Waterloo (City) v. Wolfraim, 2007 ONCA 732

CITATION: Waterloo (City) v. Wolfraim, 2007 ONCA 732

DATE: 20071023

DOCKET: C45913

COURT OF APPEAL FOR ONTARIO

MOLDAVER, LANG and LAFORME JJ.A.

BETWEEN:

THE CORPORATION OF THE CITY OF WATERLOO

Plaintiff (Appellant)

and

PETER WOLFRAIM, R. BRIAN STEVENS, KEN DOUGLAS, MIKE PITRE, DAVE ROBSON, SANDY PESSIONE, CARMEN ROBERTS, BOHDAN (B0) PELECH, JERRY MAKOHON, ROBERT WRIGHT, MO DANIS, KEN ANDERSON, NEIL CAMERON, SCOTT MCNABB

Defendants (Respondents)

David O’Connor and Jason J. Tan for the appellant

Mark J. Freiman and Junior Sirivar for the respondents

Heard and endorsed October 18, 2007

On appeal from the order of Justice Peter Cumming of the Superior Court of Justice dated August 2, 2006.

APPEAL BOOK ENDORSEMENT

[1] With respect to the learned motion judge, in our view, it is not at all plain and obvious that the release entered into by the corporate parties was meant to include the employees of MFP. In coming to the opposite conclusion, the motion judge engaged in an impermissible weighing of evidence and drawing of inferences on contentious matters. In doing so, he exceeded his jurisdictional mandate on a Rule 21 motion.

[2] In our view, absent the clearest of cases, which this is not, the position of the respondents is properly the subject of a defence that should be pleaded and established as evidence. Along those lines, we think it is at least an open question whether the common sense rationale that informs the relaxation of the privity doctrine in cases such as London Drugs Ltd. v. Kuehne and Nagel International Ltd., [1992] 3 S.C.R. 299 and Fraser River Pile and Dredge Ltd. v. Can-Dive Services Ltd., [1999] 3 S.C.R. 108 should apply in cases like this, where the conduct of the employees is complete when the release is executed and it consists (allegedly) of quasi criminal conduct, outside the scope of their employment, for personal gain at the expense of their corporate employer.

[3] In our view, the question of abuse by re-litigation is inextricably intertwined with the release issue. A court should invoke its authority to stay an action for abuse of process only in the clearest of cases. This case falls well short of that.

[4] In Canam Enterprises Inc. v. Coles, 2002 SCC 63, [2002] 3 S.C.R. 307, the Supreme Court confirmed that it is not necessarily an abuse of process to bring a subsequent action (i) where the issues and evidence may overlap with an earlier action; (ii) where the specific issue in the subsequent action was not decided by the court in the earlier action; or (iii) when the duty of care of the individuals/agents in question was not an issue before the court in the earlier action against the principal.

[5] Overall, the doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedures in a way that would be manifestly unfair to a party in the litigation or would in some way bring the administration of justice into disrepute. This case lacks those attributes.

[6] Accordingly, the appeal is allowed and the motions that form the subject of this appeal are dismissed.

[7] Costs to the appellant on the motion are fixed at $65,000 all inclusive and for the appeal at $25,000 all inclusive.