Freire v. Freire refuses a motion to extend the limitation period in s. 7(3) of the Family Law Act for bringing an application for equalization of net family property. It appears a well-reasoned decision, though I confess to having not read it closely. I note it here largely because I don’t see very many decisions of this kind and thought it might be helpful to family law lawyers. Let me know if I’ve missed something significant!
Author: Dan
Ontario: the Divisional Court on the nunc pro tunc doctrine
The Divisional Court has confirmed that the entitlement to an order granting leave nunc pro tunc to commence a derivative action under s. 26 of the Business Corporations Act requires bringing the leave motion within the limitation period.
In 1186708 Ontario Inc. v. Gerstein, the appellants appealed from the order dismissing their motion as statute-barred arguing that the Supreme Court decision in Green (which set out the principles of the nunc pro tunc doctrine) applies only to leave applications under the Securities Act and not under other statutes.
The Divisional Court disagreed. There was no basis not to apply the Court’s analysis in Green regarding the Securities Act to the Business Corporations Act (and probably any other statute).
Ontario: Limitations Act applies to unpaid overtime claims
Ernewein v. Honda Canada includes the following statement on the limitation of claims for unpaid overtime pursuant to the Employment Standards Act:
Where a claim for unpaid overtime is based upon the overtime provisions of the Employment Standards Act, the courts generally consider the claim encompassed by the relevant provisions of the Limitations Act.
This might be helpful when considering a limitations defence to an unpaid overtime claim.
It does seem to imply that there’s uncertainty about the application of the Limitations Act to these claims. I don’t recall any—please forward me the citations if you do—but I can’t imagine where uncertainty would arise. The Limitations Act applies to all claims asserted in court proceedings to remedy a loss caused by wrongful conduct, including all claims for unpaid overtime.
Ontario: the Court of Appeal can’t let go of the cause of action
The Court of Appeal’s endorsement in Kolosov v. Lowe’s Companies Inc. reads as if it were delivered 15 years ago when the former Limitations Act was still in force.
The Court of Appeal states the following about the law of the limitation of the intentional torts of false arrest and false imprisonment:
[11] The law in relation to the commencement of the limitation period for the intentional torts of false arrest and false imprisonment, and associated Charter breaches, is well settled. As Chiappetta J. noted in Fournier-McGarry (Litigation Guardian of) v. Ontario, 2013 ONSC 2581 (CanLII), at para. 16:
A claim for the common law torts of false arrest, false imprisonment and breach of Charter rights arising there-from crystallizes on the date of arrest (see, Nicely v. Waterloo Regional Police Force, 1991 CanLII 7338 (ON SC), [1991] O.J. No. 460 (Ont. Div. Ct.), para. 14; Fern v. Root, 2007 ONCA 79 (CanLII),[2007] O.J. No. 397 (Ont. C.A.), para. 102).
In other words, the Court is stating that the limitation period commences when the cause of action accrues, the cause of action in question accrued on the date of the arrest, and so this is when the limitation period commenced, and no fact (such as when full police disclosure occurred), could alter this analysis.
This is plainly wrong. Where to begin? Let’s try first principles:
- The Limitations Act applies to all claims pursued in court proceedings.
- The Limitations Act applies to claims, not causes of action. The language “cause of action” does not appear in the Limitations Act. The accrual of a cause of action hasn’t determined the commencement of limitation period since 2004 when the Limitations Act came into force.
- Section 5 determines the commencement of the limitation period. It’s a factual analysis. A fact such as when full police disclosure occurs may well have an impact on the discovery analysis.
This kind of anachronistic analysis does the law no favours. The limitations scheme is confusing enough ; wonky outlier decisions like this aren’t helpful.
Ontario: discovery doesn’t require knowledge of culpability
Update: The Supreme Court denied leave to appeal.
In Dale v. Frank, the Court of Appeal reiterated that discovery of a claim doesn’t require knowledge that the defendant’s act or omission was culpable. To require a plaintiff to know with certainty that the defendant’s wrongful conduct caused her injuries would require her to come to a legal conclusion as to the defendant’s liability. This is too a high a bar, and not what s. 5(1) of the Limitations Act requires.
The Appellants also argued that the motion judge erred by failing to consider s. 5(1)(a)(iv) of the Limitations Act in her analysis. The Court of Appeal rejected this argument. The reasons permitted the inference that the motion judge considered this discovery matter:
[9] We are not persuaded by this submission. Although the motion judge did not undertake a distinct analysis under this provision, her conclusion that each of the appellants knew or ought to have known of the other elements in s. 5(1)(a) was sufficient to infer that she also concluded that the appellants knew or ought to have known that a proceeding would be an appropriate means to seek a remedy for their losses even before the 2011 press release about Dr. Frank.
Unfortunately, in making this point the Court quoted its decision in Lawless for the principle that discovery requires the prospective plaintiff to know the material facts necessary to make a claim. Knowledge of the material facts of the claim does not include knowledge of the matter in s. 5(1)(a)(iv)—that a claim is an appropriate remedy to the loss. It’s disappointing to see the Court of Appeal continuing to rely on Lawless, given the mischief it causes.
Ontario: due diligence and motions to add a defendant
The Court of Appeal recently held in Fennell and Galota that the plaintiff’s due diligence is only factor in the discovery analysis. This introduced some uncertainty into the test for determining whether to add a defendant after the presumptive expiry of the limitation period, which is, essentially, whether the plaintiff exercised sufficient due diligence to found a discovery argument.
Last June, in Wong v. Salivan Landscape Ltd., Master Haberman held that due diligence is no longer a consideration in determining whether to add a defendant.
[31] The Court of Appeal has recently asked similar questions in Fennell v. Deol, 2016 ONCA 249 (CanLII). There, Stewart J. concluded that while due diligence is a factor that informs the analysis of when a claim ought to have been reasonably discovered, lack of due diligence is not a separate and independent reason for dismissing a plaintiff’s claim as statue-barred.
[32] Though the issue arose in Fennel in the context of an appeal from a summary judgment motion dismissing the claim against Deol, in my view, a similar approach should be taken in the context of a motion to add a party after the expiry of the presumptive limitation period. A motion should not be dismissed on the basis of a lack of diligence.
[33] Even before Fennell, the court had already sought to dilute the somewhat heavy onus that some case law had thrust on plaintiffs as a means of demonstrating their due diligence. As Baltman J. noted (in Welsch v. Peel Standard Condominium Corp. No. 755, 2013 ONSC 7611 (CanLII)),Lauwers J. (as he then was) stated in Madrid v. Ivanhoe Cambridge Inc. 2010 ONSC 2235 (CanLII), that it is not in the interests of justice to impose an overly muscular level of pre-discovery due diligence; the parties should not have to conduct a pre-discovery form of discovery. Baltman J. confirmed that as each case is unique and will turn on its own facts, whether the steps taken in each case will be sufficient will also vary.
Arguably, this rejects about twelve years of jurisprudence beginning with Master Dash’s decision in Wong v. Adler. That’s problematic. The purpose of Master Dash’s test is to require something more of a plaintiff than a mere invocation of discoverability to obtain leave to add a defendant after the presumptive expiry of the limitation period. Master Dash required the plaintiff to establish reasonable due diligence to ensure there would be some substance to the discoverability argument. It’s not clear what test Master Haberman proposed to use, if any, instead.
I don’t think that the Court of Appeal intended to change. I agree with Justice Emery’s analysis in Fontanilla v. Thermo Cool Mechanical:
[34] The Court of Appeal agreed. Galota does not change the law regarding the expectation that a party will exercise reasonable diligence to determine the facts that would support a claim for which a proceeding may be brought to seek a remedy. The court inGalota relied on the decision of Justice Van Rensburg in Fennell v. Deol,2016 ONCA 249 (CanLII). The court in Fennellrecognized that, although due diligence is a factor that the court must consider at the time a claim ought reasonably to have been discovered, lack of due diligence is not in and of itself a reason for dismissing a plaintiff’s claim as statute barred.
[35] Instead, due diligence must be considered a part of the analytical process to determine on an objective basis the day on which a reasonable person with abilities and in circumstances of the person affected by the claim first would have known of the matters referred to in s. 5(1)(a) to bring an action. As Justice Van Rensburg explained in Fennell at paragraph 24:
[24] Due diligence is part of the evaluation of s. 5(1)(b). In deciding when a person in the plaintiff’s circumstances and with his abilities ought reasonably to have discovered the elements of the claim, it is relevant to consider what reasonable steps the plaintiff ought to have taken. Again, whether a party acts with due diligence is a relevant consideration, but it is not a separate basis for determining whether a limitation period has expired.
I expect the courts will prefer Justice Emery’s approach.
Ontario: r. 21 motions and limitation defences
Can you bring a r. 21 motion to strike a claim as statute-barred before delivering a statement of defence? Yes, the Divisional Court confirmed in Amrane v. York University, but only where it is plain and obvious that the plaintiff could assert no additional facts that would alter the limitations analysis:
[14] I agree with the motion judge that the expiry of a limitation period is normally a defence that must be pleaded. However, as the Court of Appeal recognized in Beardsley v. Ontario, 2001 CarswellOnt. 4137 at para. 21, in those cases where it is plain and obvious from a review of the claim that no additional facts could be asserted that would alter the conclusion that a limitation period had expired, it would be unduly technical to require the delivery of a statement of defence.
See also this summary from Justice Stinson’s decision in Clark v. Ontario (Attorney General):
[12] By way of response the plaintiffs argue that, save in exceptional cases (of which this is not one) courts do not entertain motions to decide limitation period issues prior to service of a statement of defence. In any event, they further contend, there are live factual issues that bear on the limitation issue, which are expressly raised in the statement of claim and preclude determination of the question on a pleadings-based motion such as this.
[13] Strong authority for the former proposition can be found in Beardsley v. Ontario Provincial Police (2001), 2001 CanLII 8621 (ON CA),57 O.R. (3d) 1 (C.A.) where the Court of Appeal stated as follows (at paras 21 and 22):
[21] The motion to strike based on the expiry of a limitation period could only be made pursuant to Rule 21.01(1)(a), which provides that a party may move for the determination of a question of law “raised by a pleading”. The expiry of a limitation period does not render a cause of action a nullity; rather, it is a defence and must be pleaded. Although we agree that it would be unduly technical to require delivery of a statement of defence in circumstances where it is plain and obvious from a review of a statement of claim that no additional facts could be asserted that would alter the conclusion that a limitation period had expired [for example expiry of the two-year limitation period under the Highway Traffic Act … in connection with a claim for property damage only, in circumstances where it is clear the discoverability rule does not apply] , a plain reading of the rule requires that the limitation period be pleaded in all other cases. See Pollakis v. Corner (1975), 1975 CanLII 597 (ON SC), 9 O.R. (2d) 691 (H.C.J.).
[22] Plaintiffs would be deprived of the opportunity to place a complete factual context before the court if limitation defences were determined, on a routine basis, without being pleaded. Adherence to rules that ensure procedural fairness is an integral component of an appearance of justice. The appearance of justice takes on an even greater significance where claims are made against those who administer the law. …
[14] More recently, Brown J. observed in Portuguese Canadian Credit Union Ltd. v CUMIS General Insurance (2010), 2010 ONSC 6107 (CanLII), 104 O.R. (3d) 16 (S.C.J.) as follows (at para. 33):
… I do not accept the submission of the Credit Union that its Rule 21 motion falls within the category of cases alluded to inBeardsley “where it is plain and obvious from a review of a statement of claim that no additional facts could be asserted”. InBeardsley the possibility of bringing a Rule 21.01(1)(a) motion before the close of pleadings was discussed in the context of a determination as to whether an action was statute-barred – for example, such as in cases where the injuries suffered in a car accident occurred on a date certain and nothing more could be said about that fact. That type of case is a far cry from the complex claim asserted in this proceeding. [Footnote omitted.]
[15] In Canadian Real Estate Assn. v. American Home Assurance Co., 2015 ONCA 389 (CanLII) (at para. 2) the Court of Appeal again reminded us that “the exception in Beardsley … must be confined to cases that involve no legal or factual complexities.”
Ontario: Limitations Act doesn’t apply to applications for attorney compensation
In April, I reported that in Armitage v. The Salvation Army, Justice Ray held wrongly that the limitation period for claiming compensation as a property attorney commences on the death of the person who granted the power of attorney. I wrote that the Limitations Act doesn’t apply to such an application. In December, the Court of Appeal agreed.
Armitage brought applications to pass her accounts as attorney for property and as estate trustee. The Salvation Army filed notices of objection in both proceeding raising a limitations defence. Justice Ray held that the death of the person who granted the power of attorney terminated the continuing power of attorney and was the commencement of the applicable limitation period. The applications were accordingly timely.
Not so, I wrote. While there may be sound policy reasons for limiting a claim for attorney’s compensation after the death of the grantor, no limitation period applies to such an application. The application is not a “claim” within the meaning of the Limitations Act because it doesn’t seek to remedy loss resulting from an act or omission. If it’s not a “claim”, the basic and ultimate limitation periods can’t apply. In fairness to Justice Ray, we noted that neither party raised this point.
Armitage raised the point on appeal, and Justice Hourigan accepted it:
[19] While I agree with the result reached by the application judge, I disagree with his conclusion that the Limitations Act, 2002had any application in the circumstances of this case. As I will discuss below, in my view, the Limitations Act, 2002 does not apply because compensation for an attorney for property through the passing of accounts process does not constitute a “claim” within the meaning of the Limitations Act, 2002.
[20] It is useful to briefly consider the nature of compensation for attorneys for property and how the passing of accounts process works. An attorney for property is a fiduciary and has an obligation under s. 32(6) and 38(1) of the SDA to, among other things, keep accounts of all transactions involving the property.
[21] The attorney for property may bring an application to the Superior Court to have his or her accounts approved. Through that process, the attorney for property may also seek court approval of compensation for his or her services. The responding parties to the application have an opportunity to file a notice of objection to the accounts, and to object to the compensation that the attorney for property proposes to take or has taken.
[22] Where the attorney for property has not commenced an application for the passing of accounts, an interested party may bring an application under s. 42(1) of the SDA to compel the passing of accounts.
[23] As noted by Matthew Furrow and Daniel Zacks in their very recent article “The Limitation of Applications to Pass Accounts” (2016) 46 Adv. Q. 2, historically in Ontario there was no statutory limitation period for the passing of accounts. The only bars were the equitable defences of laches and acquiescence. The question becomes whether the enactment of the Limitations Act, 2002changed the law and imposed the general two-year limitation period on claims for compensation for attorney for property.
[24] At first blush it would appear that such claims might be captured by the general limitation period. The Limitations Act, 2002 was designed to comprehensively deal with all manner of civil claims, whether grounded in equity, law, or statute. There are specific carve outs in the legislation for claims that are not subject to the Act. It is arguable, therefore, that if compensation for attorneys for property was intended to be exempted from the general limitation period it would have been specifically exempted under the Limitations Act, 2002.
[25] The difficulty with that argument is that the Limitations Act, 2002 applies only to the assertion of a “claim”, and a claim is defined in the Act as follows: “a claim to remedy an injury, loss or damage that occurred as a result of an act or omission.”
[26] The appellant submits that the right under the SDA to seek compensation is a new statutory right and, as with all rights, where there is a right there must be a remedy. Further, the appellant argues that the respondent’s claim for compensation fits within the statutory definition of a claim. Counsel for the appellant submits that in seeking compensation at this time the respondent has suffered a loss because she chose not to seek self-help and take her compensation earlier. He goes on to argue that this loss is the result of the respondent’s omission in failing to claim compensation earlier.
[27] I am unable to accede to this rather circular argument. The fact is that in seeking court approval of the passing of accounts, an attorney for property is not seeking redress for any loss, injury, or damage. Rather, he or she is seeking approval from the court of his or her actions in managing the property, including approval for compensation previously taken or now sought. A passing of accounts application is the opposite of remedial; it is a process that seeks a court order that no remedy is necessary with respect to the accounts: see Furrow and Zacks, at pp. 9-10. Thus, the passing of accounts does not fit within the first part of theLimitations Act, 2002 definition of claim.
[28] An application for the passing of accounts also does not fit within the second part of the statutory definition of claim. Where the definition speaks of an act or omission, it must surely refer to an action taken or not taken by a third party that has the effect of causing loss, injury, or damage. It would be a strange result if a limitation period could not be triggered until the party asserting the claim took an action or omitted to do something.
[29] The result, in my view, is that a passing of accounts under the SDA is not subject to the two-year general limitation period found in the Limitations Act, 2002.[1] The common law in that regard was not changed with the enactment of that legislation. Consequently, the only defences available are the equitable defences of laches and acquiescence, neither of which were asserted in the present case.
Obviously, I think this is sound reasoning (based as it is on a paper I wrote with my colleague Matthew Furrow).
Importantly, Justice Hourigan explicitly not does hold that the Limitations Act has no applicability to the passing of accounts process under the SDA:
[1] I do not mean to categorically provide that the Limitations Act, 2002 has no applicability to the passing of accounts process under the SDA. In particular, it may be that the filing by a beneficiary of a notice of objection after an attorney has sought a passing of accounts is a claim within the meaning of the Limitations Act, 2002. However, I leave this determination to another case where it arises directly on the facts.
In our paper, Matthew and I argue a notice of objection that asserts a claim within the meaning of the Limitations Act is subject to its limitation periods. Send me a note if you’d like a copy.
Ontario: notice under the Proceedings Against the Crown Act
Conners v. Ontario considers compliance with the notice requirement of the Proceedings Against the Crown Act.
The plaintiff was assaulted by another inmate while incarcerated at a facility operated by Ontario. On the date of the incident, the corrections officer who found the plaintiff completed an accident/injury report. A nurse at the prison signed the report attesting to the injuries. The prison authorities obtained two statements from the plaintiff. They transferred the plaintiff to a hospital where hospital staff recorded his condition and course of treatment. Meanwhile, a manager at the prison maintained a log-book of the events.
The plaintiff argued that all of these events, taken together, constituted notice to Ontario of his claim.
Justice Corbett rejected this argument:
[22] I do not accept this argument:
a. the statements given by Mr Conners on the day of the incident do not contain any suggestion that Mr Conners considered that Ontario was to blame for the injuries he suffered at the hands of Mr McCartney.
b. The discussions between Mr Conners and Mr Duffy in January 2010 concerned a possible claim by Mr Conners to the Criminal Injuries Compensation Board arising out of the conduct of Mr McCartney. There is no evidence that either Mr Conners or Mr Duffy raised the possibility of a claim by Mr Conners against Ontario, the prison, or persons working at or associated with the prison. Throughout, the discussion was premised on potential claims in respect to wrongdoing of Mr McCartney.
[23] Mr Conners argues that this case is similar to Latta v. Ontario, where notice of the facts surrounding an injury were found to be sufficient to satisfy the requirements of s.7(1) of PACA, even though the notice did not expressly threaten a claim against the Crown for compensation.[4] In my view the cases should be distinguished.
[24] Latta was a trip-and-fall case. Mr Latta tripped over a sand-filled bucket left in a dangerous place. As a result he fell down some concrete stairs and suffered serious back injuries. The court held that notice of the circumstances of the accident was sufficient in that case to be notice of a claim because the circumstances were such that the Crown was the obvious entity with legal responsibility for the inherently dangerous situation on its premises. That is simply not the case here: there is no obvious implication that an unprovoked attack by one inmate upon another is the result of any misconduct by the Crown.
[25] In Latta, which was a “close case” (para. 31), the court found that there was “an element of complaint” in Mr Latta’s dealings with prison authorities at the time of the incident (para. 32). The court found:
… the appellant’s decision to inform prison officials about the accident and his identification of the actions of the Crown (leaving a bucket at the top of the stairs) as a cause of the accident entail a certain degree of “complaint”. It may not be, in explicit terms, the equivalent of “I fell down the stairs and it is your fault”; however, it goes beyond a simple “I fell down the stairs.” (para. 32)
In the case before me, there was nothing about Mr Conners conduct that could have led reasonable prison officials to have understood him to be implying “I was assaulted by McCartney and it is your fault.” Rather, what he said, in effect, was “I don’t know what happened because I was hit from behind”. He was told that McCartney did it and that a prosecution and claim for criminal injuries compensation was possible. These circumstances do not entail “a certain degree of ‘complaint’” about the prison or its employees.
[26] In Latta the Court of Appeal also found that the circumstances described by Mr Latta in the Accident/Injury Report suggest, on their face, the potential for litigation. The court found:
The accident itself is a visual paradigm for a lawsuit: a man trips over a bucket being used as a doorstop at the top of some stairs, falls down the stairs and is injured…. Although the report does not use the word “claim”, the content of the report and the nature of the accident have, in my view, a strong indication of “potential claim” about them. (para. 34)
The circumstances of Mr Conners’ case are not a “visual paradigm for a lawsuit”. Unfortunately, assaults by prison inmates on other inmates are not unheard of. The agency for injury is an inmate, not the prison or its employees. Of course could imagine circumstances where it might be possible to assert a claim against a prison for failing to protect an inmate from a known threat. There is no evidence that Mr Conners complained of circumstances that could give rise to such a claim – circumstances that could carry with them the “element of complaint” that would give notice to the prison that Mr Conners was saying to the prison that he was injured in an assault “and it is your fault.”
The plaintiff also argued that the Crown had waived any non-compliance with PACA. Justice Corbett rejected these arguments well.
(a) The Waiver Argument
[29] The waiver argument cannot succeed for two reasons. First, neither the court nor government lawyers can waive the requirements of PACA. The requirements of PACA are mandatory and it is for the plaintiff to prove that he has complied with them.[5]
[30] In any event, Ontario did plead and rely upon PACA in para. 21 of its original statement of defence: that which is expressly pleaded cannot be said to have been waived by the pleading.
(b) The Admission Arguments
[31] It would be possible (and in some cases desirable) for the Crown to admit that it has received the required notice under PACA. When this happens, the plaintiff will not be required to elicit proof at trial of compliance with the provision. But in the absence of a clear, unambiguous admission, compliance with PACA is a condition precedent for a claim against the Crown that is governed by PACA, and the plaintiff is required to prove compliance as part of its case in chief.
The decision includes a helpful summary of the notice requirement:
The Notice Requirements in PACA
[2] Subsection 7(1) of PACA provides:
… no action for a claim shall be commenced against the Crown unless the claimant has, at least sixty days before the commencement of the action, served on the Crown a notice of the claim containing sufficient particulars to identify the occasion out of which the claim arose, and the Attorney General may require such additional particulars as in his or her opinion are necessary to enable the claim to be investigated.
[3] Subsection 7(2) of PACA extends an applicable limitation period in certain circumstances where notice is required pursuant to subsection 7(1):
Where a notice of claim is served under subsection (1) before the expiration of the limitation period applying to the commencement of an action for the claim and the sixty-day period referred to in subsection (1) expires after the expiration of the limitation period, the limitation period is extended to the end of seven days after the expiration of the sixty-day period.
[4] A notice of claim must be in writing and must include a complaint which, if not satisfied, could reasonably be anticipated to result in litigation against the Crown.[1] The focus is on the substance of what is communicated to the Crown rather than rigid formal requirements.[2]
[5] Compliance with the sixty-day notice requirement in s.7(1) of PACA is mandatory. It cannot be abridged. An action commenced in violation of this requirement is a nullity. And the court has no discretion to relieve from this result.
Ontario: Appealing from an order dismissing an OBCA claim as statute-barred
An appeal from a final order made under the Business Corporations Act is to the Divisional Court even where the order dismisses the proceeding as statute-barred.
In 1186708 Ontario Inc. v. Gerstein, the plaintiffs brought a motion under s. 246 of the Business Corporations Act. The motion judge found it statute-barred by the expiry of the limitation period. The Court of Appeal held that the Divisional Court had jurisdiction:
[7] Under s. 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, an appeal lies to this court from “a final order of a judge of the Superior Court of Justice, except … an order from which an appeal lies to the Divisional Court under another Act” (emphasis added). Under s. 255 of the OBCA, “[a]n appeal lies to the Divisional Court from any order made by the court under this Act.”
[8] There is no dispute that the Order is a final order.
[9] Paragraph 1 of the Order flowed from a motion for leave to commence a derivative action under s. 246 of the OBCA. We acknowledge that the claim was found to be statute-barred and leave refused on that basis. We also acknowledge that the determination that the claim was statute-barred was made under the Limitations Act, 2002, not the OBCA. However, para. 1 of the Order disposed of the motion which was brought under s. 246 of the OBCA. Given the broad scope afforded to s. 255 of the OBCA in this court’s jurisprudence, it is our view that para. 1 of the Order is an order within the meaning of s. 255 of the OBCA: see Amaranth L.L.C. v. Counsel Corp. (2004), 2004 CanLII 10897 (ON CA), 71 O.R. (3d) 258 (C.A.); and Ontario Securities Commission v. McLaughlin, 2009 ONCA 280 (CanLII), 248 O.A.C. 54.