Charles Michael Gibson

The appellants appealed an order striking their third party claims against the Attorney General of Ontario for breach of fiduciary duty and malicious failure to prosecute.

The Court of Appeal allowed the appeal, finding that the motions judge erred by concluding that the Attorney General can never owe a fiduciary duty in the prosecutorial function, as the categories of fiduciary are not closed.

The Court also held that the motions judge improperly relied on affidavit evidence on a Rule 21 motion to conclude that the malicious failure to prosecute claim was incapable of proof.

The third party claims were reinstated.

The applicant, the Régie des rentes du Québec, brought an application for judicial review of a decision by the respondent, the Pension Commission of Ontario, which had approved the withdrawal of a pension surplus by an employer.

The pension plan had members in both Ontario and Québec.

The respondent, acting as the major authority under a reciprocal agreement, applied Ontario law exclusively to the surplus application.

The Divisional Court found the respondent's decision unreasonable because it failed to consider or apply Québec law to the Québec members, despite the plan's terms and the lack of an express exemption.

The decision was quashed as it affected Québec members and remitted for reconsideration.