DATE: 20021003 DOCKET: C37095

COURT OF APPEAL FOR ONTARIO

RE: RONALD BLUMAS (Plaintiff/Appellant) – and – THE INSTITUTE OF CHARTERED ACCOUNTANTS OF ONTARIO, DESMOND ALEXANDER GIBB and GRANT FRASER DICKSON (Defendants/Respondents)

BEFORE: MORDEN, BORINS and SIMMONS JJ.A.

COUNSEL: Robert D. Peck for the defendants

Ronald Blumas in person

HEARD: September 27, 2002

RELEASED ORALLY: September 27, 2002

On appeal from the order of Justice Eileen E. Gillese dated July 13, 2001.

E N D O R S E M E N T

[1] [1] The motions judge dismissed the action on the basis that the statement of claim failed to disclose a reasonable cause of action under rule 21.01(1)(b). It is clear from the terms of rule 21.02(b) that the only facts which may be taken into account on such a motion are those alleged in the statement of claim. In this case the motions judge took several documents not referred to in the statement of claim into account in arriving at her ultimate conclusion.

[2] [2] In this process she made findings of fact. For example, in paragraph 22 of her reasons she said that it was “clear that there was a legitimate basis upon which re-inspection could be ordered and that the ICAO responded to the plaintiff’s repeated requests for information.” She considered the likely result of a trial on the basis of her interpretation of the documents in the limited context in which they were before her on the motion. These documents included, in addition to some possibly referred to in the statement of claim, documents filed by the defendants to which no reference was made in the statement of claim.

[1] [3] The respondents place substantial reliance on the fact that the documents that they filed on the motion were not objected to by the appellant. This causes us some concern but, ultimately, we do not think that it is an answer to the misapplication of the rule under which the order was made.

[2] [4] In the result, it is our view that the action should be allowed to proceed to trial but only on the claim for damages based on the alleged abuse of statutory authority.

[3] [5] The appeal is allowed and the order of the motions judge is varied to strike out all of the claims in the statement of claim except the claim based on the alleged abuse of statutory authority.

[4] [6] In view of the divided success on the appeal there will be no order as to costs of the motion or the appeal.

“J.W. Morden J.A.”

“S. Borins J.A.

“Janet Simmons J.A.