Becker v. McMurter, 2015 ONSC 4207

BARRIE COURT FILE NO.: CV-10-1284-A2

DATE: 20150629

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MARTIN BECKER and DONNA LYNAM

Plaintiffs

– and –

ESTHER McMURTER and NATHAN ROY CROWE, in their capacity as Estate Trustees of the Estate of George Crowe, and ANDREW BROWN

Defendants

– and –

ONTARIO POWER GENERATION INC., ROBERT COCROFT and HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO as represented by THE MINISTER OF NATURAL RESOURCES

Third Parties

Mark Vernon, for the Defendants - Responding Parties

Lisa Brost, for Her Majesty the Queen in right of the Province of Ontario as represented by The Minister of Natural Resources – Third Party/Moving Party

HEARD: June 11, 2015

REASONS FOR DECISION

DiTOMASO J.

THE MOTION

[1] Her Majesty the Queen in the Right of Ontario as represented by The Minister of Natural Resources (“Ontario”) brings this motion under Rule 21 of the Rules of Civil Procedure for an order striking the defendants’ Third Party Claim against Ontario without leave to amend on the basis that it discloses no reasonable cause of action.

[2] In the main action, the Plaintiffs seek damages involving the construction of a dock located at Crystal Falls (the “Crystal Falls Project”).

[3] In their Third Party Claim against Ontario, the Defendants seek full contribution and indemnity from Ontario for all amounts found to be owing by the Defendants to the Plaintiffs in the main action. Counsel for the Defendants conceded that his clients were not claiming contribution and indemnity against Ontario for damages alleged in respect of failure by the Defendants to properly repair the dock. Rather, their claim for contribution and indemnity was being advanced by the Defendants in respect of the Plaintiffs’ claim for damages attributed to the change in water levels in Lake Chebogan where the dock being the subject of the Crystal Falls Project was located.

[4] Further, not in issue between these parties was the claim arising from the construction of a dock in the Township of Severn (“Severn Project”). The parties agree the Severn Project is unrelated to the Third Party claim and if necessary, the Defendants will amend the Third Party claim to that effect.

THE ISSUE

[5] The sole issue raised on this motion is whether the facts as pleaded by the Defendants disclose a reasonable cause of action against Ontario and, if not, whether the Defendants’ Third Party claim against Ontario be struck without leave to amend.

POSITION OF THE PARTIES

Position of Ontario

[6] Ontario submits that the sole basis on which the Defendants allege that Ontario ought to be held liable for the Plaintiffs’ losses relates to the issuance of a work permit (the “work permit”) that allowed the Plaintiffs to place a dock on certain shoreline. Ontario submits that the Plaintiffs’ claim against the Defendants relating to such dock is limited to damages caused by the Defendants’ alleged failure to properly repair the dock. Ontario submits that the work permit related solely to the construction of the dock and it did not relate to any subsequent repair work. Ontario submits that the Plaintiffs’ claim is limited to the damages that can be attributed only to the fault of the Defendants and not to the acts of Ontario. As such, the Defendants’ claim for contribution and indemnity for such damages against Ontario cannot succeed and must be struck.

[7] Further, Ontario did not owe any private law duty of care to the Plaintiffs. Ontario is not liable for contribution and indemnity to the Plaintiffs under the Negligence Act. The work permit was issued in accordance with a regulatory regime aimed at protecting and furthering specific public interests. In issuing the work permit, Ontario submits that the regulatory authority was obliged to consider only those particular public policy interests. Further, Ontario submits that interests specific to the Plaintiffs were not to be considered. The regulatory regime did not allow for the imposition of a private law duty of care. In addition, in the circumstances of this case, no common law private duty of care existed.

[8] Ontario submits that there are compelling policy reasons that militate against the imposition of a common law private duty of care. Lastly, it is Ontario’s position that the facts as pleaded by the Plaintiffs do not support any reasonable cause of action as against Ontario and that the Third Party Claim cannot be saved or made tenable by way of amendment.

Position of the Defendants

[9] The Defendants submit that it is not plain and obvious that the Third Party Claim discloses no reasonable cause of action. Further, it is not plain and obvious that Ontario’s question of law can be disposed of on this interlocutory pleading motion. It is submitted that there are material facts in dispute and the matter of law in issue on this motion has not been fully settled in the jurisprudence and requires a full factual record in order to be properly adjudicated upon.

[10] The Defendants do not agree that the substance of the Plaintiffs’ claims relate to the repair of the dock. Rather, they submit that the true cause of the Plaintiffs’ damages was the changing conditions on Lake Chebogan including changing water levels which resulted in continued shifting of the dock. The Defendants deny any negligence in the construction of the dock. The Defendants submit there may be a causal connection between Ontario’s alleged acts and omissions and the Plaintiffs’ damages. The Defendants submit that it is not “plain and obvious” that there is no causal connection between Ontario’s alleged acts and omissions and the Plaintiffs’ damages.

[11] The Defendants also submit that a plain reading of the Public Lands Act and its regulations are not determinative of the issue in respect of the creation or existence of a private duty of care. Again, it is not plain and obvious that there is no private duty of care. Rather, the Defendants submit that based on Ontario’s operational negligence in issuing the work permit in the first place, a private duty of care exists as between the Plaintiffs and Ontario.

[12] Lastly, the burden of proof rests with Ontario to prove that it is plain and obvious that the Third Party Claim discloses no reasonable cause of action and in this regard Ontario has failed to satisfy its burden of proof. Accordingly, the Defendants submit that this motion be dismissed with costs.

ANALYSIS

[13] The parties are in substantial agreement in respect of the factual matrix which applies to this proceeding. There is also no significant dispute in respect of the relevant and applicable legal principles that each party has referred to both in respect of the Rule 21 test and the principles at play regarding contribution and indemnity, private law duty of care and common law private duty of care.

The Main Action

[14] In respect of the construction and subsequent repair of the Crystal Falls dock the Plaintiffs and Defendants agree on the following facts:

(a) The Plaintiffs hired Blackbird Holdings Ltd., which carried on business as Crowedock Docking Systems (“Blackbird”) to construct a dock at the Plaintiffs’ property in Crystal Falls, Ontario (the “Dock”) pursuant to a written agreement dated December 3, 2007 (the “Contract”).

(b) At all material times, the Defendant George Crowe was the directing mind of Blackbird. The Defendant Andrew Brown was an employee of Blackbird and acted as the project manager with respect to the construction of the Dock.

(c) Under the Contract, Blackbird was to construct the Dock in accordance with plans prepared by the Defendants. Under the Contract, Blackbird guaranteed the Dock in the event of failure, including ice damages, for five years (the “Blackbird Guarantee”).

(d) After Blackbird constructed the Dock, the Dock sustained damage due to ice levels.

(e) In accordance with the Blackbird Guarantee, Blackbird purported to effect repairs to the Dock in or around January of 2009.[^1]

[15] In the main action, the Plaintiffs allege that the Defendants were negligent in that they failed to supervise, manager, design and conduct the repair work (emphasis mine) on the dock in a workmanlike fashion.[^2]

The Third Party Claim

[16] The Defendants subsequently commenced a Third Party Claim against Ontario in which they sought full contribution and indemnity from Ontario for all amounts to be found owing by the Defendants to the Plaintiffs in the main action now limited by the Defendants’ counsel to the Plaintiffs’ damages attributed to the change in water levels in Lake Chebogan.

[17] The sole basis upon which the Defendants allege that Ontario caused or contributed to the damages claimed by the Plaintiffs in the main action relates to the issuance of the work permit by Ontario’s Ministry of Natural Resources (“MNR”). The Defendants allege that the MNR was negligent in issuing the work permit for the construction of the dock and that but for Ontario’s negligence in issuing the work permit, the Defendants would not have constructed the dock as a permanent structure and in the manner in which it is constructed.[^3]

[18] The work permit, which was issued to the Plaintiffs, allowed the Plaintiffs to “construct or place a structure or a combination of structures, or cause a structure or combination of structures to be constructed or placed, that occupies more than 15 square meters of shore lands.”[^4]

The Applicable Test

[19] Under Rule 21, a judge on a motion may strike out a Statement of Claim on the ground that it discloses no reasonable cause of action. [^5]

[20] The test for striking a claim for disclosing no reasonable cause of action is that it must be “plain and obvious” that the claim cannot succeed. The test is met where:

(a) a plaintiff pleads allegations that do not give rise to a recognized cause of action;

(b) a plaintiff fails to plead a necessary element of a recognized cause of action; or

(c) the allegations in the pleading are simply conjecture, assumptions or speculation unsupported by material facts, or where more conclusions of law are asserted.[^6]

[21] As well, the following principles are relevant in applying Rule 21:

(a) Allegations set out in the statement of claim, unless blatantly ridiculous or incapable of proof, must be taken as true.

(b) Where the alleged facts fail to disclose a claim, the statement of claim should be struck.

(c) Vague allegations or allegations that are assumptions or speculation are by their very nature incapable of proof by the adduction of evidence, and therefore are not to be taken as true. They are impossible to reply to and should be struck.

(d) Where the minimum level of factual disclosure has not been attained, the granting of a motion to strike under Rule 21 is an appropriate remedy, as opposed to granting leave to amend or an order for particulars.[^7]

[22] A useful summary of the cause of action criterion and the plain and obvious test can be found in the decision of Perell J. in Trustees of the Millwright Regional Council of Ontario Pension Trust Fund v. Celestica Inc. 2012 ONSC 6083, 2001 2CarswellOnt. 13292 at paras. 53 to 59.

[23] Further, the Rule 21 test was considered by the Ontario Court of Appeal in Rausch v. Pickering (City), 2013 ONCA 740 at para. 34:

[34] There is no dispute as to the test and associated principles that apply to a motion to strike pleadings for not disclosing a reasonable cause of action. The test is stringent, and the moving party must satisfy a very high threshold in order to succeed: Amato v. Welsh, 2013 ONCA 258, 305 O.A.C. 155, at paras. 32-33. Unless it is “plain and obvious” that there is no chance of success, a claim, even a novel one, ought to be allowed to proceed: Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959, at p. 980; and Okhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, at para. 15. The motion proceeds on the basis that the facts pleaded are true unless they are manifestly incapable of being proven: Operation Dismantle Inc. v. The Queen, 1985 74 (SCC), [1985] 1 S.C.R. 441, at p. 455. While the facts pleaded are the basis upon which the possibility of success must be evaluated, the pleading must be read as generously as possible, erring on the side of permitting an arguable claim to proceed to trial.

[24] In their Third Party Claim, the Defendants allege that Ontario was negligent in issuing the work permit. I find the facts as pleaded in the Third Party Claim do not support a tenable claim in negligence for the following reasons:

(a) As the damages sought by the Plaintiffs are limited to those caused by the negligence of the Defendants in repairing the dock, the Defendants can have no claim-over against Ontario with respect to such damages; and

(b) Ontario did not owe a private law duty of care to the Plaintiffs.

No causal connection between the issuance of the work permit and the damages claim

[25] A defendant is not liable for any injuries for which the defendant’s negligence is not a cause. Where a Plaintiff limits its claim to the damages that can be attributed to the fault of the Defendant, a third party action for contribution and indemnity is properly struck out.[^8]

[26] The Defendants submit that the claim is about a dock built where it should not have been built. They disagree with the characterization of the Plaintiffs’ claim by Ontario. They submit that the true substance of the claim relates to damages sustained as a result of a continued shifting dock caused by the changing water levels of Lake Chebogan.

[27] I have read the pleadings and, in particular, I have reviewed the Statement of Claim. A plain reading of the Statement of Claim does not support the argument advanced on behalf of the Defendants that the Plaintiffs’ damages related to negligent issuance of the work permit by Ontario.

[28] Rather, the sole damages sought by the Plaintiffs in the main action are those alleged to arise from the Defendants’ failure to repair (emphasis mine) the dock in a workmanlike manner, in accordance with their obligations under a guarantee provided by Blackbird. Specifically, the Plaintiffs make the following allegations at para. 10 of the Statement of Claim:

10. The Plaintiffs state and the fact is that the Defendants were negligent in that they failed to supervise, manage, design and conduct the repair work including the welding in a proper and workmanlike fashion, which negligence resulted in damages, including but not limited to the following:

a. Numerous sharp metal edges were left above and below the water level making it dangerous for swimmers and boats and thus making the Dock unusable for its intended purpose;

b. Due to continue shifting of the Dock, the decking became and becomes loose and unattached to the frame making the Dock hazardous for use;

c. In accessing the Dock, the Defendants’ equipment damaged the soil and surrounding yard; and

d. Significant debris was left on the Plaintiffs’ premises.[^9]

[29] Again, the sole basis on which the Defendants seek contribution and indemnity from Ontario is Ontario’s alleged negligence in issuing the work permit. As stated in the Third Party Claim, the work permit simply authorizes the Plaintiffs to “construct, replace or a combination of structures, or cause a structure or combination of structures to be placed, that occupies more than 15 square metres of shore lands”.[^10]

[30] I find that there was no connection between Ontario’s issuance of the work permit and the Plaintiffs’ damages. The work permit allowed the Plaintiffs to place a structure on a certain area of shoreline. The placing of the dock in that location could not have caused the Plaintiffs’ damages. Rather, those damages are limited solely to the Defendants’ allegedly shoddy repair work. Ontario is not answerable for the conduct of the Defendants and on this basis, the third party claim must be struck.

Ontario did not owe a private law duty of care to the Plaintiff

[31] On behalf of the Defendants, it is submitted that a private law duty of care was owed to the Plaintiffs by Ontario which was engaged by Ontario carrying out its operational duty in granting the work permit which should never have been issued in the first place. I disagree.

[32] The applicable legal principles are as follows as submitted by counsel for Ontario.

[33] A third party may only be liable for contribution under the Negligence Act, R.S.O. 1990, c.N.1 if it is directly liable to the Plaintiff. Thus, the Defendants can only have a claim for contribution if the facts as pleaded and accepted as true establish that Ontario owed a private law duty of care to the plaintiffs.[^11]

[34] The determination of whether a duty of care is owed may be made on a motion to strike, without a factual record.[^12]

[35] The existence of a duty of care is to be determined in accordance with the following test:

(a) In stage one, it must first be determined that the harm that occurred was the reasonably foreseeable consequence of the Defendant’s act and that the relationship between the parties was of sufficient proximity to give rise to a duty of care.

(b) In stage two, the court must determine whether there are residual policy considerations which negate the imposition of a duty of care.[^13]

(a) Stage One – Proximity and foreseeability of harm

[36] The factors that may satisfy the requirement of proximity are diverse, depend upon the circumstances of each case and include broad considerations of policy. Such factors include the expectations of the parties, physical closeness, representations, reliance, the nature of the property or interest involved, assumed or imposed obligations, whether there is a close causal connection between the alleged misconduct and the complaint of harm.[^14]

[37] The proximity required to give rise to a private law duty of care on the part of a public authority may arise in three ways. First, proximity may be expressly provided for in the governing statute. Second, proximity can be established by way of specific interactions between the parties, so long as it is not negated by the governing statute. Third, proximity can be established both by way of statute and specific interactions.[^15]

[38] Counsel for Ontario submitted that any determination of whether a public regulator owes a private law duty of care is focused on the legislative framework under which the regulator acts. A statute must demonstrate a legislative intent to provide a public remedy to individuals. There can be no private law duty of care where the purpose of the legislative scheme is to facilitate a public authority to act in the public interest.[^16]

[39] Courts have held that in order for a public authority to be found to owe a private law duty of care:

(a) the purpose of the statutory scheme at issue must be to benefit individual members of an identifiable class or group; and

(b) the loss must be the type of loss the statute was intended to guard against.[^17]

[40] In the case at hand, the work permit was issued pursuant to the Public Lands Act, R.S.O. 1990, c.P. 43 (the “PLA”) and in accordance with Regulations enacted thereunder. The PLA provides that the functions of the Minister of Natural Resources (the “Minister”), who is charged with implementing the Act, are the management, sale and disposition of the public lands and forests. The purpose of the Act is to allow the Minister, in his discretion to manage public lands for the benefit of the public at large.[^18]

[41] Counsel for Ontario cited the applicable Regulations enacted under the PLA as follows:

An officer shall issue a work permit to any person who applies for it and pays the prescribed fee unless the officer is of the opinion that the work for which a permit is required:

(a) is contrary to law;

(b) is inconsistent or does not confirm to,

i) an official plan as defined in the Planning Act,

ii) a Ministry Resource Management Plan,

iii) the Ministry District Land Use Guidelines,

iv) a policy and procedure directive of the Ministry of Natural Resources; or

(c) is likely to create a threat to public safety or a natural resource including Crown lands, water and watercourses, forests, flora, wildlife and fisheries.[^19]

[42] The legislative framework provides that the MNR Officer is obligated to issue the work permit unless he or she is of the view that the issuance of the work permit is contrary to one or more of specifically enumerated public policy concerns relating to the Minister’s mandate to manage public lands. The Act and its Regulations are clear in stating the promotion of considerations for the exclusive benefit of the public as a whole, and not individual work permit applicants. I agree that any duties proposed by the Regulations with respect to the placement of structures on shorelines were duties owed to the public at large and not private individuals.[^20]

[43] I find the statutory regime does not allow for a private law duty of care. Rather, the clear intent of the legislative framework is set out in the PLA and its Regulations is to manage public lands for the benefit of the public and to protect public safety in natural resources.

[44] I find the interaction by a government regulator with someone subject to its Regulation is not sufficient to create a necessary close and direct relationship to found a duty of care. For the existence of a duty of care to arise, the claimants must be members of a discreet class that the legislation under which the regulator acts seeks to protect.[^21]

[45] In the case at hand, there is no such discrete class which the legislation under which the regulator acts seeks to protect.

[46] Further, I agree that the damage to the Plaintiffs’ private property wherein indemnity is sought, is not the type of loss the PLA and its Regulations was entitled to guard against. The losses that the PLA and its Regulations are expressly intended to prevent are those opposed not to private interest, but rather those that threaten the MNR’s policies, resource management plans and land use guidelines, public safety or natural resources.[^22]

[47] Further, the MNR officer under the Regulations is obligated to ensure that the relevant fee is paid and that, based on the information provided by an Applicant, he or she is not of the view that specific public policy concerns prohibit the issuance of the work permit. I accept submissions on behalf of Ontario that in exercising their powers, MNR officers are neither obligated nor permitted to be mindful of the economic interests of individuals applying for work permits. Their overriding concern is the protection of natural resources, the Crown’s land management policies and public safety.

[48] I agree with the submissions of counsel for Ontario that an examination of the PLA and its Regulations is determinative of whether a private duty of care was owed to the Plaintiffs to prevent the loss alleged. I find that the Legislation and its Regulations is unambiguous. The work for which the permit was required was not contrary to law and the Plaintiffs do not allege any contravention of law. While counsel for the Defendants submits that the regulatory framework is not dispositive of the private duty of care issue, I disagree. I find that it is plain and obvious from a review of the applicable statutory scheme that a statutory relationship of proximity between the Plaintiffs and Ontario does not exist. I have also considered the argument advanced by counsel for the Defendants that it is also not plain and obvious that a common law private duty of care does not exist between the Plaintiffs and Ontario. This argument as well is based on the MNR being engaged in an operational duty, i.e. granting a permit which should not have been issued in the first place.

[49] In Rausch v. Pickering (City) the Court of Appeal recognized that in addition to a statutory duty of care set out in the governing legislation, there may be a common law duty of care that arises by virtue of interactions between the statutory actor and a private individual. Before analyzing whether there may be a common law duty of care, the statutory scheme must be examined to determine whether it forecloses such a duty.[^23]

[50] In my view, the statutory scheme in play precludes the recognition of a common law duty of care. It is plain and obvious from a review of the applicable statutory scheme that neither the statutory private duty of care or a common law private duty of care arises in this case.

(b) Stage Two – Residual Policy Considerations

[51] The Defendants submit that when an issue of the existence of a duty of care is raised on a Rule 21 motion, and is therefore based on a limited motion record, the court should be reluctant to find that policy reasons conclusively negate a duty of care at that early stage.[^24]

[52] I disagree that the motion record in the case at hand is so limited that the outstanding issues cannot be determined. Neither do I find that the policy reasons in and of themselves conclusively negate a duty of care at this early pleading stage.

[53] Rather, I am persuaded that there are several compelling policy considerations that make it unwise to impose a private law duty of care in the circumstances of this case.

[54] It was never the intention of the Legislature to create a statutory framework where recognizing a duty of care would for all practical purposes create an insurance scheme funded by taxpayers for projects undertaken by private parties for private benefit. Ontario is not an insurer of all works carried out pursuant to a work permit.

[55] Further, the imposition of a duty of care suggested by the Defendants would subject Ontario to the spectre of unlimited liability. Under the applicable legislative framework, the MNR does not control how a project that is undertaken pursuant to a work permit is carried out. It is not within Ontario’s authority to control how much such a project will cost. The legislation does not place responsibility for how a structure erected pursuant to work permit is used or maintained in the hands of Ontario. For example, these external factors would influence considerations of Ontario’s potential liability and the extent of such liability to recipients of work permits or even third party beneficiaries of such permits.

[56] A further policy consideration regarding the imposition of a duty of care submitted by the Defendants could subject public regulators to extensive and indeterminate liability.

[57] Lastly, recognizing a duty of care could have a negative impact on Ontario’s ability to balance all relevant interests when making regulatory decisions regarding management of Crown land.

[58] I find that there are numerous and cogent residual policy considerations that militate against the imposition of a private law duty of care in the circumstances of this case.

[59] Accordingly, I conclude that Ontario does not owe a private law duty of care or a common law duty of care to the Plaintiffs.

[60] For these reasons, the facts pleaded in the Plaintiffs’ claim could not support any reasonable cause of action against Ontario and the Third Party Claim must be struck without leave to amend.

CONCLUSION

[61] Accordingly, there shall be an order dismissing the Third Party Claim against Ontario without leave to amend. Submissions were heard in respect of costs relating to the motion. At the request of counsel for the Defendants, written submissions as to costs shall be delivered in respect of Ontario’s claim for costs of the action. I have Ontario’s Costs Outline in this regard but I require further written submissions from both parties on this issue. Ontario shall deliver written submissions as to costs of the action within the next ten days. The Defendants shall have ten days thereafter to deliver their written cost submissions. If any reply is required, Ontario shall reply within the following seven days. All written cost submissions after exchange by the parties are to be delivered to my judicial assistant at Barrie.

DiTOMASO J.

Released: June 29, 2015

[^1]: Statement of Claim, Motion Record of Ontario, Tab 2, paras. 2 to 9, inclusive; Statement of Defence, Motion Record of Ontario, Tab 3, para. 1

[^2]: Statement of Claim, Motion Record of Ontario, Tab 2, para. 10

[^3]: Third Party Claim, Motion Record of Ontario, Tab 4, paras. 14 to 16

[^4]: Third Party Claim, Motion Record of Ontario, Tab 4, para. 10

[^5]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 21.01(1)(b)

[^6]: Hunter v. Bravener et al, [2003] O.J. No. 1613 (C.A.), paras. 3 to 5; application for leave to appeal dismissed, [2003] S.C.C.A. No. 306.

[^7]: White v. Canada, [2011] O.J. No. 4381 (SCJ) at paras. 16, 19, 20, 22 and 24.

[^8]: Holthaus v. Bank of Montreal, 2000 5665 (ONCA) at paras. 8 and 9; Taylor v. Canada (2009), 2009 ONCA 487, 95 O.R. (3d) 561 (CA) at paras. 1, 20, 29 and 33; Misko v. Doe (2007), 2007 ONCA 660, 87 O.R. (3d) 517 (CA) at paras. 2, 16, 17 and 18.; O’Neil v. Van Horne, 2002 41072 (ON CA), 59 O.R. (3d) 384 (CA) at paras. 5 to 11 and 14.

[^9]: Statement of Claim, Motion Record of Ontario, Tab 2, paras. 6 to 10

[^10]: Third Party claim, Motion Record of Ontario Tab 4

[^11]: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at para. 29

[^12]: Klein v. American Medical Systems, Inc. (2006), 2006 42799 (ON SCDC), 84 O.R. (3d) 217 (SCJ Div.Ct) at paras. 19, 40 and 43

[^13]: Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537 at para. 30

[^14]: Klein v. American Medical Systems Inc., supra at para. 23

[^15]: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at paras. 44 to 46

[^16]: Attis v. Canada (Minister of Health) (2008), O.R. (3d) 35 CA) at para. 54; Klein v. American Medical Systems Inc., supra, at para. 25; River Valley Poultry Farm Ltd. v. Canada (Attorney General) (2009) 2009 ONCA 326, 95 O.R. (3d) 1 (CA) at paras. 61 and 66; Moreira v. Ontario Lottery and Gaming Corporation, 2013 ONCA 121, application for leave to appeal denied 2013 51816 (SCC), at paras. 111 to 112.

[^17]: Klein v. American Medical Systems Inc., supra, at para. 24

[^18]: Public Lands Act, R.S.O. 1990, c.P.43, s.2 and 5(1)

[^19]: Work Permits, R.R.O. 1990, Regulation 975 (the “Regulations”), s.2(1)

[^20]: Klein v. American Medical Systems Inc., supra, at para. 31; Moreira v. Ontario Lottery and Gaming Corporation, supra, at paras. 111 to 112

[^21]: River Valley Poultry Farm Ltd. v. Canada (Attorney General), supra, at paras. 61 and 66; The Los Angeles Salad Company Inc. v. Canadian Food Inspection Agency, 2013 BCCA, 34, at paras. 49, 51 and 52

[^22]: Klein v. American Medical Systems, Inc., at para. 24

[^23]: Rausch v. Pickering (City), supra, at para. 45 and 46

[^24]: Haskett v. Equifax Canada Inc., (2003), 2003 32896 (ON CA), 63 O.R. (3d) 577 (C.A.) at para. 52, as quoted in Rausch v. Pickering (City) supra at para. 74