DATE: 20011123 DOCKET: C35724 C35712

COURT OF APPEAL FOR ONTARIO

RE:

KERRY PAQUETTE, DEAN PAQUETTE, DWAYNE PAQUETTE and JASON PAQUETTE (Plaintiffs (Respondents)) – and – FATHER ALBERT DESROCHERS (Defendant (Appellant)) – and – THE ROMAN CATHOLIC EPISCOPAL CORPORATION OF THE DIOCESE OF TIMMINS and THE ORDER OF LES PERES SERVITES DE MARIE DE QUEBEC (Defendants (Respondents)) – and – RAYMOND PAQUETTE, NORMA PAQUETTE AND THE ATTORNEY GENERAL OF ONTARIO (Third Parties by Father Albert Desrochers and Les Pères Servites de Marie de Québec (Respondents))

AND

RE:

KERRY PAQUETTE, DEAN PAQUETTE, DWAYNE PAQUETTE and JASON PAQUETTE (Plaintiffs (Respondents)) – and – FATHER ALBERT DESROCHERS and THE ROMAN CATHOLIC EPISCOPAL CORPORATION OF THE DIOCESE OF TIMMINS (Defendants (Respondents) – and – THE ORDER OF LES PERES SERVITES DE MARIE DE QUEBEC (Defendant (Appellant)) – and – RAYMOND PAQUETTE, NORMA PAQUETTE AND THE ATTORNEY GENERAL OF ONTARIO (Third Parties by Father Albert Desrochers and Les Pères Servites de Marie de Québec (Respondents))

BEFORE:

CARTHY, GOUDGE AND CRONK JJ.A.

COUNSEL:

Matthew J. Halpin For the appellant Father Albert Desrochers

Charles M. Gibson and Thomas F. Wallis For the appellant The Order of les Pères Servites de Marie de Québec

Luba Kowal For the respondent The Attorney General of Ontario

HEARD:

November 15, 2001

On appeal from the order of Justice Colin McKinnon dated December 28, 2000.

E N D O R S E M E N T

[1] This appeal began as a Rule 21 motion to strike the third party claims as disclosing no cause of action. The test is thus the “plain and obvious” standard set out in Hunt v. Carey Canada, which makes clear that this test properly extends to difficult and novel points of law in order to permit the evolution of the common law.

[2] In our view, the motions judge made several errors in disposing of the issues before him at the pleadings stage of this action.

[3] First, the motions judge found that as a matter of public policy the Attorney General can never be subject to a fiduciary obligation in the exercise of the prosecutorial function. The categories of fiduciary should not be considered closed, but rather depend on the facts of the particular relationship. See Guerin v. The Queen, 1984 25 (SCC), [1984] 2 S.C.R. 335. It is thus premature to strike the fiduciary duty claim at this stage simply because of the identity of the alleged fiduciary. Rather, the fiduciary question should be answered once the facts surrounding the relationship between the plaintiffs and the prosecutor are fleshed out. At this stage the existence of a fiduciary duty must be accepted as pleaded.

[4] Second, the motions judge dismissed the malicious failure to prosecute claim because he found this claim incapable of proof. We do not comment in any way on the correctness of his finding that a cause of action for malicious failure to prosecute exists. This was not contested before us. We are, however, of the view that the motions judge erred in finding the claim incapable of proof. He clearly relied on the affidavit evidence in coming to this conclusion and it is agreed by all parties before us that he ought not to have done so, given that this motion proceeded pursuant to rule 21.1(b). Moreover, there is nothing in the pleadings of the malicious motive of the Crown or the harm said to result from the malicious failure to prosecute that would meet the test in Operation Dismantle v. the Queen, 1985 74 (SCC), [1985] 18 D.L.R. (4th) 481, namely whether proof is inherently impossible.

[5] The Crown seeks to sustain the result below on the basis that the doctrine of ex turpi causa bars the third party claim and the motions judge erred in finding otherwise. We agree with the motions judge that this doctrine is inapplicable here where the defendants are claiming contribution and indemnity from the third party for the third party’s own alleged wrongdoing towards the plaintiffs. This is not a case where the defendants genuinely seek to profit from their illegal conduct but, rather, one where they seek to equitably apportion the plaintiffs’ loss over their own and the third party’s illegal conduct.

[6] The Crown also says that the appellants cannot claim the benefit of the Negligence Act to obtain contribution and indemnity on the basis of the third party’s alleged fiduciary breach or malicious failure to prosecute. In our view, while the appellants’ claim may be novel, in light of the use of the language of “fault” in the Act it is not plain and obvious that the appellants’ claim does not come within the Negligence Act.

[7] The appellants are not seeking to set aside the finding that the claims based on Charter breaches must be struck.

[8] In the result, while these third party proceedings may not succeed at trial, or even survive a motion for summary judgment, we are of the view that the fiduciary duty and malicious failure to prosecute claims were wrongly struck at the pleadings stage. To that extent the appeal is allowed. The cross-appeal is dismissed. Costs to the appellants in the cause.

“J.J. Carthy J.A.”

“S.T. Goudge J.A.”

“E.A. Cronk J.A.”