Court File and Parties

COURT FILE NO.: 376/16 DATE: 20180716 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Mark William Tindall and Rachel Adriana Stuy, Plaintiffs AND: The Royal Canadian Mounted Police and The Attorney General of Canada as represented by The Royal Canadian Mounted Police, Defendants

BEFORE: Justice A. K. Mitchell

COUNSEL: J. Drennan, for the plaintiffs S. McGovern, for the defendant The Attorney General of Canada

HEARD: June 27, 2018

Endorsement

Overview

[1] The defendant, The Attorney General of Canada, brings this motion for summary judgment seeking an order dismissing the plaintiffs’ claims (or, alternatively, dismissing the additional claims of the plaintiffs contained in the Fresh as Amended Statement of Claim) on two primary grounds, namely:

(a) they are statute-barred pursuant to s. 4 of the Limitations Act [1]; and (b) the court lacks jurisdiction.

[2] In addition, the defendant asks that the style of cause be amended to delete reference to The Royal Canadian Mounted Police (the “RCMP”) as it is not a separate legal entity from the Attorney General of Canada. The plaintiffs consent to removing the RCMP from the style of cause and, accordingly, that order shall issue.

[3] If the action is permitted to proceed, the defendant asks that Ms. Stuy’s derivative Family Law Act claims be struck on the basis they are untenable at law. This relief is similarly unopposed by the plaintiffs.

[4] The defendant bears the onus of establishing that there is no genuine issue requiring a trial. Once that onus is met, the plaintiff bears the burden of establishing (i) the claim was commenced within the limitation period; and (ii) the court has jurisdiction over the claims of the plaintiff.

Background

[5] The material facts are not in dispute. These facts are:

• The plaintiff, Mark Tindall, is currently employed as a constable with the RCMP.
• In 2000, the plaintiff was posted to Nunavut where his work included investigating several horrific crimes.
• The plaintiff developed post-traumatic stress disorder (“PTSD”) relating to his involvement in the investigation of the rape and murder of a teenage girl.
• In 2007, the plaintiff received treatment for PTSD that was supported by the RCMP Occupational Health Services and he was assessed as having an Operational Stress Injury (“OSI”).
• On July 23, 2008, the Department of Veterans Affairs granted a disability pension to the plaintiff for PTSD, alcohol abuse, tinnitus, erectile dysfunction, irritable bowel syndrome and hypertension, pursuant to the Pension Act. The plaintiff receives a tax-free pension of $4803.73 per month for life indexed for cost-of-living/inflation.
• An additional pension was payable to the plaintiff’s spouse and to his daughter pursuant to the provisions of the Pension Act.
• In February 2012 the plaintiff was put on administrative duties. At this time he was taking active steps to continue his treatment for PTSD and depression as well as alcohol dependence.
• On November 11, 2012 the plaintiff filed a grievance pertaining to the denial of financial coverage for his spouse to obtain individual counselling.
• In 2013, the plaintiff requested to return to full-time, unrestricted, policing duties.
• On October 21, 2013 the plaintiff’s grievance was dismissed as being statute barred. The decision was not submitted for review nor has it been judicially reviewed by the Federal Court.
• To determine his fitness for duty and allow him an opportunity to return to full-time unrestricted operational duties, the RCMP requested that the plaintiff attend a safety assessment. The plaintiff did not appeal this directive and agreed to attend at Bellwood Health Services for the assessment.
• On January 15, 2014 the plaintiff sent an email to Bellwood and Dr. Fischman advising that the assessment conducted at Bellwood on January 14, 2014 had been “humiliating and degrading” and that he was revoking any and all consent forms regarding the assessment at Bellwood and stopping the assessment process. In this same email he requested a copy of all information provided to Bellwood.
• On January 16, 2014, Dr. Fischman sent a memo to the plaintiff attaching the single report he had prepared for purposes of the assessment at Bellwood.
• On January 29, 2014 the plaintiff sent an email to Dr. Fischman advising that the report sent to Bellwood contained grossly inaccurate information and he further advised that he would be seeking formal redress for this issue because of the problems caused by the assessment at Bellwood and “the impact it has had on his career, status and overall well-being”.
• On January 31, 2014 the plaintiff sent an email demanding a preservation of all documents in his medical file and advising that “no past documents are to be altered/changed or corrected in any way.”
• On February 3, 2014 the plaintiff sent an email inquiring as to the next steps to determine his medical status and requested a summary of his options. He was advised that he may review his file and correct any errors he finds and was advised that a correction had been added to his file. It was suggested that he search for an alternative location for the assessment. The plaintiff advised that he could not work with Dr. Fischman on the assessment until the errors in the report were formally addressed and rectified.
• On February 5, 2014 a memo prepared by Sgt. Houghton summarized the events leading to the disclosure of the report to the plaintiff on January 29, 2014. This memo also indicated that the plaintiff had sought legal advice and counsel on February 1, 2014.
• On February 13, 2014, the plaintiff sent an email to Dr. Fischman setting out the errors he had found in the report sent to Bellwood.
• By email dated February 20, 2014 Dr. Fischman provided replies to the list of errors identified by the plaintiff.
• On February 21, 2014 the plaintiff sent an email to Dr. Fischman advising to stop the process, that he had retained a lawyer. He demanded an internal review by RCMP management and that he planned to submit a complaint to the College of Psychologists for Ontario.
• On March 14, 2014 Dr. Glass provided an update to the plaintiff regarding the transfer of his medical file.
• On April 11, 2014 the RCMP advised the plaintiff that the discharge note he had provided from Dr. Ferguson, his family doctor, indicating he was fit to return to active policing duties was not the type of assessment and report required by the RCMP to clear him medically to return to full-time unrestricted operational duties.
• In June 2014 the plaintiff’s medical file was transferred by Dr. Fischman to Dr. Snook.
• On May 22, 2015 the plaintiff sent an email to the RCMP advising that due to his ongoing stress he would not return to work and would provide an update on June 8, 2015.
• On July 8, 2015 the plaintiff advised the RCMP that he felt “burnt out” and unable to move forward at that time.
• On July 31, 2015, the plaintiff went off on a medical leave.
• On August 13, 2015 a medical certificate was provided by Dr. Nelson advising the plaintiff was unfit for duty.
• On December 14, 2015 the RCMP sent a letter to Dr. Nelson requesting completion of an evaluation of disability questionnaire and a diagnosis and treatment plan.
• On December 21, 2015, Dr. Nelson returned the completed questionnaire advising that the plaintiff would not be able to return to work and further advised that “the plaintiff would best be served medically separating from the RCMP.”
• The plaintiff commenced this action by Statement of Claim issued on February 5, 2016.
• On June 7, 2017 the plaintiff amended his Statement of Claim to include claims of: negligence, breach of contract, breach of fiduciary duty, mental distress and wrongful and/or constructive dismissal.
• The plaintiff remains a member of the RCMP and is currently on medical leave with pay. He is also receiving his disability pension.

Analysis

Test for Summary Judgment

[6] Pursuant to r. 20.01(3) of the Rules of Civil Procedure, a defendant to an action may move for summary judgment dismissing all or part of the claim against it. If the court is satisfied there is no genuine issue requiring a trial, the court must grant summary judgment.

[7] Hyrniak v. Mauldin [2] is the leading case. Recognizing that affordable and timely access to the civil justice system is paramount, the Supreme Court of Canada has interpreted r. 20.03 to require motions judges to utilize their enhanced powers under r. 20 to weigh evidence, evaluate credibility and draw reasonable inferences where appropriate in order to expand the cases capable of being disposed of summarily without the need for costly and protracted litigation.

[8] This is one of those cases. The facts are not contentious. Credibility is not an issue. It is presumed that the parties have placed before me all relevant and necessary evidence. That is, that the plaintiff has put his best foot forward. The plaintiff must lead trump or risk losing. It is assumed for purposes of this motion that no better evidence exists upon which to decide the issues. [3]

[9] Once the moving party establishes that there is no genuine issue requiring a trial, the onus shifts to the responding party to establish that there is a genuine issue requiring a trial. [4] In order to defeat a motion for summary judgment, the responding party must set out in affidavit material or other evidence, the specific facts that establish that there is a genuine issue requiring a trial. The responding party cannot rest on mere allegations or denials of a party’s pleadings. [5]

Limitations Act, 2002

[10] Section 4 of the Limitations Act, 2002, provides that a claim is statute-barred if an action is not commenced within 2 years following the date on which it is discovered. A key issue on this motion is the plaintiff’s discoverability of his various claims for damages.

[11] When a claim is discovered is determined after applying the criteria set forth in s. 5 of the Limitations Act, 2002, which states:

5.(1) a claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew, (i) that the injury, loss or damage had occurred, (ii) that the injury, loss or damage was caused by or contributed to by an act or omission, (iii) that the act or omission was that of the person against whom the claim is made, and (iv) that having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and (b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

[12] Section 5(2) of the Limitations Act, 2002 creates a presumption that a cause of action is discovered on the day that the act or omission giving rise to it takes place. In the absence of proof of a different discovery date, with the onus of proof being on the plaintiff, the discovery date defaults to the date of the act or omission.

[13] With respect to the concept of discoverability, a cause of action in tort is discovered upon a) the suffering of damage; and b) the identification of the tortfeasor. The accrual of the cause of action is not delayed until the specific type of damage, or the full extent of damage, is known as this “would inject too much uncertainty into cases where the full scope of the damages may not be ascertained for an extended time…” [6]

[14] “Damage” (the injury inflicted by the tort) must be distinguished from “damages” (the monetary measure of the plaintiff’s losses). A plaintiff does not need to be aware of the precise monetary value of a loss, nor does he/she need to have actually sustained an actual monetary loss, before a cause of action accrues. So long as the plaintiff has sustained damage, the cause of action has accrued, and the limitation period will run. [7]

[15] The incident which was the catalyst for this litigation was the manner in which the assessment of January 14, 2014 was conducted and the errors contained in the report upon which the assessor relied in conducting the assessment. The incorrect and inaccurate information contained in the report may be briefly summarized as follows:

(a) the plaintiff had a son who was born following a high risk pregnancy and died in infancy; (b) the plaintiff and his spouse had both been previously married; and (c) the plaintiff had struck his spouse.

[16] None of this information is true. Dr. Fischman admitted his errors and corrected his report. Other concerns with the information provided by Dr. Fischman to Bellwood were raised by the plaintiff; however, these were not acknowledged by Dr. Fischman to be reported in error; rather Dr. Fischman was of the view that this information was supported by the plaintiff’s medical history.

[17] The plaintiff complained the day following the assessment that he felt “humiliated and degraded” by the assessment and demanded a copy of the report/information provided to Bellwood. On January 29th 2014 the plaintiff received the material provided to Bellwood. On that date the plaintiff identified or was able to identify the inaccurate information contained in the report and upon which the assessing physician relied in conducting the assessment. In his email of February 2, 2014 the plaintiff claimed that he had suffered damage from the conduct of the RCMP and in particular, Dr. Fischman. He states: “I cannot stress that this is an extremely serious matter that has had significant impact (past/present & future) on my career, well-being and other sub-sequential areas.”

[18] On February 1, 2014, the plaintiff sought legal counsel and advice. On February 3, 2014 the plaintiff writes to Dr. Fischman: “I am working on my next steps in regards to the issues that have come to light.”

[19] In his affidavit filed in support of his position on this motion the plaintiff makes vague reference to other incidents of misconduct on the part of the RCMP. For example he deposes:

(a) at paragraph 1, “This action arises out of a series of incidents that occurred during the course of my employment with the [RCMP]; these incidents caused psychological injuries to me and left me unable to work at my job with the RCMP or at any form of employment.” (b) at paragraph 5, “no efforts were made by the RCMP to deal with the effects that were experienced by their officers including me [in regards to the investigation of the a rape and murder of a 13-year-old girl in December 2002]”; and (c) at paragraph 16, “the workplace environment was toxic for me”, “fellow workers were giving me dirty looks and were disingenuous in their efforts to stay connected to me.”

[20] No details have been provided to support the plaintiff’s position that the treatment he was offered and received from the RCMP entirely lacked in dealing with the effects of his PTSD. The plaintiff concludes that his workplace was toxic yet provides no examples of conduct on the part of the RCMP which led to that toxicity and which might reasonably support the plaintiff’s view. The plaintiff provides no evidence of any incidents occurring subsequent to February 5, 2014. Therefore, the only conduct of the RCMP upon which the plaintiff’s claims may be reasonably founded is the assessment and the erroneous report of Dr. Fischman.

[21] The plaintiff was disclosed the report on January 16, 2014 and he consulted with legal counsel on February 1, 2014. The inaccurate information contained in the report led to the plaintiff feeling humiliated and degraded during his assessment at Bellwood. The impact of his negative experience at Bellwood comprises the “injury” or “tort”.

[22] There is no question, the plaintiff knew the alleged tortfeasor or wrongdoer was the RCMP. The full extent of the impact of Dr. Fischman’s misreporting and the humiliation and degradation felt by the plaintiff during the assessment conducted on January 14, 2014, on the mental health of the plaintiff and career advancement within the RCMP (that is, the extent of the plaintiff’s damages) may not have been known to the plaintiff until July 2015 or even the date of Dr. Vernon-Scott’s report of September 19, 2016. However, I find that the plaintiff had “discovered” his claim by, at the latest, February 3, 2014. By this date, the plaintiff was in receipt of the report, had reviewed the report, had received legal advice and was aware (as he indicated to the RCMP) that litigation was an option as he was considering his “next steps in regards to the issues that have come to light”.

[23] This litigation was commenced more than two years after the date on which the claim was discovered and, accordingly, I find that the plaintiff’s claims are statute-barred. For the same reasons, the new causes of action pleaded in the Fresh as Amended Statement of Claim of June 7, 2017 are similarly statute-barred.

[24] The plaintiff now bears the burden of proving he did not discover his claims until a date subsequent to February 5, 2014. The plaintiff did not file a reply to the Statement of Defence which pleaded the Limitations Act, 2002, in defence. Moreover, the plaintiff’s affidavit filed in response to this motion, does not contain any evidence with respect to his position on the issue of discoverability.

[25] I find that the plaintiff has not met his burden on this motion.

Jurisdiction

[26] If I have erred in my determination of the limitations issue, I will now consider the issue of whether the court should exercise its residual discretion to allow the claims to proceed or defer a determination of the plaintiff’s claims to the grievance procedure provided for under the RCMP Act and the CSO’s.

[27] Pursuant to paragraph 20.2(1)(c) of the RCMP Act, the plaintiff was required to undergo a health assessment to ascertain his fitness for duty as a precondition to returning to full operational duties.

[28] Section 19 of the Commissioner’s Standing Orders (Employment Requirements) (“CSO’s”) sets out the requirements for members who are required to undergo a medical examination or an assessment pursuant to the RCMP Act.

[29] The CSO’s set out the rules respecting health assessments.

[30] Pursuant to subsection 20(2) of the CSO’s (employment requirements) a member who is aggrieved by a directive to require the member to undergo a medical examination or assessment pursuant to paragraph 20.2(1)(c) of the RCMP Act may seek redress by means of an appeal of the directive in accordance with the CSO’s (Grievances and Appeals) and the CSO’s (Grievances) for grievances presented prior to November 28, 2014.

[31] Assuming the plaintiff’s psychological injuries were triggered by the assessment, the decision and/or conduct of the RCMP of which the plaintiff complains (expressly or impliedly) may be summarized as follows:

(a) the requirement for a comprehensive fitness assessment as a precondition to a return to full time operational duties; (b) the negligence of Dr. Fischman in preparing and submitting an inaccurate report; (c) the manner in which the assessment was conducted, including comments made to the plaintiff; (d) the decision to refuse the assessment of Dr. Ferguson on the issue of fitness; and (e) the decision to refuse to return the plaintiff to fulltime operational.

[32] The defendant argues that the matters complained of in the claim constitute workplace grievances – that is conduct and/or decisions of the RCMP made in the context of the parties’ employment relationship.

[33] The plaintiff did not file a grievance with respect to any decision or any of the conduct of the RCMP listed above. At paragraph 17 of his affidavit, the plaintiff explains his reasons for not grieving as follows:

As an employee of the RCMP I was aware of their internal grievance process. I had used that process on one prior occasion in relation to the payment of my wife’s psychological counselling sessions. I did not believe that the grievance process was the proper way to deal with my work problems and in particular my employer’s refusal to allow me to return to active policing duties. In my view the problems were too widespread and amorphous. It was my belief that there was no one specific issue to grieve. (emphasis added)

[34] This paragraph is problematic because it is inconsistent. The plaintiff identifies the work problem as “[the RCMP’s] refusal to allow [him] to return to active policing duties” and then goes on to state that there “was no one specific issue to grieve”. The RCMP’s refusal is a discrete issue which was identified by the plaintiff.

[35] Vaughan v. R. [8] is the leading case. In Vaughan the Supreme Court of Canada extrapolated on the principles established in Weber v. Ontario Hydro [9] where it was held that to determine whether a dispute arises out of a collective agreement or other administrative process the court must consider two elements: the nature of the dispute; and the ambit of the collective agreement.

[36] In Vaughan the court considered the question of whether the judicial restraint preached in the Weber line of authorities applies to a statutory labour relations scheme which does not provide for independent adjudication. The legislation in question in Vaughan was the Public Service Staff Relations Act which contained only a limited privative clause that did not oust the court’s jurisdiction in all matters and did not provide for independent adjudication of grievances. It was held that courts should generally decline to deal with workplace related issues. In writing for the majority, Binnie J. stated at para. 39:

… Where Parliament has clearly created a written comprehensive scheme for dealing with labour disputes as it has done in this case, courts should not jeopardize the comprehensive dispute resolution process contained in the legislation by permitting routine access to the courts. While the absence of independent third-party adjudication may, in certain circumstances impact on the court’s exercise of its residual discretion as in the whistleblower cases the general rule of deference in matters arising out of labour relations should prevail.

[37] As noted above, there are two elements that must be considered in determining whether deference should be given to the statutory grievance process established under the RCMP Act and the CSO’s. These elements are:

(a) the nature of the dispute; and (b) the ambit of the dispute resolution process.

(i) The Nature of the Dispute

[38] The essential character of the dispute is determined by considering the factual context of the dispute, not how the legal issues are framed. [10] It is not relevant that the plaintiff has structured the claim as a tort and/or a breach of contract.

[39] In the Fresh as Amended Statement of Claim, the plaintiff alleges harassment by members of the RCMP for the first time. Mental distress is raised as a new cause of action. In paragraph 15 of the claim the plaintiff alleges the RCMP: “ignored or chastised” him and that his superiors “bullied and harassed” him. No particulars of the harassment alleged by the plaintiff are pleaded. No individuals are named as defendants. The plaintiff’s affidavit provides no particulars to support the allegations of harassment.

[40] A common theme runs throughout the allegations in the pleadings and the plaintiff’s responding affidavit – he feels marginalized, alienated, isolated and helpless because he was restricted to administrative duties and refused fulltime operational duties.

[41] After reviewing the evidence, I find that the only conduct of the RCMP which could reasonably support the plaintiff’s claims is the RCMP’s refusal to reinstate the plaintiff to active fulltime policing duties. The failure of the RCMP to reinstate the plaintiff to full-time policing duties is a decision which clearly arises within the context of the employment relationship and therefore is presumptively subject to the grievance process provided for under the RCMP Act.

(ii) The Ambit of the Dispute Resolution Process

[42] The grievance process for RCMP members is set out in Part III of the RCMP Act. The grievance process:

(a) permits members to grieve any decision, act or omission in the administration of the RCMP’s affairs; (b) allows members to be represented; (c) grants members access to relevant documents under the RCMP’s control; (d) requires the grievor and the respondent to discuss an alternative resolution of the grievance; (e) entrusts exclusive jurisdiction of the grievance to the joint grievance review process it creates, which is comprised of: (i) a Level I or initial level of grievance review; (ii) a Level II or final level of grievance review; and (iii) a final review of the grievance by the Commissioner of the RCMP.

[43] The plaintiff was entitled to present his grievance in writing to each of the levels up to and including the final level in the grievance process. It is clear that Parliament has created a comprehensive grievance process for RCMP members.

[44] The plaintiff argues that the grievance process will not give him access to an independent decision-making body and further argues that the nature of his claims strikes at the conduct of the very persons responsible for deciding his grievance. The Supreme Court of Canada in Vaughan makes it clear that while the lack of an independent adjudicator may be a factor in considering whether a court should exercise its discretion to hear a claim, by itself this is not enough. The general rule is that the court should decline to become involved unless there are exceptional circumstances. [11]

[45] The plaintiff relies on the decisions in Merrifield v. Canada (Attorney General) et al. [12] and Doe v. Canada (Attorney General) et al. [13] In both cases, the court held that the statutory scheme was unsuitable and allowed the action to proceed. In Merrifield the plaintiff alleged he had been harassed by certain of his superiors within the RCMP. These individuals were named as defendants in the action. The court found that the facts pleaded in the case could not be resolved without consideration of credibility by an independent third party not available under the grievance scheme under the RCMP Act. In finding exceptional circumstances, the Ontario Court of Appeal noted:

[W]e do not agree that the decision in Vaughan was intended to apply to all disputes that arise out of the employment relationship, with the exception of “whistle-blower” type cases. A harassment claim raises virtually the same credibility issues as the case of harassment does to a whistle-blowing employee.

[46] In Doe the plaintiff alleged he had been harassed by certain of his superiors and other members of the RCMP with whom he worked. These individuals were named as defendants in the action. The court held that:

The success or failure of the Plaintiff’s claims and the defences of the Defendants for that matter, turn almost solely on the credibility and reliability of the witnesses and participants in the grievance process… The credibility and reliability of the evidence in support of the facts alleged by the plaintiff need to be assessed by an independent third party and an independent process.

[47] This is motion for summary judgment, not a rule 21 motion to strike the claim as was the case in both Merrifield and Doe. As earlier indicated in these reasons, it is presumed that all evidence necessary to decide the issues in the action are before the court and that no better evidence would be available at trial. I find there is no evidence before the court to support the plaintiff’s allegation of harassment contained in his amended pleading and his affidavit. No members of the RCMP have been identified by the plaintiff as responsible for the harassment nor have any individual members of the RCMP been named as defendants in this action. Credibility is not an issue because there is no actual evidence of the plaintiff (aside from his allegations and conclusions) to refute.

[48] The fact that the plaintiff will not receive financial compensation in the form of damages as claimed is not sufficient basis to exercise my residual jurisdiction. This issue was discussed in Smith v. Royal Canadian Mounted Police: [14]

…As pointed out in Adams v. Cusack, the administrative scheme does not have to provide for exactly the same remedy as would a court. What is important is that the scheme provides a solution to the problem. It is also important to recognize that most administrative schemes for resolving employment disputes do not envisage, for example, the payment of damages for the intentional infliction of emotional distress. Usually reimbursement for lost wages and reinstatement to a position lost is sufficient for purposes of redressing a wrong. However one cannot simply avoid resort to the administrative scheme by making a claim in damages with respect to a wrong that is not compensable under the administrative scheme. Otherwise it would be too easy to bypass an administrative scheme for resolving employment disputes even though it is capable of providing “effective” but not “perfect” redress.

[49] I find the grievance process under the RCMP Act and the CSO’s is a comprehensive scheme which Parliament intended to have exclusive jurisdiction over employment relations between the RCMP and its members. The facts of this case and the evidentiary record before me do not raise this case to the level of one which presents with exceptional circumstances so as to warrant the exercise of the court’s residual discretion to exempt the plaintiff’s claims from the grievance process. The plaintiff remains an employee of the RCMP to this day. The grievance process has been and remains available to him as a means to redress the alleged wrongs.

Disposition

[50] The defendant’s motion is granted. The action is dismissed.

Costs

[51] As the successful party, the defendant is entitled to its costs of the motion and the action. Absent an agreement of the parties on the issue of costs, costs submissions shall be submitted in accordance with the following schedule:

(a) The defendant shall serve and file its costs submissions, not exceeding 5 pages in length, exclusive of any costs outline, time dockets and case law, within 15 days; (b) the plaintiff’s responding submissions not exceeding 5 pages in length, exclusive of any costs outline, time dockets and case law, shall be served and filed within 15 days thereafter; and (c) any reply submissions not exceeding 3 pages in length, 5 days thereafter.

“Justice A.K. Mitchell” Justice A. K. Mitchell Date: July 16, 2018

[1] In the Notice of Motion the defendant also relied on s. 9 of the Crown Liability and Proceedings Act; however, did not pursue this ground during argument. [2] Hryniak v. Mauldin, 2014 SCC 7, 2014 CarswellOnt 640 (SCC). [3] Chernet v. RBC General Insurance Co., 2017 CarswellOnt 5952 (C.A.) at para. 12. [4] Sweda Farms Ltd. v. L.H. Gray & Son Ltd., 2014 CarswellOnt 11926 (S.C.J.) at para. 26. [5] Ibid., at para. 27. [6] Peixeiro v. Haberman, [1997] 3 SCR 549 at para.18. [7] Hamilton (City) v. Metcalfe & Mansfield Capital Corp., 2012 ONCA 156 at paras. 54 – 55. [8] Vaughan v. R., 2005 SCC 11. [9] Weber v. Ontario Hydro, [1995] 2 S.C.R. 929 (SCC). [10] Weber. Supra, at para. 49. [11] Lebrasseur v. Canada, 2007 CarswellNat 3433 (FCA) at para 18. [12] Merrifield v. Canada (Attorney General) et al., 2009 ONCA 127. [13] Doe v. Canada (Attorney General) et al., 2017 ONSC 2835. [14] Smith v. Royal Canadian Mounted Police, 2007 NBCA 58, [2007] N.B.J. No. 244 (C.A.) at para. 50.