Court File and Parties

CITATION: Rainbow Concrete Industries Limited v. Anderson, 2011 ONCA 648

DATE: 20111017

DOCKET: C53682

COURT OF APPEAL FOR ONTARIO

Doherty, Weiler and Cronk JJ.A.

BETWEEN

Rainbow Concrete Industries Limited

Plaintiff (Appellant)

and

Ian Anderson and International Union of Operating Engineers, Local 793

Defendants (Respondents)

Counsel:

Marvin J. Huberman, for the plaintiff (appellant)

Sara Blake and Kristin Smith, for the defendant (respondent), Anderson

Heard and released orally: October 11, 2011

On appeal from the order of Justice B.A. Conway of the Superior Court of Justice, dated April 12, 2011.

ENDORSEMENT

[1] There are essentially two issues raised on this appeal. The first raises the adequacy of the pleadings and the second is concerned with whether the respondent is immune from suit by virtue of his position. The latter issue need only be decided if the pleadings are adequate. The motion judge did not decide the immunity issue.

[2] The argument put by the plaintiff is that there are certain specific allegations with respect to procedural errors pleaded that could support the inference that the respondent acted out of malice or bad faith. The respondent argues that even if those alleged procedural irregularities occurred, they simply do not go so far as to justify any reasonable inference of malice or bad faith. The respondent argues the pleading is, therefore, inadequate.

[3] There is also an argument that depending on the results of the pending judicial review applications in the Divisional Court, some or all the facts alleged by the plaintiff in support of malice and bad faith may become the subject of issue estoppel or res judicata. The respondent argues that if the plaintiff is estopped from making certain allegations, then the pleading is manifestly inadequate and the appeal should be dismissed.

[4] The decision in the Divisional Court is on reserve. It would appear from the judicial review applications that the plaintiff has raised many, if not all, of the same procedural errors in those proceedings as he had advanced in his pleading here.

[5] We think the prudent thing to do is to adjourn this appeal to await the result of the proceedings in the Divisional Court. Whatever the Divisional Court decides, it may assist this court in determining whether there is any basis upon which the appellant’s pleading can survive. It is only if the pleading survives that we need address the immunity submission.

[6] The appeal will be adjourned. When the Divisional Court has released its reasons, we will rely on counsel to contact a member of this panel to discuss the appropriate manner in which we should proceed from there.

“Doherty J.A.”

“K.M. Weiler J.A.”

“E.A. Cronk J.A.”