the Act.

FACTS

[7]

Under s. 4 of the Act a landowner may petition a municipality to
    undertake drainage works. Where the municipalitys council decides to proceed
    with the construction of drainage works, it appoints an engineer under s. 8 to
    plan the works, including to assess their cost. The engineer is required to submit
    a report to the municipality. If the council proceeds based on the report, it
    passes a by-law adopting the report and authorizing the drainage works.

[8]

The engineers report is required to assess landowners and utilities for
    benefit, outlet liability, injury liability and special benefits (ss. 21 to
    24). Section 26 allows all of the increase in the cost of drainage works due to
    the presence of public utilities to be assessed by the engineer against those
    utilities. The section provides as follows:

In addition to all other
    sums lawfully assessed against the property of a public utility or road
    authority under this Act, and despite the fact that the public utility or road
    authority is not otherwise assessable under this Act, the public utility or
    road authority shall be assessed for and shall pay all the increase of cost of
    such drainage works caused by the existence of the works of the public utility
    or road authority.

[9]

Section 48(1) provides for a right of appeal by a landowner or public
    utility from an engineers report, to the Agriculture, Food and Rural Affairs
    Appeal Tribunal.

[10]

In April 2012, a landowner petitioned Norwich
    regarding two improvements to the Otter Creek Municipal Drain. Norwichs council
    appointed an engineer. The engineer prepared one report for both projects, and
    assessed Union $1,180 under s. 26 of the Act for costs relating to boring steel
    pipes across the gas main. This assessment was not disputed.

[11]

The report also identified a conflict between a
    Union gas pipeline and the proposed drainage work that would require the gas
    pipeline to be moved. The report stated that if any utilities required
    relocation the extra costs incurred shall be borne by the utility involved in
    accordance with the provisions of section 26 of the [Act]. In February 2014, the
    Norwich council adopted a by-law approving the engineers report.

[12]

Union did not appeal the engineers report.
    Instead, with respect to the gas pipeline that required relocation, it issued
    an invoice to Norwich seeking a 35% contribution, relying on a cost-sharing
    mechanism in the Franchise Agreement.

[13]

The Franchise Agreement is based on a model
    franchise agreement, whose terms were approved by the OEB in accordance with
    the
Municipal Franchise Act
, R.S.O. 1990, c.
    M.55
.
The Franchise
    Agreement allows Union to operate its gas infrastructure within Norwichs
    territorial boundaries.

[14]

Section 12 of the Franchise Agreement permits
    Norwich to request Union to relocate any part of the gas system where such
    relocation is necessary to alter or improve any highway or municipal work, and
    provides for cost-sharing. The applicable paragraphs are as follows:

(a) If in the course of constructing,
    reconstructing, changing, altering or improving any highway or any municipal
    works, [Norwich] deems that it is necessary to take up, remove or change the
    location of any part of the gas system, [Union] shall, upon notice to do so,
    remove and/or relocate within a reasonable period of time such part of the gas
    system to a location approved by the Engineer/Road Superintendent.

(d) The total relocation costs as calculated
    above [described in detail in paragraph (c)] shall be paid 35% by [Norwich] and
    65% by [Union] except [an exception follows that does not apply here.]

[15]

Section 13 of the Franchise Agreement provides:

The Agreement is subject to the provisions of
    all regulating statutes and all municipal by-laws of general application,
    except by-laws which have the effect of amending this Agreement.

[16]

Norwich did not pay Unions invoice. The work proceeded, and Union
    brought an application to the Superior Court to determine the rights of the
    parties.

DECISION OF THE
    APPLICATION JUDGE

[17]

The
    application judge characterized the issue as whether Unions gas pipeline relocation
    costs fell within the scope of the Franchise Agreement or s. 26 of the Act.

[18]

The
    application judge characterized the Act as a complete and comprehensive code
    dealing with drainage works. He considered the definition of drainage works as
    including a drain constructed by any means and he interpreted the Act as
    allowing either municipalities or utilities to reconstruct portions of existing
    gas pipelines. He concluded that moving gas pipelines would fall within the
    broad definition of drainage works, and that this cost would accordingly be subject
    to the cost-sharing mechanism of s. 26 of the Act. He considered that it was
    the intent of the Act to defer to the engineers report regarding cost
    allocation, and that Union was subject to the assessment, which it had not
    appealed.

[19]

The
    application judge concluded that the Franchise Agreement did not oust or
    override the provisions of the Act. He referred to
Seidel v. Telus
    Communications Inc.
, 2011 SCC 15, [2011] 1 S.C.R. 531, at para. 91, citing
Brand v. National Life Assurance Co. of Canada
(1918), 44 D.L.R. 412
    (Man. K.B.), at para.15, as authority that no mere contract
inter partes
can
    take away that which the law has conferred.

[20]

The
    application judge stated that the cost-sharing provisions of the Franchise Agreement
    did not apply to all costs associated with drains. Municipal works is not
    defined in the Franchise Agreement. Moreover, the Gas Franchise Handbook, to
    which the Franchise Agreement refers, states that the cost-sharing mechanism
    will apply in most circumstances, suggesting it will not always apply. He
    noted that the Franchise Agreement provides that it is subject to the
    provisions of all regulating statutes, which includes the Act.

[21]

The
    application judge ordered Union to pay the full cost of the gas pipeline
    relocation. The clear and unambiguous language of the engineers report was
    that Union would bear the full cost of any utility relocation, and Union did
    not appeal the report despite a right to do so under s. 48 of the Act.

DISCUSSION AND ANALYSIS

[22]

In
    my view the application judge erred in his analysis and in the result. First, I
    address his conclusion that the Act overrides the provisions of the Franchise
    Agreement.

[23]

The
    foundation of this conclusion is the application judges interpretation of
Seidel
as standing for a general principle that no mere contract
inter
    partes
can take away that which the law has conferred. There is no such
    general principle, and the application judge was not correct in his
    interpretation of what was said, or quoted from, in
Seidel.

[24]

In
Seidel
the court considered whether a provision in a cell phone
    service agreement requiring arbitration of claims was enforceable when B.C.
    consumer protection legislation expressly prohibited contracting out of its
    terms. In the course of the minority judgment, and before turning to the modern
    approach to arbitration, LeBel and Deschamps JJ. described the courts
    traditional hostility towards arbitration, as contrary to public policy,
    because it was seen to challenge the jurisdiction of the courts. It was in this
    context that they quoted a passage from the 1918 decision in
Brand
which
    stated in part:

The true ground for holding that the jurisdiction of the courts
    cannot be ousted by an agreement between parties is that the courts derive
    their jurisdiction either from the statute or common law, and no mere contract
    inter partes can take away that which the law has conferred.

[25]

The
    traditional view that parties could not, by contracting for arbitration, oust
    the jurisdiction of the courts, has been overtaken by modern authorities,
    including
Seidel
itself, recognizing that arbitration clauses will be
    enforced absent legislative language to the contrary (at para. 42).

[26]

The
    application judge took a part of the quotation noted above out of context as
    authority that parties cannot contract out of statutory provisions. As
    discussed below, the law is to the contrary.

[27]

In
Ontario (Human Rights Commission) v. Etobicoke (Borough)
, [1982] 1
    S.C.R. 202, at para. 19, the Supreme Court endorsed the principle that parties
    can contract out of benefits conferred by statute, unless it would be contrary
    to public policy or prohibited by the statute itself. In that case, a provision
    of a collective agreement that was contrary to the
Ontario Human Rights
    Code
, R.S.O. 1970, c. 318, s. 4(6),

was unenforceable. Similarly, in
Seidel
a provision requiring the
    arbitration of disputes was unenforceable against consumers because of the
    relevant B.C. consumer protection legislation. See also
Fleming v. Massey
,
    2016 ONCA 70, 128 O.R. (3d) 401, leave to appeal to SCC refused, 2016
    CarswellOnt 9353, in which this court stated that courts should exercise
    extreme caution in interfering with the freedom to contract on the grounds of
    public policy before concluding that employers and workers could not contract
    out of the workers compensation regime absent a contrary legislative
    indication (at para. 34).

[28]

Second,
    the application judge, informed by his first error, did not go on to consider
    whether the Franchise Agreement cost-sharing provisions applied to the parties
    dispute.

[29]

The correct approach therefore is: first, to consider
    whether the Act would

prohibit contracting out of s. 26, and whether
    it would be contrary to public policy to recognize an agreement that does so;
    and second, to interpret the Franchise Agreement itself, to determine whether
    there is anything in the contract that would take the parties out of the
    cost-sharing mechanism to which they have agreed, in the case of drainage works
    undertaken under the Act.

[30]

The
    first issue, whether the Act prohibits contracting out of s. 26, can be
    addressed in short course. The application judge characterized the Act as a
    complete and comprehensive code with regard to who does what and who pays for
    what, in support of his conclusion that the provisions of the Act override the
    parties agreement. The issue here however is whether the Act expressly, or by
    necessary implication, would prohibit a utility and a municipality from
    arriving at their own agreement respecting the sharing of costs, where the
    construction of the drainage works requires the relocation of a pipeline. I see
    nothing in the legislative scheme that would preclude such a cost-sharing
    agreement in circumstances where the utility is required by the municipality to
    alter its pipeline to accommodate drainage works. Enforcement of the parties
    contractual cost-sharing agreement would not undermine the detailed procedures
    set out in the Act, for the proposal, planning and approval of drainage works,
    and the sharing of the municipalitys own costs. Indeed, as the application
    judge noted, referring to a 1986 OEB report, the cost-sharing mechanism in s.
    12 was developed by the OEB as a disincentive to municipalities to require gas
    pipeline relocation.

[31]

And
    there is nothing in the legislative scheme to suggest that the ability to
    contract for the allocation of relocation costs between a municipality and a
    utility is contrary to public policy. In approving this specific Franchise
    Agreement, the OEB explicitly found that the agreement was in the public
    interest in a Decision and Order dated September 16, 2004. The Act is not a
    public policy statute, a point that was acknowledged in argument by the
    respondent.

[32]

Once
    it is determined that the Act does not prohibit contracting out of its cost-allocation
    provisions, and that contracting out would not be contrary to public policy,
    the question is whether the Franchise Agreement applies to the current dispute.

[33]

The
    Franchise Agreement provides for the sharing of the utilitys costs occasioned
    by municipal works. Municipal works, which is not defined in the Franchise
    Agreement, is a broad term that, given its ordinary meaning, would include drainage
    works undertaken by a municipality. Municipal drainage works are approved,
    constructed, repaired and maintained by a municipality (see ss. 4, 5, 8, 58 and
    74 of the Act). Section 5(g) of the Franchise Agreement specifically refers to
    gas systems affecting a municipal drain, and accordingly contemplates that
    drainage works are part of the municipal works covered by the agreement. There
    is nothing in the Franchise Agreement that would exclude drainage works from
    municipal works, or that would remove from its cost-sharing provisions the
    drainage works undertaken by Norwich in this case.

[34]

The
    Franchise Agreement describes the cost-sharing mechanism in clear language and
    it unambiguously applies when a municipality requests relocation of a gas system
    to accommodate
any
municipal works. Section 13 does not assist Norwich
    in its argument that the Act, and not the Franchise Agreement, would apply to
    this dispute. That section provides that the Franchise Agreement is subject to
    the provisions of all regulating statutes and municipal by-laws of general
    application, but specifically excludes by-laws which have the effect of
    amending [the] Agreement. The appellant says, without relying on any
    authority, that the Act is a regulating statute to which the Franchise
    Agreement is subject, and therefore overrides the provisions of the agreement.
    I disagree. I would interpret regulating statute in the context of this
    agreement, as referring to health and safety, environmental and other like
    statutes that would regulate the construction of and work on a gas system by
    the utility within the regional municipality. Section 13 does not exempt the
    parties from the cost-allocation provisions to which they have agreed. As for
    by-laws, the intention is clear (and the respondent acknowledges) that any
    by-law (including the one passed in this case approving the engineers report),
    would be unenforceable if it sought to impose an assessment of costs other than
    that to which the parties agreed. As such, the Franchise Agreement would
    override Norwichs by-law approving the engineers report to the extent it purported
    to assess Union for the entire cost of relocating its pipeline.

CONCLUSION AND DISPOSITION

[35]

The
    appellant argued forcefully that s. 26 would apply to the increased cost of the
    drainage works to the municipality, but not to the relocation of a gas system
    required as a result of drainage works, which work could only by statute be
    performed by the utility. It is not necessary for the disposition of this
    appeal to determine this issue. The cost-sharing mechanism in the Franchise
    Agreement prevails over any assessment that was or could have been made under
    the Act, against the utility, as a result of the relocation of its pipeline to
    accommodate the municipal work undertaken here.

[36]

For
    these reasons I would allow the appeal, and substitute for the application
    judges order an order declaring that Norwich is required to pay Union 35% of
    the total costs to relocate Unions gas system; declaring that Union is not
    subject to an assessment under s. 26 of the Act

for such costs; and
    directing Norwich to pay Union $26,808.39 plus prejudgment and post-judgment
    interest in accordance with ss. 128 and 129 of the
Courts of Justice Act
, R.S.O. 1990, c. C.43
.
I would
    set aside the application judges order for costs in favour of Norwich, and substitute
    an order requiring Norwich to pay Union the costs of the application in the sum
    of $18,000 inclusive of HST and disbursements. I would order costs of the
    appeal to Union, to be paid by Norwich, in the agreed sum of $23,000, also
    inclusive of HST and disbursements, with no costs sought by or awarded to the
    OEB.

K. van Rensburg J.A.

I agree H.S. LaForme
    J.A.

I agree S.E. Pepall
    J.A.

Released: January 10, 2018


COURT OF APPEAL FOR ONTARIO

CITATION: Van Sluytman v. Muskoka (District Municipality),
    2018 ONCA 32

DATE: 20180116

DOCKET: C63372, C63373, C63375, C63376,

C63377, C63378, C63380 and C64065

Pepall, Benotto and Paciocco JJ.A.

BETWEEN
    Docket: C63372 and C63373

Mr. Rory Adrian Van Sluytman

Plaintiff (Appellant)

and

Her
    Majesty the Queen in right of Ontario,

The District Municipality of Muskoka

Defendants (Respondents)

AND BETWEEN
    Docket: C63375

Mr. Rory Adrian Van Sluytman

Plaintiff (Appellant)

and

Orillia Soldiers Memorial Hospital

Defendant (Respondent)

AND BETWEEN
    Docket: C63376

Mr. Rory Adrian Van Sluytman

Plaintiff (Appellant)

and

Dr. Anthony Denning Shearing

Defendant (Respondent)

AND BETWEEN
    Docket: C63377

Mr. Rory Adrian Van Sluytman

Plaintiff (Appellant)

and

Muskoka Algonquin Healthcare

Defendant (Respondent)

AND BETWEEN
    Docket: C63378

Mr. Rory Adrian Van Sluytman

Plaintiff (Appellant)

and

Canadian Mental Health Association
    Muskoka-Parry Sound branch

Defendant (Respondent)

AND BETWEEN
    Docket: C63380

Mr. Rory Adrian Van Sluytman

Plaintiff (Appellant)

and

Her
    Majesty the Queen in right of Canada,

Her
    Majesty the Queen in right of Ontario,

Legislative
    Assembly of Ontario,

Legal
    Aid Ontario,

Lake Country Community Legal Clinic

Defendants (Respondents)

AND BETWEEN
    Docket: C64065

Her Majesty the Queen in right of Ontario

Applicant (Respondent)

and

Rory Adrian Van Sluytman

Respondent (Appellant)

Rory Adrian Van
    Sluytman, acting in person

Meagan Williams and Jeremy
    Glick, for the respondent, the Attorney General of Ontario (C63372, C63373,
    C63380 and C64065)

Jameson W. Clow and
    Marnie J. Hudswell, for the respondent, the District Municipality of Muskoka
    (C63372 and C63373)

Logan Crowell, for the
    respondents, Orillia Soldiers Memorial Hospital (C63375) and Muskoka Algonquin
    Healthcare (C63377)

Kosta Kalogiros and
    Brandon Mattalo, for the respondent, Dr. Anthony Denning Shearing (C63376)

Peter D. Duda, for the
    respondent, Muskoka-Parry Sound Community Mental Health Service (C63378)

Ian S. Epstein and
    Zack Garcia, for the respondent, Lake Country Community Legal Clinic (C63380)

Peter Sibenik and Wai Lam (William) Wong, for the Legislative Assembly of Ontario

Marie Abraham, for the
    respondent, Legal Aid Ontario (C63380)

Haniya Sheikh, for the
    respondent, the Attorney General of Canada

Heard: December 14, 2017

On appeal from the orders of Justice Thomas M. Wood of
    the Superior Court of Justice, dated January 23, 2017, with reasons reported at
    2017 ONSC 481, and June 21, 2017, and the order of Justice Joseph Di Luca of
    the Superior Court of Justice, dated March 28, 2017, with reasons reported at
    2017 ONSC 692.

By the Court:

A.

Introduction

[1]

The appellant, Rory Adrian Van Sluytman, a self-represented litigant,
    brings eight appeals before this court, each involving one or more of the
    respondents.

[2]

Seven appeals concern orders made by Wood J. and Di Luca J. of the
    Superior Court of Justice under the summary procedure provided for by R.
    2.1.01(1) of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194,
    dismissing actions brought by the appellant on the ground that they were
    frivolous or vexatious (appeals numbered C63372, C63373, C63375, C63376,
    C63377, C63378, and C63380), (the Rule 2.1.01 Orders).  An additional appeal
    (appeal numbered C64065) concerns an order made by Wood J. allowing in part an
    application by the Attorney General of Ontario for an order declaring the
    appellant a vexatious litigant under s. 140 of the
Courts of Justice Act
,
    R.S.O. 1990, c. C.43 (the CJA), (the CJA Order).  We will address the
    appellants appeals from the Rule 2.1.01 Orders and the CJA Order in turn.

B.

Appeals from Rule 2.1.01 Orders

[3]

The appellants claims in the actions giving rise to the Rule 2.1.01 Orders
    relate generally to his numerous complaints about his interactions, over many
    years, with various government agencies, law enforcement officials, and mental
    health care and medical personnel in various parts of Ontario.  In broad terms,
    they concern: i) an incident in September 2014, which led to the appellants
    involuntary committal to hospital under the
Mental Health Act
, R.S.O.
    1990, c. M.7 (the MHA); ii) an incident in 2012 concerning the appellants
    failure to obtain a pension under the Ontario Disability Support Program; iii)
    an incident in May 2010, which also involved the appellants involuntary
    committal to hospital under the MHA, as well as the alleged failure by the
    respondent, Orillia Soldiers Memorial Hospital, to respond to requests by the
    appellant in April and May 2015 for an inquiry; and iv) historic incidents
    dating from 2008.

[4]

In each of the applications culminating in the granting of the R. 2.1.01
    Orders, the involved Superior Court justice reviewed the governing principles
    concerning the exercise of the courts discretionary authority under R. 2.1.01
     as set out in such leading authorities as
Gao v. Ontario WSIB
, 2014
    ONSC 6100, 37 C.L.R. (4th) 1;
Gao v. Ontario WSIB
, 2014 ONSC 6497, 37
    C.L.R. (4th) 7; and
Scaduto v. The Law Society of Upper Canada
, 2015
    ONCA 733, 343 O.A.C. 87  including many of the characteristics of vexatious
    proceedings identified in those cases.  In each case, having undertaken this
    review, the application judge then applied these principles to the appellants
    relevant pleading to determine, as he was required to do, whether it met the
    established pleadings rules and disclosed a reasonable cause of action or
    potentially meritorious claim.

[5]

The application judge concluded, in each application, that the pleading
    in question exhibited many of the hallmarks of pleadings in vexatious actions.
    In all cases in which the Rule 2.1.01 Orders were granted, the application
    judges concluded that the appellants pleading: i) failed to advance a clear or
    legitimate cause of action; ii) was replete with the type of grandiose claims
    that characterize vexatious actions; and/or iii) in some instances, asserted
    one or more claims that were barred by the expiry of a governing limitation
    period.  On these bases, alone or in combination, the application judges
    concluded that the appellants actions were frivolous and vexatious, the Rule
    2.1.01 Orders were granted, and the appellants actions were dismissed.

[6]

The appellant appeals from the Rule 2.1.01 Orders on three main grounds.
    In brief, he submits that the application judges erred in dismissing his
    actions: i) on the basis of drafting deficiencies in his pleadings and/or due
    to the expiry of the applicable limitation period; ii) in light of the alleged failure
    of government authorities to provide directions to self-represented litigants
    on how to proceed with a claim in compliance with the
Rules of Civil
    Procedure
; and iii) in light of the absence of any notice as required by R.
    2.1.01(3)1.

[7]

We are unable to accept these grounds of appeal.

[8]

We do not accept the appellants contention that the application judges
    erred in dismissing his actions due to deficiencies in his pleadings.  Having
    considered the appellants pleadings in the relevant proceedings, we agree with
    the application judges that they fall far short of meeting the pleadings
    requirements applicable to all litigants.  Further, they fail to advance any
    justiciable cause of action.

[9]

Simply put, the proceedings in question are facially frivolous and
    vexatious.  The appellants pleadings fail to contain any coherent narrative or
    a concise statement of the material facts in support of the wrongs sought to be
    alleged.  Instead, they contain rambling discourse, impermissible attachments,
    grandiose complaints of injury and damages claims, and bald assertions that
    repeat similar, if not identical, allegations detailed in multiple other
    proceedings commenced by the appellant.  On this ground alone, it was open to
    the application judges to dismiss the appellants actions under R. 2.1.01(1).

[10]

We
    also do not accept the appellants contention that the involved government
    authorities were obliged at law to furnish directions to him, as a
    self-represented litigant, on how to frame and plead his claims against the respondents.
    The
Rules of Civil Procedure
provide detailed and clear procedures for
    the commencement of proceedings and delineate the requisite and permissible
    contents of pleadings.  The appellant, like all other litigants, was obliged to
    comply with the
Rules of Civil Procedure
.  He failed to do so in the
    actions at issue on these appeals.

[11]

We
    also reject any suggestion that the deficiencies in the appellants pleadings
    could be cured by appropriate amendments.  The record indicates that, in cases where
    the court provided the appellant with an opportunity to amend his pleadings in
    an effort to remedy their clear deficiencies, he failed to do so.

[12]

Turning
    to the issue of notice, the appellant submits that he did not receive notice
    that the court was considering making a R. 2.1.01 order.

[13]

Under
    R. 2.1.01(3), unless the court orders otherwise, an order staying or dismissing
    a proceeding that appears on its face to be frivolous or vexatious or otherwise
    an abuse of the process of the court shall be made on the basis of written
    submissions.  Those submissions are to be made in accordance with a specified
    procedure that includes, among other things, notice and an opportunity to
    provide written submissions within 15 days after receipt of notice.

[14]

Rule
    2.1 is to be interpreted and applied robustly:
Scaduto
at para. 8.  However,
    the procedure described is to be followed.  Moreover, as stated in
Scaduto
,
    the Rule is limited to the clearest of cases.

[15]

We
    are satisfied that these seven actions are the clearest of cases and further,
    that no procedural injustice ensued. We reach this conclusion for the following
    reasons.

[16]

Although
    it is not entirely clear that notice was given in all seven actions, it is
    evident that notice was definitely given in the action before Di Luca J. and in
    at least two of the six Rule 2.1.01 actions case managed by Wood J. and dealt
    with by him at the same time.  Indeed, in oral submissions, the appellant
    conceded that maybe he had received notice in one or two of the actions.

[17]

On
    March 28, 2017, Di Luca J. gave reasons granting a R. 2.1.01 order in
    CV-16-1483 (appeal numbered C63375).  At para. 1 of his reasons, he noted that
    the Registrar of the Court was directed to give notice and that the appellant
    did provide written submissions setting forth why, in his view, the R. 2.1.01
    order ought not to be granted.  Di Luca J. observed in para. 15 of his
    endorsement:

In his written submissions, the plaintiff is openly
    contemptuous of the Court process.  There is nothing in the written
    submissions, apart from thinly disguised vitriol, that can assist the court in
    deciding whether or not to dismiss the action.

[18]

On
    January 23, 2017, Wood J. gave reasons granting a R. 2.1.01 order in each of
    the six actions he was managing in Bracebridge.  Prior to this, on January 5,
    2017, he ordered that a copy of the request for such an order in action CV-16-129
    (which is not under appeal before this court) and CV-16-130 (appeal numbered
    C63378) was to be provided to the appellant.  The index to the appellants
    appeal book for action CV-16-130 describes this endorsement as follows: Copy
    of Endorsement (Notice of the use of Rule 2.1) by Justice Wood, dated January
    5, 2017 and received by the appellant on January 11, 2017.  Similarly, in CV-16-160,
    it is evident that notice was given as in his endorsement of January 5, 2017,
    Wood J. stated that the appellant had filed a response.

[19]

Justice
    Wood was managing all of the six actions and dealt with them all at the same
    time.  It is clear that notice was directed to be given and was given in at
    least some of the actions.  The endorsements in all of the actions note the
    appellant as appearing in person and that written submissions were received.
    Having said that, as in
Obermuller v. Kenfinch Co-Operative Housing Inc.
,
    2016 ONCA 330, at para. 7, even if the appellant did not receive notice under R.
    2.1.01 to make submissions, no prejudice or injustice arose as the outcome
    would be unaffected.  It is apparent on the face of each statement of claim
    that the actions are frivolous and vexatious and an abuse of process.

[20]

For
    these reasons, we see no basis to interfere with the R. 2.1.01 Orders.

[21]

In
    light of this conclusion, we do not reach the question whether the expiry of a
    limitation period may be relied upon as an independent basis on which to
    dismiss an action under R. 2.1.01(1).

C.

Appeal from CJA Order

[22]

We
    reach a similar conclusion regarding the appellants appeal from the CJA Order
    in appeal numbered C64065.

[23]

Many
    of the salient characteristics of vexatious proceedings are usefully described
    in
Re Lang Michener et al. v. Fabian et al.
(1987) 59 O.R. (2d) 353
    (H.C.).  The application judge considered
Lang Michener
and these
    characteristics and evaluated the appellants actions accordingly.  He
    concluded at para. 13 that the various actions commenced by the appellant are
    a classic reflection of many of the characteristics outlined in
Lang
    Michener
, noting, among other matters:

·

the appellant has commenced multiple actions involving the same
    issue or issues and threatened to commence 154 more actions in the face of
    dismissals of his previous ones;

·

in most of his actions, the appellant sought the acknowledgement
    and correction of perceived government shortcomings, as distinct from asserting
    a right recognized at law;

·

the damages claims advanced by the appellant in many of his actions
    were grandiose  often ranging in quantum from $5 to $15 million  and bore no
    relation to the wrongs alleged;

·

the appellants asserted claims were repetitious, with many
    rolling over from one action to the next, in only slightly modified form;

·

the appellants written submissions on the CJA s. 140
    application continued this same pattern and attempted, as the application judge
    put it at para. 15 of his reasons, to lay the blame for his deficient
    pleadings at the door of the government and the courts for not providing
    adequate training or allowing sufficient leeway to self-represented litigants.
    The government of Canada and the Premier of Ontario are blamed for these
    deficiencies; and

·

the appellant has appealed 7 of the 14 rulings made on his
    actions and failed to pay several outstanding adverse costs awards.

[24]

We
    agree with the application judge that these are hallmarks of vexatious
    proceedings, and a vexatious litigant.

[25]

We
    have also considered, and reject, the appellants many complaints of procedural
    unfairness relating to the CJA s. 140 application.  It is unnecessary to detail
    those complaints in these reasons.  On this record and, in some instances, as a
    matter of law, these complaints are without merit.  So, too, is the appellants
    contention that s. 140 of the CJA is an unjust legislative provision that was
    unfairly applied in his case.

[26]

In
    summary, in the circumstances here, the discretionary CJA Order was amply
    justified.  The appeal from it fails.

D.

Disposition

[27]

Accordingly,
    for the reasons given, all eight appeals are dismissed.  Most of the
    respondents did not seek costs and we see no reason to award any in the
    unfortunate circumstances of these appeals.

Released:

SP                                                   S.E.
    Pepall J.A.

JAN 16 2018                                    M.L.
    Benotto J.A.

David
    M. Paciocco J.A.