Canadian Imperial Bank of Commerce et al. v. Deloitte & Touche et al.

[Indexed as: Canadian Imperial Bank of Commerce v. Deloitte & Touche]

Ontario Reports

Court of Appeal for Ontario,

Doherty, Goudge and Lauwers JJ.A.

February 3, 2014

118 O.R. (3d) 508 | 2014 ONCA 89

Case Summary

Professions — Chartered accountants — Disciplinary proceedings — Exclusionary rule in s. 61 of Chartered Accountants Act, 2010 (which renders material relating to professional discipline proceedings involving Institute of Chartered Accountants of Ontario inadmissible in most civil proceedings) not applying to material relating to discipline proceedings conducted under predecessor Act — Chartered Accountants Act, 2010, S.O. 2010, c. 6, Sch. C, s. 61 — Chartered Accountants Act, 1956, S.O. 1956, c. 7.

The plaintiffs brought an action alleging that the defendant was negligent in preparing the annual statements of P Corp. for 1995 and 1996. In 1998, about two years before the litigation began, the Institute of Chartered Accountants commenced an investigation into defendant's audits of P Corp. for the years in question. In 2007, the institute brought charges against the defendant's senior partner responsible for the audits, and in 2008, the senior partner was found guilty of professional misconduct. All of the disciplinary proceedings were conducted under the Chartered Accountants Act, 1956 (the "CAA, 1956"). In 2010, the Chartered Accountants Act, 2010 (the "CAA, 2010") came into force. Section 61 of the CAA, 2010 renders material relating to professional discipline proceedings involving the institute inadmissible in most civil proceedings. The CAA, 1956 contained no equivalent provision. The motion judge held that while, on a plain reading, s. 61 applied only to material relating to proceedings under the CAA, 2010, properly interpreted, s. 61 reached material relating to discipline proceedings conducted under the CAA, 1956. In making that finding, he relied on four factors: the principle that procedural rules operate retrospectively; the principle that the legislature does not intend a meaning that defeats the purpose of the statute; the significance to the interpretation of s. 61 of the other references to the CAA, 1956 in the CAA, 2010; and the significance of the unusual circumstances of this case. The plaintiffs appealed. [page509]

Held, the appeal should be allowed.

Section 61 of the CAA, 2010 refers to the inadmissibility of a "record of a proceeding under this Act". On a plain reading, s. 61 applies only to material relating to proceedings under the CAA, 2010. None of the factors identified by the motion judge justified a departure from the plain meaning of the words in s. 61. Rules of evidence are generally regarded as procedural and subject to the presumption of immediate application. The presumption of immediate application meant that s. 61 applied to this action, but the presumption said nothing about whether material relating to the discipline proceedings conducted under the CAA, 1956 was excluded by s. 61. The purpose of s. 61 was the creation of an evidentiary barrier preventing the use of material relating to a "proceeding under this Act" in civil proceedings. The plain reading of s. 61 did not defeat the purpose of s. 61 or produce results that were arbitrary having regard to the purpose of s. 61. The reference to the CAA, 1956 in the other sections of the CAA, 2010 did not help the defendant's contention that the plain meaning of s. 61 had to be abandoned in favour of a meaning that included material relating to the CAA, 1956. The motion judge did not refer to any authority for the proposition that unusual circumstances may affect the interpretation of a statutory provision. In any event, there was nothing unusual about the circumstances of this case that was relevant to the interpretation of s. 61.

Cases referred to

CIBC v. Deloitte & Touche, [2013] O.J. No. 559, 2013 ONSC 917, 1 C.B.R. (6th) 66, 225 A.C.W.S. (3d) 390 (S.C.J.); F. (M.) v. S. (N.), 2000 5761 (ON CA), [2000] O.J. No. 2522, 188 D.L.R. (4th) 296, 134 O.A.C. 117, 44 C.P.C. (4th) 193, 98 A.C.W.S. (3d) 59 (C.A.); Penner v. Niagara (Regional Police Services Board), [2013] 2 S.C.R. 125, [2013] S.C.J. No. 19, 2013 SCC 19, 304 O.A.C. 106, 442 N.R. 140, 2013EXP-1164, J.E. 2013-639, EYB 2013-220248, 49 Admin. L.R. (5th) 1, 32 C.P.C. (7th) 223, 356 D.L.R. (4th) 595, 226 A.C.W.S. (3d) 139; R. v. Bickford, 1989 7238 (ON CA), [1989] O.J. No. 835, 34 O.A.C. 34, 51 C.C.C. (3d) 181, 48 C.R.R. 194 (C.A.); R. v. Dineley, [2012] 3 S.C.R. 272, [2012] S.C.J. No. 58, 2012 SCC 58, 268 C.R.R. (2d) 339, 297 O.A.C. 50, 2012EXP-3885, J.E. 2012-2080, 436 N.R. 59, 34 M.V.R. (6th) 1, 96 C.R. (6th) 359, 290 C.C.C. (3d) 190, 104 W.C.B. (2d) 439, 353 D.L.R. (4th) 236; R. v. E. (A.W.), 1993 65 (SCC), [1993] 3 S.C.R. 155, [1993] S.C.J. No. 90, 156 N.R. 321, J.E. 93-1579, 12 Alta. L.R. (3d) 1, 141 A.R. 353, 83 C.C.C. (3d) 462, 23 C.R. (4th) 357, 20 W.C.B. (2d) 427; R. v. Hajivasilis (2013), 114 O.R. (3d) 337, [2013] O.J. No. 253, 2013 ONCA 27, 302 O.A.C. 65, 41 M.V.R. (6th) 175, 104 W.C.B. (2d) 1210; R. v. Wildman, 1984 82 (SCC), [1984] 2 S.C.R. 311, [1984] S.C.J. No. 43, 12 D.L.R. (4th) 641, 55 N.R. 27, 5 O.A.C. 241, 14 C.C.C. (3d) 321, 13 W.C.B. 19; Reference re Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168, [2012] 3 S.C.R. 489, [2012] S.C.J. No. 68, 2012 SCC 68, 437 N.R. 124, 2012EXP-4364, J.E. 2012-2311, EYB 2012-215249, 352 D.L.R. (4th) 433, 106 C.P.R. (4th) 241, 221 A.C.W.S. (3d) 315; Rizzo & Rizzo Shoes Ltd. (Re) (1998), 1998 837 (SCC), 36 O.R. (3d) 418, [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, 154 D.L.R. (4th) 193, 221 N.R. 241, J.E. 98-201, 106 O.A.C. 1, 50 C.B.R. (3d) 163, 33 C.C.E.L. (2d) 173, 98 CLLC Â210-006, 76 A.C.W.S. (3d) 894; Wood v. Schaeffer, [2013] S.C.J. No. 71, 2013 SCC 71, 452 N.R. 286, 312 O.A.C. 1, 2014EXP-11, J.E. 2014-8, EYB 2013-230835

Statutes referred to

Accounting Professions Act, 2010, S.O. 2010, c. 6

Chartered Accountants Act, 1956, S.O. 1956, c. 7

Chartered Accountants Act, 2010, S.O. 2010, c. 6, Sch. C, ss. 33-39, 38(4), 58-60, 61, 63(2), 65, 66 [page510]

Legislation Act, 2006, S.O. 2006, c. 21, Sch. F, s. 52, (4)

Regulated Health Professions Act, 1991, S.O. 1991, c. 18 [as am.]

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 26.01

Authorities referred to

Sullivan, Ruth L., Sullivan on the Construction of Statutes, 5th ed. (Markham, Ont.: LexisNexis, 2008)

APPEAL from the order of Perell J., [2013] O.J. No. 1669, 2013 ONSC 2166 (S.C.J.).

Thomas J. Dunne, Q.C., John Callaghan and Joe Thorne, for plaintiffs (appellants) Canadian Imperial Bank of Commerce et al.

Robb C. Heintzman, Michael Schafler and Mark Evans, for defendants (respondents) Deloitte & Touche et al.

Brian P. Bellmore and Paul F. Farley, for intervenor Institute of Chartered Accountants of Ontario.

The judgment of the court was delivered by

DOHERTY J.A.: —

I

Overview

[1] This appeal turns on the proper interpretation of s. 61 of the Chartered Accountants Act, 2010, S.O. 2010, c. 6, Sch. C ("CAA, 2010"):

61. No record of a proceeding under this Act and no document or thing prepared for or statement given at such a proceeding and no decision or order made in such a proceeding is admissible in any civil proceeding, other than a proceeding under this Act or a judicial review relating to a proceeding under this Act.

[2] Broadly speaking, s. 61 renders material relating to professional discipline proceedings involving the Institute of Chartered Accountants of Ontario (the "Institute") inadmissible in most civil proceedings. The motion judge held that while, on a plain reading, s. 61 applied only to material relating to proceedings under the CAA, 2010, properly interpreted, s. 61 reached material relating to discipline proceedings conducted under the Chartered Accountants Act, 1956, S.O. 1956, c. 7 ("CAA, 1956"), the predecessor legislation to the CAA, 2010.

[3] I agree with the motion judge that, on a plain reading, s. 61 applies only to material relating to proceedings under the CAA, 2010. I also agree that the interpretative exercise [page511] does not begin and end with the words of the statute being interpreted.

[4] I cannot, however, agree that the principles of statutory interpretation, as applied to s. 61, yield a meaning other than the plain meaning. In my view, while s. 61 creates a rule of evidence that applies in this action, materials relating to proceedings under the CAA, 1956 do not fall within the exclusionary rule created by s. 61. The section means what it says. The phrase "proceedings under this Act" refers to proceedings under the CAA, 2010 and not proceedings under any other Act, including the CAA, 1956. I would allow the appeal.

II

Background

[5] The relevant facts are set out by the motion judge and need only a brief summary here. The underlying litigation commenced 14 years ago and now a class proceeding, involves allegations that the respondent Deloitte & Touche ("Deloitte") was negligent in preparing the 1995 and 1996 annual statements of Philip Services Corp. ("Philip"). The claim alleges that Deloitte's negligence caused significant financial loss to Philip and various lenders, including the Canadian Imperial Bank of Commerce ("CIBC"), who advanced funds on the strength of those audited financial statements.

[6] In 1998, about two years before this litigation began, the Institute commenced an investigation into Deloitte's audit of Philip for the years 1995 and 1996. In 2007, the Institute brought charges against Noel Woodsford, the senior partner at Deloitte responsible for the 1995 and 1996 audits. A hearing was held and, in 2008, Mr. Woodsford was found guilty of professional misconduct for failing to properly supervise the audits and failing to maintain relevant records of the audits. The discipline committee's reasons for its findings were released in July 2009. All of the discipline proceedings were conducted under the auspices of the CAA, 1956.

[7] The CAA, 2010 came into force in May 2010, almost a year after the discipline committee had released its reasons for finding Mr. Woodsford guilty of professional misconduct. Section 66 of the CAA, 2010 repealed the CAA, 1956.

[8] At some point during the discoveries of Deloitte, counsel for the plaintiffs (appellants in this court) asked questions about the information provided to and generated by the Institute in the discipline proceedings against Mr. Woodsford. Those questions were met with refusals, which, in turn, precipitated a motion to [page512] compel answers: see CIBC v. Deloitte & Touche, [2013] O.J. No. 559, 2013 ONSC 917 (S.C.J.).

[9] The plaintiffs brought a further motion to amend their statement of claim to set out a history of the discipline proceedings and the findings made against Mr. Woodsford: see CIBC v. Deloitte & Touche, at para. 107. The facts pleaded in the proposed amendments were put forward as a basis for the plaintiffs' claim that Deloitte was estopped by the findings in the discipline proceedings from challenging in this lawsuit the plaintiffs' allegation that Deloitte had failed to abide by the rules of professional conduct in the 1995 and 1996 audits of Philip. This appeal is not concerned with the merits of the estoppel argument.

III

The Reasons of the Motion Judge

[10] The motion judge began by explaining the relevance of the proper interpretation of s. 61 of the CAA, 2010 to the motion to amend the pleadings. He reasoned that, if s. 61 rendered the material relating to Mr. Woodsford's discipline proceedings inadmissible in the action, the proposed amendments to the statement of claim referring to the discipline proceedings and related material would be "legally untenable" and must be refused: see F. (M.) v. S. (N.), 2000 5761 (ON CA), [2000] O.J. No. 2522, 188 D.L.R. (4th) 296 (C.A.), at p. 310 D.L.R. He further reasoned that, if s. 61 did not exclude from evidence the material relating to Mr. Woodsford's discipline proceedings, the amendments should be allowed, given the very broad mandatory language in rule 26.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 governing amendments to pleadings. No one takes issue with this part of the motion judge's analysis.

[11] The motion judge next moved to an interpretation of s. 61 of the CAA, 2010. He referred to the plaintiffs' argument that the words "a proceeding under this Act" in s. 61 could only refer to a proceeding under the CAA, 2010 and said, at para. 117:

The Defendants do not dispute, and I agree with the Plaintiffs that giving s. 61 its literal and plain meaning, it does not apply to proceedings under the Chartered Accountants Act, 1956.

[12] Ultimately, however, the motion judge rejected the plain meaning of s. 61 in favour of a meaning that extended the reach of s. 61 to proceedings conducted under the CAA, 1956. He gave four reasons for doing so: [page513]

The express reference to the CAA, 1956 in other sections of the CAA, 2010 was no reason for "inferring that the 1956 Act was deliberately excluded from the scope of s. 61" (paras. 118-20).

The length of time that both the discipline proceedings against Mr. Woodsford and this action had taken made this case a "rarity". Section 61 had to be interpreted with regard to the unforeseen circumstances presented by a rare case like this one (paras. 121-22).

Section 61 is a purely procedural provision and, by virtue of the common law principles of statutory interpretation and s. 52 of Legislation Act, 2006, S.O. 2006, c. 21, Sch. F, the section should be interpreted retrospectively (paras. 123-25).

Interpreting s. 61 as applying only to proceedings under the CAA, 2010 would produce an absurd result in that it would defeat the purpose of the enactment which was to keep the discipline proceedings separate from subsequent civil proceedings (paras. 126-27).

[13] The motion judge refused to permit the amendments to the claim.

IV

Analysis

[14] Statutory interpretation is a staple of the judicial diet. The law reports are replete with descriptions of the modern approach to statutory interpretation. That approach begins with the words of the provision under review as understood in their normal grammatical sense, but recognizes that words must be understood in the broader context in which they are used. Context is a flexible concept: see Wood v. Schaeffer, [2013] S.C.J. No. 71, 2013 SCC 71, at para. 33; Reference re Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168, [2012] 3 S.C.R. 489, [2012] S.C.J. No. 68, 2012 SCC 68, at paras. 11-12; and R. v. Hajivasilis (2013), 114 O.R. (3d) 337, [2013] O.J. No. 253, 2013 ONCA 27, at para. 23. I see no value in reiterating in general terms the approach a court must take to statutory interpretation. In this case, the statutory interpretation question comes down to this: do the factors identified by the motion judge justify departing from the plain meaning of the words "a proceeding under this Act" in s. 61?

[15] With respect, I do not think any of the factors identified by the motion judge justify a departure from the plain meaning [page514] of the words of s. 61. "This Act" refers to the CAA, 2010 only. I will address the four factors identified by the motion judge but in a different order than he did. Those factors are

-- the principle that procedural rules operate retrospectively;

the principle that the legislature does not intend a meaning that defeats the purpose of the statute;

the significance to the interpretation of s. 61 of the other references to the CAA, 1956 in the CAA, 2010; and

-- the significance of the unusual circumstances of this case.

(a) The principle that procedural rules operate retrospectively

[16] The CAA, 2010 is one of three Acts enacted as Schedules to the Accounting Professions Act, 2010, S.O. 2010, c. 6. Taken together, the three Acts regulate the accounting profession in Ontario. The CAA, 2010, like its predecessor, the CAA, 1956, provides for the investigations of complaints against members of the Institute and establishes a process for adjudicating those complaints: CAA, 2010, ss. 33-39. The complaints/discipline process created by the CAA, 2010 is very similar to the process that existed under the CAA, 1956 before it was repealed and replaced by the CAA, 2010.

[17] Section 61 is a new provision that has no equivalent in the CAA, 1956. Section 61 creates a rule of evidence that excludes the material identified in s. 61 from evidence in the vast majority of civil proceedings.

[18] Nothing in the CAA, 1956 addressed the admissibility of material relating to discipline proceedings under that Act in civil proceedings. The admissibility of that material was governed by the rules of evidence generally applicable to all civil proceedings such as issue estoppel, relevance and hearsay. Indeed, Deloitte referred to the potential admissibility in the civil proceedings of any decision the discipline committee might make relating to Mr. Woodsford when Deloitte unsuccessfully sought to delay those discipline proceedings pending the outcome of the various civil proceedings.[^1] [page515]

[19] For ease of reference, I will repeat the language of s. 61:

61. No record of a proceeding under this Act and no document or thing prepared for or statement given at such a proceeding and no decision or order made in such a proceeding is admissible in any civil proceeding, other than a proceeding under this Act or a judicial review relating to a proceeding under this Act.

[20] It is helpful to divide s. 61 into two parts for the purpose of considering the impact of the presumption that procedural rules operate retrospectively. The first part of s. 61 identifies the subject matter or substance of the exclusionary rule created by the section. That part of the section answers the question "what material is rendered inadmissible?" The second part of s. 61 identifies the proceedings to which the exclusionary rule applies. This part of the section answers the question "in what proceedings does the exclusionary rule apply?"

[21] The subject matter of the evidentiary rule created by s. 61 is described in the first three clauses of the section:

-- a record of "a proceeding under this Act";

a document, thing or statement prepared for or given at "such a proceeding"; and

-- a decision or order made "in such a proceeding".

[22] All of the material captured by the exclusionary rule created by s. 61 is material related to "a proceeding under this Act". That phrase describes the documents that are subject to the exclusionary rule.

[23] The proceedings to which the exclusionary rule applies are identified in the last part of s. 61:

61. . . . any civil proceeding other than a proceeding under this Act or a judicial review relating to a proceeding under this Act.

The evidentiary rule described in s. 61 has no application to a proceeding under the CAA, 2010. It applies to all other civil proceedings, save for those caught by the narrow exception "a judicial review relating to a proceeding under this Act".

[24] As observed by the motion judge, at para. 88, procedural provisions are, in the absence of a legislative indication to the contrary, presumed to have "immediate effect and apply retrospectively to existing proceedings". While, as noted by Professor Sullivan, the use of the word "retrospective" in this context may be a misnomer, the common law has for at least 150 years presumed the immediate application of all procedural legislation to proceedings whether those proceedings were commenced before or after the enactment of that legislation: [page516] Ruth L. Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Markham, Ont.: LexisNexis, 2008), at pp. 696-98; see, also, R. v. Dineley, [2012] 3 S.C.R. 272, [2012] S.C.J. No. 58, 2012 SCC 58, at para. 10, Deschamps J., for the majority, and, at para. 35, Cromwell J., dissenting.

[25] Rules of evidence are generally regarded as procedural and subject to the presumption of immediate application: R. v. Wildman, 1984 82 (SCC), [1984] 2 S.C.R. 311, [1984] S.C.J. No. 43, at pp. 331-32 S.C.R.; R. v. E. (A.W.), 1993 65 (SCC), [1993] 3 S.C.R. 155, [1993] S.C.J. No. 90, at p. 189 S.C.R.; Dineley; and R. v. Bickford, 1989 7238 (ON CA), [1989] O.J. No. 835, 51 C.C.C. (3d) 181 (C.A.). Section 61 is, no doubt, a rule of evidence. Nothing in the language of s. 61 could be read as rebutting the presumption in favour of immediate application.

[26] I cannot accept the appellant's submission that s. 61 is a substantive provision in that it removes the plaintiffs' vested right to rely on the discipline proceedings to support the contention that Deloitte should be estopped from contesting some of the allegations of negligence advanced in this action. Issue estoppel and related concepts are a means of proof and are generally regarded as part of the law of evidence. Where issue estoppel applies, a party relies on the estoppel to establish a fact or facts, and the opposing party is foreclosed from challenging the fact or facts that are the subject of the estoppel: see Penner v. Niagara (Regional Police Services Board), [2013] 2 S.C.R. 125, [2013] S.C.J. No. 19, 2013 SCC 19.

[27] If s. 61 applies to the documents relating to Mr. Woodsford's discipline proceedings, it removes one evidentiary route by which the plaintiffs could potentially prove certain factual allegations in the claim. Section 61 does not, however, alter the substance of the plaintiffs' claim or their rights if the claim is established. As Robins J.A. explained in Bickford, at p. 189 C.C.C., in rejecting an argument that a change in the law eliminating the requirement of corroboration denied an accused the right to be acquitted absent corroboration:

The "right" the respondent had was to be tried according to the rules and practices in force at the time of his trial. The rules or practices with respect to corroboration are evidentiary or procedural requirements that may change from time to time. When the respondent's trial commenced in April 1988, s. 586 had been repealed and was of no force or effect. There was therefore no longer any right, if one had ever existed, available to be acquired.

[28] Many rules of evidence introduced by statutory amendment will affect one party's ability to prove or disprove a claim in ongoing litigation. That evidentiary disadvantage cannot be equated with the loss of a vested right or a substantive defence. [page517] Section 61 is an evidentiary provision, part of the procedural law, and the presumption of immediate application applies.

[29] Although I agree that the presumption of immediate application applies to s. 61, I do not agree that the presumption has any bearing on the interpretation of the phrase "a proceeding under this Act" in s. 61. The presumption speaks only to the proceedings in which the evidentiary rule created by s. 61 will apply. By virtue of the presumption, the exclusionary rule created by s. 61 applies to all civil proceedings (except those specifically exempted) regardless of whether the civil proceeding commenced before or after the enactment of the CAA, 2010. The presumption of immediate application operates in this case to make s. 61 applicable to this lawsuit, even though it was commenced before the enactment of the CAA, 2010.

[30] The presumption of immediate application, however, has no role to play in determining the scope of the exclusionary rule created by s. 61 or, more specifically, the meaning of the phrase "a proceeding under this Act". Put somewhat differently, the presumption of immediate application means that s. 61 applies to this lawsuit, but the presumption says nothing about whether material relating to the discipline proceedings conducted under the CAA, 1956 is excluded by s. 61.

[31] The motion judge also referred to s. 52(4) of the Legislation Act, 2006 in support of his analysis that s. 61 operated retrospectively to include material relating to proceedings under the CAA, 1956. I do not think that s. 52(4) assists in interpreting the words "a proceeding under this Act" in s. 61. Section 52(4) of the Legislation Act, 2006 reads:

52(1) The procedure established by a new or amended Act or regulation shall be followed, with necessary modifications, in proceedings in relation to matters that happened before the replacement or amendment.

[32] Section 52(4) speaks to a situation in which a proceeding is brought under a new Act "in relation to matters" that happened before that new Act came into force. For example, s. 52(4) would be relevant if, after May 2010, when the CAA, 2010 came into force, the Institute commenced a proceeding in relation to events that occurred before May 2010. Section 52(4) directs that, in that circumstance, the procedure in the new Act, the CAA, 2010, should be followed "with necessary modifications".

[33] This case is not concerned with a proceeding commenced under a "new Act" in relation to events that occurred before the "new Act" came into force. There is no proceeding under a "new or amended Act". The discipline proceeding was carried out and completed under the prior legislation. There is only an ongoing civil proceeding. For the reasons explained above, s. 61 [page518] of the CAA, 2010 applies in that ongoing civil proceeding. There is no need to manipulate s. 52(4) of the Legislation Act, 2006 to achieve that end. The respondents' problem is not with the application of s. 61 to this lawsuit, but with the scope of the exclusionary rule created by s. 61. Neither the presumption of immediate application nor s. 52(4) assists in stretching the words "a proceeding under this Act" beyond their plain meaning.

(b) The principle that the legislature does not intend a

meaning that defeats the purpose of the statute

[34] The purpose or object of a statute or a specific provision within the statute is part of the context that must be taken into account when interpreting that statutory provision. One assumes that the legislature did not intend to enact a provision in a statute that is inconsistent with the purpose of the statute. If the plain meaning of a statutory provision would defeat the purpose of the legislation or produce a capricious or arbitrary result, and there is a plausible contextual reading of the statute that is not inconsistent with its purpose, the plain meaning will be rejected in favour of that plausible reading: see Rizzo & Rizzo Shoes Ltd. (Re) (1998), 1998 837 (SCC), 36 O.R. (3d) 418, [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, at pp. 43, 49 S.C.R.; and Sullivan, at pp. 304-306.

[35] The search for the legislative purpose animating s. 61 focuses on the language used in that section and the related provisions in ss. 58-60. The parties referred the court to the relevant excerpts from Hansard, but they were not helpful in identifying the purpose of s. 61.

[36] Discerning legislative purpose entirely from statutory language and then using that purpose to give meaning to statutory language can quickly become a circular exercise: see Hajivasilis, at para. 49. If the statutory purpose is framed in the very terms of the proposed interpretation of the relevant statutory language, it can hardly be surprising that the words of the provision are ultimately found to bear a meaning that supports the interpretation. For example, the respondents describe the purpose of s. 61 as the prohibition of the use in civil litigation of material relating to Institute disciplinary proceedings. If one accepts that description of the statutory purpose, then clearly an interpretation of s. 61 that distinguishes between proceedings under the CAA, 2010 and proceedings under the CAA, 1956 would defeat the purpose of the section.

[37] I do not accept the purpose as described by the respondents. In my view, the purpose is slightly, but significantly, different. [page519] The text of s. 61 is not framed in terms of discipline proceedings conducted by the Institute, but in terms of "a proceeding under this Act". It is the actual text of the statute that must control the articulation of its purpose.

[38] I would describe the purpose of s. 61 as the creation of an evidentiary barrier preventing the use of material relating to a "proceeding under this Act" in civil proceedings. That purpose is reinforced by the terms of s. 60 of the CAA, 2010. That section provides that persons involved in the administration of "this Act" are non-compellable in most civil proceedings in respect of information that those persons obtained in the course of their duties under the Act.

[39] The plain reading of s. 61 suggests that the evidentiary barrier created by the section bars only material relating to proceedings under the CAA, 2010. The question becomes: does that plain meaning defeat the purpose of s. 61, or does it produce results that are arbitrary having regard to the purpose of s. 61?

[40] The rationale for separating civil proceedings and discipline proceedings arising out of the same factual matrix must be understood. In F. (M.), this court interpreted a provision in the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 that, like s. 61, excluded from evidence in civil proceedings material relating to certain professional discipline proceedings. Justice Laskin explained the rationale for the exclusionary rule, at p. 307 D.L.R.:

The purpose of s. 36(3) is to encourage the reporting of complaints of professional misconduct against members of a health profession, and to ensure that those complaints are fully investigated and fairly decided without any participant in the proceedings -- a health professional, a patient, a complainant, a witness or a College employee -- fearing that a document prepared for College proceedings can be used in a civil action.

[41] The justification for the evidentiary separation of the proceedings is consistent with the application of the exclusionary rule in s. 61 on a going-forward basis only. Neither the promise of exclusion made with the enactment of the CAA, 2010 in May 2010, nor the actual exclusion from evidence in a civil proceeding after May 2010, of material relating to a long-completed discipline proceeding conducted under the CAA, 1956, could possibly facilitate the full, frank and fair disposition of that complaint. That ship sailed long ago.

[42] Similarly, the exclusion of material relating to a complaint made under the CAA, 1956 from a civil proceeding held after May 2010 will not encourage individuals to bring complaints to the Institute. An act of encouragement, by its very nature, occurs before the act that is sought to be encouraged. [page520] Putative complainants will be encouraged to come forward by the knowledge that s. 61 will apply to any complaints they make. That encouragement is achieved by reading s. 61 as written and applicable only to complaints made under the CAA, 2010. The making of complaints is not encouraged by reaching the exclusionary rule backward to documents relating to complaints that were made at a time when complainants knew that material relating to the complaints process could find its way into evidence in civil proceedings.

[43] The plain meaning of s. 61 distinguishes, for the purposes of the operation of the exclusionary rule created by s. 61, between proceedings under the CAA, 2010 and proceedings under the CAA, 1956. Material relating to the former are inadmissible in civil proceedings, while identical material, if it relates to proceedings under the latter, is admissible. In my view, this distinction is not arbitrary, but is consistent with the rationale underlying the purpose of s. 61. The purpose of the provision can be fully honoured without departing from the plain meaning of the words used by the legislature.

[44] In oral argument, Mr. Heintzman, for the respondents, put forward a second purpose underlying the exclusionary rule in s. 61. He argued that s. 61 served to enhance the efficacy of civil proceedings by excluding material relating to discipline proceedings because that material was inherently unreliable as evidence in a civil proceeding. Certainly, if this were a purpose of s. 61, a distinction between material generated under the CAA, 1956 and material relating to proceedings under the CAA, 2010 would be arbitrary.

[45] I read nothing in the language of s. 61 to suggest that it was meant to protect the fact-finding process in civil proceedings by excluding presumptively unreliable material. The exclusion of relevant evidence based on its unreliability is generally seen as a fact-specific inquiry to be left to trial judges. The language of s. 61 does not support the contention that the legislature intended to deviate from this long and well-established paradigm.

(c) The significance of the other references to the CAA, 1956

[46] Before the motion judge, and again on appeal, the appellants argued that specific references to the CAA, 1956 in other sections of the CAA, 2010 (ss. 38(4), 63(2), 65) supported the contention that, as s. 61 did not refer to the CAA, 1956, the exclusionary rule in s. 61 did not apply to material relating to proceedings under the CAA, 1956. Like the motion judge, I think the three sections referred to by the appellants serve a very different purpose than does s. 61. Those three provisions address [page521] transitional matters that would inevitably arise with the repeal of the CAA, 1956 and its replacement by the CAA, 2010. Section 61 is not a transitional provision. I agree with the motion judge that the references to the CAA, 1956 in the three sections referred to by the appellants do not assist in interpreting s. 61.

[47] I cannot, however, agree with the motion judge that the interpretation of s. 61 in a manner consistent with its plain meaning depends on drawing the inference "that the 1956 Act was deliberately excluded from the scope of s. 61". Section 61 does not mention the CAA, 1956. The issue is not whether the legislature deliberately excluded the CAA, 1956 from s. 61, but whether a context-driven analysis of s. 61 demands that the section be read as including the CAA, 1956 despite the express language to the contrary. In my view, it does not.

[48] The reference to the CAA, 1956 in the other sections of the CAA, 2010 does not assist in answering the statutory interpretation question raised here. More precisely, it does not help the respondents' contention that the plain meaning of s. 61 must be abandoned in favour of a meaning that includes material relating to the CAA, 1956.

(d) The significance of the unusual circumstances

[49] The motion judge said, at para. 121:

Further, a legislature will not and cannot anticipate every consequence of its legislation and the circumstances in which the legislation will be applied. The scope of the legislation may have to be interpreted for unforeseen circumstances.

[50] The motion judge went on to describe this proceeding as "a rarity", mainly because the civil proceedings remained extant 16 years after the alleged negligent audits and 13 years after the action was commenced.

[51] The motion judge did not refer to any authority for the proposition that unusual circumstances may affect the interpretation of a statutory provision. Nor was this court provided with any authorities to that effect. Whatever the merits of that proposition, it is not engaged here. There is nothing unusual in the circumstances of this case that is relevant to the interpretation of s. 61. The lengthy period of time that has passed since the relevant events occurred and the length of time this action has been ongoing are irrelevant to the proper interpretation of s. 61. The interpretative question that arises here will arise in any case where a party seeks to introduce documents relating to proceedings under CAA, 1956 in a civil proceeding, regardless of when that proceeding was commenced, or when the relevant events occurred. [page522]

[52] The possibility that a party in a civil proceeding might seek to introduce documents relating to a discipline proceeding under the CAA, 1956 was certainly very real in May 2010 when s. 61 came into effect along with the rest of the CAA, 2010. That possibility remains a realistic one today and for the immediate future. There was nothing unusual or rare in the circumstances that was relevant to interpreting s. 61.

V

Conclusion

[53] There is no reason to deviate from the plain meaning of s. 61. It renders documents relating to proceedings under the CAA, 2010 inadmissible in most civil proceedings, including this proceeding. Section 61 has no effect on the admissibility in civil proceedings of documents relating to proceedings under the CAA, 1956. The motion to amend the pleadings should have been allowed.

[54] I would allow the appeal, set aside the order below and grant the appellants leave to amend in accordance with the amended consolidated statement of claim filed on the motion.[^2]

[55] There should be no order of costs for or against the intervenor. Costs as between the appellants and respondents shall be in the cause.

Appeal allowed.

Notes

[^1]: Although Deloitte emphasized concerns that it might be required to produce material generated by the discipline proceedings in the civil action, it also raised the concern that any conviction of Mr. Woodsford might be admissible as prima facie evidence against Deloitte in the civil proceeding.

[^2]: Deloitte brought a cross-motion seeking an order that the material relating to Mr. Woodsford's discipline proceedings was inadmissible pursuant to s. 61. The motion judge dismissed the cross-motion as "premature" without prejudice to arguments at trial that evidence was "not admissible because of s. 61". It follows from my reasons that the cross-motion should simply have been dismissed.

End of Document