Court File and Parties

CITATION: Magnotta Winery Corporation v. The Alcohol and Gaming Commission (Ontario), 2015 ONSC 2612

DIVISIONAL COURT FILE NO.: 127/15

DATE: 20150423

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: MAGNOTTA WINERY CORPORATION, MAGNOTTA VINTNERS LTD., MAGNOTTA VINEYARDS LTD., MAGNOTTA WINES LTD., MAGNOTTA WINERY ESTATES LTD. and MAGNOTTA CELLARS CORPORATION Plaintiffs/Responding Parties

AND:

THE ALCOHOL AND GAMING COMMISSION OF ONTARIO, THE LIQUOR CONTROL BOARD OF ONTARIO and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO Defendants/Moving Parties

B E T W E E N:

MAGNOTTA WINERY CORPORATION, MAGNOTTA VINTNERS LTD., MAGNOTTA VINEYARDS LTD., MAGNOTTA WINES LTD., MAGNOTTA WINERY ESTATES LTD. and MAGNOTTA CELLARS CORPORATION Plaintiffs/Responding Parties

AND:

THE ALCOHOL AND GAMING COMMISSION OF ONTARIO and THE LIQUOR CONTROL BOARD OF ONTARIO Defendants/Moving Parties

BEFORE: Lederer J.

COUNSEL: Ian N. Roher & Jennifer Pocock, for the Plaintiffs/Responding Parties Leonard Marsello & Edmund Huang, for the Defendants, The Alcohol and Gaming Commission of Ontario and Her Majesty the Queen in Right of Ontario Jill Dougherty, for the Defendant, The Liquor Control Board of Ontario

HEARD at Toronto: In Writing

ENDORSEMENT

[1] This is a motion for leave to appeal a decision refusing a request for a sealing order with respect to Minutes of Settlement signed by the parties, or predecessors, in respect of earlier litigation between them.

Sealing Orders

[2] Sealing orders are rare. They offend an underlying principle of our judicial process: public openness.[^1] In the modern day, it has been recognized that the openness of the courts is tied to the freedom of expression, a fundamental right protected by s. 2(b) of the Charter of Rights and Freedoms:

In opposition to the confidentiality order lies the fundamental principle of open and accessible court proceedings. This principle is inextricably tied to freedom of expression enshrined in s. 2(b) of the Charter...The importance of public and media access to the courts cannot be understated, as this access is the method by which the judicial process is scrutinized and criticized. Because it is essential to the administration of justice that justice is done and is seen to be done, such public scrutiny is fundamental. The open court principle has been described as ‘the very soul of justice’, guaranteeing that justice is administered in a non-arbitrary manner...[^2]

[3] Even so, there are circumstances where orders of the type sought are granted. There are competing values. For one, we want to encourage settlement. One of the inducements to settlement is the acknowledgement, often agreed to by the parties, that the terms of the settlement will remain confidential. It is also understood that there can be situations where the commercial interests involved are important enough to justify an order that documents revealing such matters be sealed.

[4] In Sierra Club of Canada v. Canada (Minister of Finance)[^3], the Government of Canada determined to loan $1.5 billion to a Crown corporation (Atomic Energy of Canada Inc.) to assist in the sale of two nuclear reactors to China. Sierra Club of Canada sought judicial review of this decision. It maintained that the authorization of financial assistance by the government triggered the requirement that an environmental assessment be undertaken. In its absence, the financial arrangements would have to be cancelled. Sierra Club of Canada brought an application for judicial review. The government and AECL opposed it.

[5] In the course of the application, affidavits were filed on behalf of the government. They made reference to confidential documents. Sierra Club of Canada made an application for the production of them. The government refused. The documents belonged to the Chinese authorities. The Chinese agreed that the documents could be disclosed so long as they were protected by a confidentiality order. “In essence, what [was] being sought [was] an order preventing dissemination of the Confidential Documents to the public.”[^4]

[6] The order was refused, first by the Federal Court, Trial Division, and, then, by the Federal Court of Appeal. There was a further appeal to the Supreme Court of Canada which was allowed. The confidentiality order was granted. In arriving at its decision, the Court balanced the various rights and interests engaged:

…I note that the confidentiality order would have substantial salutary effects on the appellant’s right to a fair trial, and freedom of expression. On the other hand, the deleterious effects of the confidentiality order on the principle of open courts and freedom of expression would be minimal. In addition, if the order is not granted and in the course of the judicial review application the appellant is not required to mount a defence under the CEAA there is a possibility that the appellant will have suffered the harm of having disclosed confidential information in breach of its obligations with no corresponding benefit to the right of the public to freedom of expression. As a result, I find that the salutary effects of the order outweigh its deleterious effects, and the order should be granted.[^5]

[7] In coming to this decision, the Court outlined the test that applied. In formulating its approach, the Supreme Court of Canada drew on Dagenais v. Canadian Broadcasting Corp.[^6] and other cases:[^7]

Although that case dealt with the common law jurisdiction of the court to order a publication ban in the criminal law context, there are strong similarities between publication bans and confidentiality orders in the context of judicial proceedings. In both cases a restriction on freedom of expression is sought in order to preserve or promote an interest engaged by those proceedings. As such, the fundamental question for a court to consider in an application for a publication ban or a confidentiality order is whether, in the circumstances, the right to freedom of expression should be compromised.[^8]

[8] The Court determined to “adapt” the “Dagenais model”[^9]: The Court posed a series of questions to be considered in deciding whether a confidentiality order should be made. It concluded that such an order should only be granted when:

(a) such an order is necessary in order to prevent a serious risk to an important interest, including a commercial interest, in the context of litigation because reasonably alternative measures will not prevent the risk; and,

(b) the salutary effects of the confidentiality order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression, which in this context includes the public interest in open and accessible court proceedings[^10]

[9] Three important elements are subsumed under the first branch of the test: (i) the risk must be real and substantial, well grounded in evidence, posing a serious threat to the commercial interest in question; (ii) the important commercial interest must be one which can be expressed in terms of a public interest in confidentiality where there is a general principle at stake; and (iii) the judge is required to consider not only whether reasonable alternatives are available to such an order, but also to restrict the order as much as is reasonably possible while preserving the commercial interest in question.[^11]

Facts in this case

[10] Between 1996 and 1999, the plaintiffs (“Magnotta”) commenced two actions and two applications against the Liquor Control Board of Ontario (“LCBO”). In the actions, Magnotta alleged breach of contract, unlawful interference with contractual relations and defamation. In the applications, it sought declarations of invalidity regarding various LCBO policies concerning winery and brewery retail stores and retail pricing for various types of the liquor. It was alleged that these policies interfered with the model for the production and sale of wine products Magnotta wished to develop.

[11] In 2000, the LCBO and Magnotta arranged to mediate all of the applications and actions between them. A settlement was reached. Minutes of settlement were executed. Mutual releases were exchanged. The actions and applications were dismissed on consent without costs. The terms of the settlement were considered to be commercially sensitive. The Minutes of Settlement contained provisions that required that it be kept confidential. The terms of the settlement were known only to the LCBO, Magnotta and the Alcohol and Gaming Commission of Ontario (“AGCO”) to which jurisdiction over winery retail stores was transferred in 2001.

[12] In 2003, an unidentified party made a request for the production of the mediation and settlement documents, including the Minutes of Settlement, pursuant to the Freedom of Information and Protection of Privacy Act.[^12] The request was opposed by both the LCBO and Magnotta on the basis that the materials were subject to settlement privilege and that their disclosure could be expected to cause harm to the commercial interests of Ontario and the LCBO.

[13] The Information and Privacy Commissioner determined that the records in question, including the Minutes of Settlement, were only partly exempt from disclosure under the Freedom of Information and Protection of Privacy Act. Portions of them were to be disclosed. The LCBO sought judicial review of the decision. The Divisional Court found that the mediation documents, including the Minutes of Settlement, were exempt from disclosure under the Freedom of Information and Protection of Privacy Act and the common law doctrine of settlement privilege.[^13] The decision was upheld by the Court of Appeal.[^14]

[14] On August 22, 2008, Magnotta commenced the current actions against the LCBO and the AGCO. It is said that they challenge “the establishment, application and enforcement of the same winery retail store policies” and advance the same claims as in the litigation which was the subject of the mediation and the settlement. The LCBO has brought a motion, returnable on June 2, 2015, to strike or stay the claims being made by Magnotta on the grounds that they are scandalous, frivolous, vexatious or an abuse of the process of the court.[^15]

[15] In order to advance the motion and to defend the actions, the LCBO wishes to rely on the Minutes of Settlement and releases from the prior litigation while continuing to preserve the confidentiality of the mediated settlement. For that purpose, the LCBO brought a motion for an order sealing those documents. It is said that this is how these documents were treated on the previous judicial review and appeal. Be that as it may, by endorsement, dated March 5, 2015, the motion was dismissed. It is this order for which leave to appeal is sought.

The decision of the motion judge

[16] In his decision, the motion judge identified the accessibility of the public to court proceedings as a “core tenet of the Canadian justice system...” and cited the test set by Sierra Club of Canada v. Canada (Minister of Finance). He noted that the onus was on the LCBO, as the moving party, to demonstrate that the sealing order was necessary.[^16]

[17] In substance, the motion judge determined that the onus had not been met. There was no evidence “...to show that disclosure of the Minutes posed a real and substantial risk to the alleged interests in question”. The motion judge found that it was “apparent” that the affidavit being relied on was “significantly lacking”. The LCBO had not demonstrated a public interest in confidentiality over the Minutes. He concluded that “...there simply has been very little against which to balance the principle of the open court”.[^17]

Leave to appeal

[18] The tests on a motion for leave to appeal are well-known. They are found in r. 62.02(4) of the Rules of Civil Procedure. One of two tests, each of which includes two requirements, must be satisfied. Leave to appeal will be granted if there is a conflicting decision and, in the opinion of the judge hearing the motion, it is desirable that leave be granted. In the alternative, leave to appeal will be granted where there is good reason to doubt the correctness of the order and that the proposed appeal involves matters of such importance that, in the opinion of the judge, leave to appeal should be granted.

Analysis

[19] It was submitted, on behalf of the LCBO, that there were cases which conflict with the decision of the motion judge. Generally, it is understood that, for a case to conflict in a fashion to which the rule applies, there has to be a difference in the legal principle chosen or applied by the judge to the legal issue at hand or to guide the exercise of the discretion of the court.[^18]

[20] Counsel for the LCBO, the moving party, began by referring to the decisions of this court and the Court of Appeal in respect of the judicial review taken from the decision of the Information and Privacy Commissioner. These are not, strictly speaking, conflicting cases. They concern exactly the same documents and essentially the same parties.[^19] It is fair to observe that, on their face, those cases dealt with a different concern. The production of the material was dealt with by legislation, the Freedom of Information and Protection of Privacy Act, which is driven by its own process and policy concerns.[^20] This being said, the decisions referred to reflect on the common law principle of “settlement privilege” and its impact on the specific Minutes of Settlement that are before this court, albeit in the context of exemptions raised by s. 19 of the Freedom of Information and Protection of Privacy Act.[^21] The conclusion of the Divisional Court is well-summarized in the head note that accompanies the report of its decision:

Common law settlement privilege exempted the disputed records from disclosure. The disputed records originated in confidence and were the subject of a strong confidentiality agreement. Such confidentiality was essential to meaningful settlement discussions. The public interest supported confidentiality of settlement discussions in order to assure the effectiveness of the process. In this instance, the public interest in preserving such confidentiality interests outweighed the interest in disclosure of government records.[^22]

[21] The Court of Appeal upheld the decision of the Divisional Court, but determined that, in the circumstances, it was not necessary to decide whether the common law privilege applied to the disputed records:

… Whether common law settlement privilege is a free-standing exemption under FIPPA or whether FIPPA is a complete code is a complex, serious question that is better decided in a case that depends on the answer to that question.[^23]

[22] It could be said that the decisions on the judicial review and subsequent appeal conflict with the decision of the motion judge. It could also be said that the determination to protect the documents while leaving unanswered the question of whether there is a free-standing right to rely on the principle of settlement privilege leaves doubt as to the correctness of that decision. Either way, the first part of one, or both, of the two tests found in r. 62.02(4) is satisfied. The second element of both tests is also satisfied. The issue of the proper parameters of when a sealing order should issue reaches beyond the boundaries of this case. In my opinion, it is desirable, and the proposed appeal involves matters of such importance, that leave should be granted.

[23] In any event, counsel for the LCBO proposed there were other cases that conflict with the decision of the motion judge. It is submitted that the decision is in conflict with Sable Offshore Energy Inc. v. Ameron International Corp.[^24] and with Hollinger Inc. (Re).[^25] It is proposed that these cases stand as a demonstration that “settlement privilege” is a class privilege. Once it is established that settlement privilege applies, there is no need to go further and examine the individual circumstances. In the context of this case, this suggests that the reliance by the motion judge on the absence of sufficient evidence is not the appropriate approach. All that is necessary is a proper reliance on the privilege. In the context of the tests that, relying on Sierra Club of Canada v. Canada (Minister of Finance apply, it would mean there is no need to go beyond the bare requirement of the first test (“a serious risk to an important interest”).[^26] There would be no purpose in going on to consider the three questions said to subsumed in that first branch.[^27] The fact of the proper application of the privilege would be enough.

[24] In the first of the two cases, the plaintiff (Sable Offshore Energy Inc.) sued a number of defendants who had prepared surfaces and applied paint to certain structures and facilities with the expectation that it would prevent corrosion. It was alleged that it did not. Sable entered into Pierringer agreements with some of the defendants. This allowed those defendants to withdraw from the litigation while those that remained continued to be responsible for the loss they actually caused. The terms of the agreements were disclosed to the remaining defendants with the exception of the amounts the parties settled for. The remaining defendants sought disclosure of those amounts. The trial judge dismissed the application concluding that the value of the settlements was covered by settlement privilege. The Nova Scotia Court of Appeal overturned that decision and ordered the amounts disclosed. The further appeal to the Supreme Court of Canada was allowed.

[25] The Supreme Court of Canada found that “promoting settlement was ‘sound judicial policy’ that ‘contributes to the effective administration of justice’”.[^28] It went on to observe that: “As the weight of jurisprudence confirms, [settlement privilege] is a class privilege... ”. As such, there is “...a prima facie presumption of inadmissibility...”, but “...exceptions will be found ‘when the justice of the case requires it’.”[^29] Accordingly, while it would seem that “settlement privilege” is a class privilege, this does not necessarily mean that it will be inexorably applied to withhold the disclosure of documents or information to which it applies. It seems logical to presume that while the onus of proving the application of the settlement privilege would lie on the party seeking to rely on it (LCBO), the reverse would be true where a party seeks to demonstrate that its apparent application should be denied because the justice of the case requires it (Magnotta). In other words, the onus would be the reverse of that referred to by the motion judge when he faulted the LCBO for failing to provide evidence sufficient to set aside the principle of openness in the processes of the court.

[26] In the second of the two cases (Hollinger), the company for which the case is named had been granted protection under the Companies’ Creditor Arrangement Act.[^30] (“CCAA”) The order appointed a Litigation Trustee to deal with the assets available to the creditors of Hollinger. For the most part, the assets consisted of its claims against former officers, directors and advisers. One of them, Conrad Black, asserted claims against Hollinger within the CCAA proceedings, as well as claims for contribution and indemnity against a law firm and accounting firm that were among Hollinger’s advisers. Settlement discussions and mediations between Hollinger, the Litigation Trustee, the law firm and the accounting firm led to settlements which required the approval of the court. The draft settlement agreements were circulated to all parties, but the amounts to be paid by way of settlement were redacted. A motion was brought before the judge dealing with CCAA proceedings for a sealing order. Conrad Black opposed the motion.

[27] The motion judge found that “litigation settlement privilege” applied to the terms of the two settlement agreements. He concluded that the onus to establish that a sealing order protecting the confidentiality of the amounts of the settlement was in the public interest had been met. The sealing order provided that any non-settling party could have access to the redacted information (the amounts) by signing a confidentiality agreement only to use that information in the settlement approval proceeding.

[28] There was an appeal to the Court of Appeal.

[29] On the appeal, the settling parties conceded that they would place no reliance on the idea that the redacted terms of the settlements were “commercially sensitive”. For his part, Conrad Black conceded that his attack rested solely on the “open court principle”. In effect, the parties agreed they were not going to look beyond or behind the applicability of settlement privilege to argue whether the decision to allow for the sealing order should remain in place. The appeal was dismissed on the basis that:

…litigation settlement privilege constitutes a social value of superordinate importance.[^31]

[30] The Court concluded that:

… it was open to the motion judge to conclude under the Sierra test that the salutary effects of the sealing order outweighed its deleterious effects on the important right to free expression and the public interest in open and accessible court proceedings.[^32]

[31] Similar to what the motion judge did in this case, the Court of Appeal found that the evidence led in support of the sealing order was limited. It was nothing more than a bald statement that, in the event that the settlements were not approved, full disclosure of the terms of the settlement agreement would undermine the Litigation Trustee’s initiatives with respect to the litigation with the law firm and the accounting firm.[^33] Unlike the motion judge in this case, the Court of Appeal concluded that:

… in light of the strong public policy favouring settlements and the recognized privilege that protects the confidentiality of settlement discussions, the motion judge did not err in concluding that the evidence was sufficient to satisfy the onus under the Sierra test.[^34]

[32] The Court of Appeal was satisfied that the applicability of “settlement privilege” was enough to find that a sealing order was appropriate.

[33] These cases confirm both that there are cases that conflict with the decision of the motion judge and that there is reason to doubt the correctness of that decision. I repeat what has already been said. It is my opinion, as the judge hearing the motion, that it is desirable and the matters involved are of such importance that leave to appeal should be granted.

[34] I should note that, on the judicial review following the decision of the Information and Privacy Commissioner, the Divisional Court concluded that “settlement privilege” was not a class privilege and, thus, where such a claim was relied on, an individual review of each case (“a case by case review”) would be required.[^35] At first, this would seem to confuse the issue. I point out that the decision of the Divisional Court predates that of the Supreme Court of Canada, in Sable Offshore Energy Inc. v. Ameron International Corp., where it was found that settlement privilege is a class privilege.

[35] Finally, in Sierra Club of Canada v. Canada (Minister of Finance), the Supreme Court of Canada observed that, if the sealing order was not granted, and if, during the course of the judicial review it was not necessary that the government mount a full defence, the government would have suffered the harm of disclosing confidential information in breach of its obligations with no corresponding benefit to the right of the public to freedom of expression.[^36] The same could be said in this case. If the government was forced to disclose the Minutes of Settlement and its motion to strike succeeds, our desire to encourage settlement would be impinged without any corresponding benefit to the freedom of expression or the openness of the court.

[36] To my mind, this confirms the need for further consideration and the benefit of an appeal.

Interim Relief

[37] On a motion for leave to appeal, the court hearing the motion or the court to which the appeal is subsequently taken may make any interim order that is considered just to prevent prejudice to the party pending the appeal.[^37] Where the failure to grant an interim sealing order would frustrate a proposed appeal and render it moot by making public the very documents in issue, an interim sealing order should be granted to protect the confidentiality of the records in issue pending determination of a motion for leave to appeal and, if leave is granted, the appeal.[^38]

[38] In this case, submissions were made on behalf of the LCBO seeking an interim order maintaining the confidentiality of the documents in issue. Magnotta does not oppose the request for an interim order.

Conclusion

[39] Leave to appeal is granted.

[40] An interim order is made that the portions of the LCBO’s materials on its sealing motion identified as “CONFIDENTIAL”, being the materials filed in a sealed envelope and marked as Exhibit “C” to the Affidavit of Jordan Glick, sworn December 23, 2014, and the materials filed in a sealed envelope and marked as Exhibit “A” to the Supplementary Affidavit of Jordan Glick, sworn January 12, 2015, shall be treated as confidential, sealed and shall not form part of the public record until further order of this court.

Costs

[41] There is no reason why costs should not follow the event.

[42] Accordingly, costs of the motion for leave to appeal are awarded to the moving parties (AGCO, LCBO and Her Majesty the Queen in Right of Ontario), payable by the responding parties, the plaintiffs (Magnotta). A Bill of Costs (“Amounts Claimed for Fees and Disbursements”) was filed on behalf of Magnotta. It claims ($8,007.18 for fees + $700.29 for disbursements) $8,707.47. In an assessment of costs, those that would have been claimed by the losing party, had it succeeded, provide some indication as to what that party would reasonably anticipate it would have to pay should it have costs awarded against it. This motion was heard in writing. Counsel did not appear. I acknowledge that this matter had some complication attached to it. Nonetheless, the costs that would have been requested by Magnotta are too high.

[43] I award costs to the moving parties, payable by Magnotta, in the amount of $4,000.

LEDERER J.

Date: 20150423

[^1]: Sierra Club of Canada v. Canada (Minister of Finance), [2002] 2 SCR 522, 2002 SCC 41, 211 DLR (4th) 193; 18 CPR (4th) 1; 287 NR 203; 44 CELR (2d) 161; 40 Admin LR (3d) 1; [2002] FCJ No 42 (QL); [2002] SCJ No 42 (QL); 113 ACWS (3d) 36; 223 FTR 137; 93 CRR (2d) 219, at para. 1.

[^2]: Ibid, at para. 52.

[^3]: Ibid, (fn. 1).

[^4]: Ibid, at para. 7.

[^5]: Ibid, at para. 91.

[^6]: [1994] 3. S.C.R. 835.

[^7]: See, for example, R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442; and, Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480;

[^8]: Sierra Club of Canada v. Canada (Minister of Finance), supra, (fn. 1), at para. 37.

[^9]: Ibid, at para. 48.

[^10]: Ibid, at para. 53.

[^11]: Ibid, at paras. 54-57. In outlining these three elements, the court referred to and relied on R. v. Mentuck, supra, (fn. 6).

[^12]: R.S.O. 1990, c. F. 31.

[^13]: Ontario (Liquor Control Board) v. Magnotta Winery Corp., [2009] O.J. No. 2980 (Div. Ct.).

[^14]: Ontario (Liquor Control Board) v. Magnotta Winery Corp., 2010 ONCA 681, [2010] O.J. No. 4453 (C.A.).

[^15]: Rules of Civil Procedure, R.R.O 1990, O. Reg. 194, r. 21.01(3)(d).

[^16]: Magnotta Winery Corporation v. Ontario (Alcohol and Gaming Commission 2014 ONSC 1453, at paras. 6 and 7.

[^17]: Ibid, at para. 8.

[^18]: Benincasa v. Agostino, [2008] O.J. No. 4172 (Ont. S.C.J.), at para. 12; and, Kassian Estate v. Canada (Attorney General), 2013 ONSC 892, [2013] O.J. No. 846, at para. 6.

[^19]: The ACGO was not named as a party in those cases. They concerned a time before it took over responsibility for winery retail stores.

[^20]: “[T]he broad intention of the [Freedom of Information and Protection of Privacy Act] is to offer transparency to government functioning with exceptions where the interests of public knowledge are overbalanced with other concerns” (Ontario (Liquor Control Board) v. Magnotta Winery Corp., supra, (fn. 13) (Div. Ct.), at para. 68, quoting from Ontario (Attorney General) v. Ontario (Information and Privacy Commission, Inquiry officer) (2002), 62 O.R. (3d) 167, at para. 14 (C.A.)).

[^21]: At the relevant time, s. 19 of the Freedom of Information and Protection of Privacy Act read, as follows:

A head may refuse to disclose a record that is subject to solicitor-client privilege or that was prepared by or for Crown counsel for use in giving legal advice or in contemplation of or for use in litigation.

(Ontario (Liquor Control Board) v. Magnotta Winery Corp., supra, (C.A.), at para. 21).

[^22]: Ontario (Liquor Control Board) v. Magnotta Winery Corp., supra, (fn. 13)(Div. Ct.).

[^23]: Ontario (Liquor Control Board) v. Magnotta Winery Corp. supra (C.A.), at para. 48.

[^24]: 2013 SCC 37, [2013] 2 S.C.R. 623.

[^25]: 2011 ONCA 579, [2011] O.J. No. 3977.

[^26]: see: para. [ ], above.

[^27]: see: para. [ ], above.

[^28]: Sable Offshore Energy Inc. v. Ameron International Corp., supra, (fn. 23), at para. 11, relying on Kelvin Energy Ltd. v. Lee, [1992] 3 S.C.R. 235, at p. 259.

[^29]: Ibid, at para. 12, relying on Rush & Tompkins Ltd. v. Greater London Council, [1988] 3 All E.R. 737 (H.L.), at p. 740.

[^30]: R.S.C. 1985, c. C-85.

[^31]: Hollinger Inc. (Re), supra, (fn. 24), at para. 20.

[^32]: Ibid, at para. 21.

[^33]: Ibid, at para. 22.

[^34]: Ibid, at para. 22.

[^35]: Ontario (Liquor Control Board) v. Magnotta Winery Corp., supra, (fn. 13) (Div. Ct.), at paras.45-47 and 51.

[^36]: Sierra Club of Canada v. Canada (Minister of Finance), supra, (fn. 1), at para. 91.

[^37]: Courts of Justice Act, R.S.O. 1990 Ch. C. 43, r. 134(2) and r. 137(2).

[^38]: R. v. Church of Scientology of Toronto, [1986] O.J. No. 15 (C.A.).