COURT FILE NO.: CV-19-00631144-0000
DATE: 2021-07-21
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
FRANK DERENZIS
Plaintiff
- and -
RON JOHNSON, MATT DOTO and TED AIVALIS
Defendants
Osborne G. Barnwell for the Plaintiff.
Lorne Honickman and William McLennan for the Defendants.
HEARD: June 14, 2021
PERELL, J.
REASONS FOR DECISION
A. Introduction
[1] This is pleadings melee in which the Plaintiff Frank Derenzis has delivered three versions of his Statement of Claim concerning events that began in the late winter of 2016 when he lost an election for a governance position at Toronto Civic Employees’ Union, CUPE Local 416.
[2] Mr. Derenzis delivered: (a) a Statement of Claim; (b) a Fresh as Amended Statement of Claim; and he seeks to deliver: (c) a Second Fresh as Amended Statement of Claim.
[3] In his first pleading, a Statement of Claim dated December 11, 2019 (based on a Notice of Action issued on November 15, 2019), Mr. Derenzis sued: (a) Ron Johnson, who is a Vice-President of Local 416, for defamation; (b) Ted Aivalis, who is a Vice-President of Local 416, for battery, defamation, and negligence; and (c), Matt Doto, who was Local 416’s Election Returning Officer, for negligence. There is no claim against Local 416.
[4] In his second pleading, a Fresh as Amended Statement of Claim, which was delivered in February 2020 after the Defendants had moved to strike the first pleading, Mr. Derenzis made additional allegations against Mr. Johnson, Mr. Aivalis, and Mr. Doto and added causes of action for fraud and breach of contract. There is no claim against Local 416.
[5] In his third pleading, a Second Fresh as Amended Statement of Claim, which was delivered in June 2021 as part of a cross-motion, Mr. Derenzis seeks to join Local 416 as a party defendant and to advance a tort claim of civil conspiracy against all the Defendants. Mr. Derenzis also seeks a declaration that findings made against him by Local 416’s complaint and disciplinary tribunals be declared null and void. The third Statement of Claim abandons the defamation claims against Mr. Johnson and Mr. Aivalis. It abandons the negligence claim against Mr. Doto. There is no clear pleading of breach of contract. In the third Statement of Claim, the battery allegation against Mr. Aivalis is asserted to be a wrongful act in furtherance of the alleged civil conspiracy.
[6] Because of the opposed delivery of the second iteration of Mr. Derenzis’ Statement of Claim and because of his cross-motion for permission to deliver the third iteration of the pleading, practically speaking, the Defendants Johnson, Doto and Aivalis and the Defendant Local 416, which was added to the third iteration of the pleading, are moving to strike all three iterations of the Statement of Claim and to have Mr. Derenzis’ action dismissed on a variety of bases including that: (a) the pleadings do not disclose a reasonable cause of action; (b) the pleaded claims are statute-barred by the Limitations Act, 2002[^1]; or (c) the pleadings offend the rules of pleading of the Rules of Civil Procedure.[^2]
[7] For the reasons that follow, except for the battery claim against Mr. Aivalis, should Mr. Derenzis wish to pursue it, I strike all three Statements of Claim without leave to amend.
B. Procedural Background
[8] On November 15, 2019, by Notice of Action, Mr. Derenzis, then self-represented, commenced an action against Mr. Johnson, Mr. Doto, and Mr. Aivalis.
[9] On December 11, 2019, Mr. Derenzis delivered his Statement of Claim. Mr. Derenzis prepared the pleading with the assistance of a law student. He sued Mr. Johnson for: (a) defamation. He sued Mr. Aivalis for: (a) battery; and (b) defamation. He sued Mr. Doto for: (a) negligence in how he conducted the union elections.
[10] On December 30, 2019, the Defendants delivered a Notice of Intent to Defend.
[11] The Defendants invited Mr. Derenzis to discontinue, and when he declined, they brought a motion to strike the Notice of Action and Statement of Claim. The motion was made returnable on April 17, 2020.
[12] On February 10, 2020, the Defendants served their notice of motion to strike Mr. Derenzis’ first pleading.
[13] On February 14, 2020, Mr. Derenzis delivered a Fresh as Amended Statement of Claim pursuant to rule 26.02 (a) of the Rules of Civil Procedure, which provides that before the close of pleadings a party may amend his or her pleading without leave if the amendment does not include the addition, deletion, or substitution of a party to the action. Mr. Derenzis prepared the pleading with the assistance of the law student.
[14] In the Fresh as Amended Statement of Claim, Mr. Derenzis made additional allegations against Mr. Johnson, Mr. Aivalis, and Mr. Doto. He sued Mr. Johnson for: (a) breach of contract; (b) defamation; (c) fraud; and (d) negligence. He sued Mr. Aivalis for: (a) battery; (b) breach of contract; (c) defamation; (d) fraud; and (e) negligence. He sued Mr. Doto for: (a) fraud; and (b) negligence.
[15] Relying on Thelwell v. Elaschuk,[^3] the Defendants opposed the delivery of the second iteration of the Statement of Claim because it was made while their motion to strike the first pleading was pending.
[16] On March 15, 2020, because of the Covid-19 pandemic, the Ontario government declared a state of emergency. As a result, the courts suspended operations and the Defendants’ motion to strike was not heard on April 17, 2020.
[17] In the fall of 2020, the Defendants’ motion was rescheduled for December 16, 2020.
[18] On December 16, 2020, Justice Papageorgiou adjourned the motion so that Mr. Derenzis could retain counsel. She also directed him to provide his responding material by February 16, 2021. Mr. Derenzis did not provide his responding material, and on March 3, 2021, Justice Papageorgiou adjourned the matter again to June 7, 2021 to allow him more time to retain counsel.
[19] On May 26, 2021, Mr. Derenzis retained counsel.
[20] On May 31, 2021, the Defendants delivered their Fresh as Amended Factum for the pleadings motion.
[21] On June 4, 2021, Mr. Derenzis brought a cross-motion for leave to deliver a Second Fresh as Amended Statement of Claim, the third iteration of his Statement of Claim. In this iteration of the pleading, Mr. Derenzis sought declarations and he proposed to add Local 416 and to advance a tort claim for civil conspiracy. Mr. Derenzis supported his cross-motion with an affidavit dated June 4, 2021.
[22] In his Second Fresh as Amended Statement of Claim, Mr. Derenzis sued Mr. Johnson for civil conspiracy. He sued Mr. Aivalis for: battery; and civil conspiracy. He sued Mr. Doto for civil conspiracy. He sued Local 416 for: civil conspiracy; and a declaration that the trial tribunal and appeal tribunal of Local 416 findings are null and void.
[23] On June 9, 2021, Mr. Derenzis delivered an affidavit dated June 9, 2021 from Natalia Barabash, the assistant to his lawyer, Osborne G. Barnwell. She attached a legal memorandum prepared by Mr. Barnwell about joinder of parties and causes of action. Also on June 9, 2021, Mr. Derenzis delivered his Responding Factum for the motion and his cross-motion.
[24] On June 9, 2021, the Defendants delivered an affidavit dated June 9, 2021 from Mark McGennon. He is a law clerk for the Defendants’ lawyers. Mr. McGennon deposed about the procedural history and provided a copy of the Union’s Constitution. Also on June 9, 2021, the Defendants delivered their Reply Factum for the motion and the cross-motion.
C. Facts
[25] Because the peculiar way the motion and the cross-motion were prosecuted, the material facts that provide factual background to the motions are extracted from all three iterations of Mr. Derenzis’ Statements of Claim. The factual background is as follows.
[26] Mr. Derenzis is a resident of Toronto and an employee of the City of Toronto. He also was an employee of the union. He joined the union in 1980 and since 1986, Mr. Derenzis had various positions in Local 416. He pleads that his association with the union gave him happiness and meaning to his life. He pleads that outside of his role at the union, he had no life to speak of.
[27] In the late winter of 2016, Mr. Derenzis and Mr. Johnson ran for the position of 2nd Vice-President and Mr. Johnson was the successful candidate.
[28] After the election, Mr. Derenzis was one of a group that complained of election improprieties. He alleged wrongdoing by Denise Rehel, Mr. Johnson’s assistant. Mr. Derenzis alleges that his complaint angered and embittered Mr. Johnson.
[29] On April 8, 2016, Mr. Derenzis went to a union meeting at Thorncliffe Banquet Hall. The meeting was about a Housing Unit ratification vote. While outside the meeting hall, Mr. Derenzis was asked to leave by Mr. Johnson and by Matt Figliano, Local 416’s Executive Vice-President. It is alleged that Mr. Johnson, motivated by his animosity towards Mr. Derenzis, angrily and threateningly told Mr. Derenzis that the meeting was only for members of the Housing Unit. Mr. Johnson swore at Mr. Derenzis and called him stupid and accused him of laying charges against Ms. Rehel, his assistant. An angry crowd of union members gathered, and Mr. Derenzis felt intimidated and unsafe.
[30] On April 11, 2016, Mr. Johnson wrote a letter to Local 416 that alleged that Mr. Derenzis had been distributing campaign material for election at the meeting of the Housing Unit and recording conversations with union members contrary to the Union’s Constitution.
[31] Meanwhile, on April 11, 2016, Mr. Derenzis filed charges that Mr. Johnson had breached the Union’s Constitution.
[32] On April 12, 2016, Mr. Johnson issued a complaint that Mr. Derenzis’ conduct at the meeting was contrary to the Union Constitution and that Mr. Derenzis had misrepresented himself as a Vice-President of Local 416.
[33] Mr. Derenzis alleges that the contents of Mr. Johnson’s letter of April 11, 2016 and his complaint of April 12, 2016 were defamatory.
[34] On April 18, 2016, Mr. Derenzis filed additional charges against Mr. Johnson including charges that Mr. Johnson had misrepresented and produced a false report and false accusations about a union member.
[35] On November 3, 2017, a CUPE National Representative notified both parties of the hearing dates of the rival complaints and provided instructions for disclosure of documents before the hearings.
[36] On November 16, 2017, there was a disciplinary hearing at the Union Hall to hear Mr. Johnson’s complaint against Mr. Derenzis. The tribunal was composed of five union members (Carpino, Gaunthier, Malato, Tajanovski, Willis). Mr. Derenzis believes that the panel members were political allies of Mr. Johnson and biased in his (Mr. Johnson’s) favour and against Mr. Derenzis.
[37] At the hearing, Mr. Derenzis’ request for an adjournment was denied notwithstanding that he had not been provided with the documents before the hearing as had been specified by the CUPE National Representative.
[38] At the complaint hearing, Mr. Johnson told the tribunal that at the April 8, 2016 meeting of the Housing Unit, Mr. Derenzis had misrepresented himself as 2nd Vice-President, distributed strike literature, harassed members attending the meeting, made recordings outside the meeting and interfered with the members of the Housing Unit.
[39] Mr. Derenzis alleges that Mr. Johnson’s statements to the tribunal were defamatory. He alleges that the conduct of the hearing including the attendance of union executives in the audience was unfair to him. He alleges that the panel was biased.
[40] The tribunal unanimously found that Mr. Derenzis had breached articles B.11.1 (a)(e)(h)(j) and (k) of the Union Constitution. The tribunal suspended his membership for four years and among other things prohibited him from recording union members.
[41] On November 20, 2017, Mr. Derenzis’ complaint against Mr. Johnson was heard by a tribunal panel of five union members (Corbett, Gunnyan, Maugeri, Minichiello. Wilkes). Mr. Maugheri had been a witness for Mr. Johnson at the November 16, 2017 hearing, but he declined to recuse himself despite Mr. Derenzis’ request that he do so. During Mr. Derenzis’ complaint hearing, the President of Local 416, who is an ally of Mr. Johnson, bought pizzas for the tribunal members. Mr. Derenzis alleges that the hearing was a fiasco and that he was denied procedural fairness including interruptions in his presentation of evidence, interference by the attendance of union executives, and a biased tribunal.
[42] The pleadings do not disclose what was the outcome of Mr. Derenzis’ complaint against Mr. Johnson, but I infer that Mr. Johnson was successful.
[43] On December 14, 2017, Mr. Derenzis filed an appeal of the decision in Mr. Johnson’s complaint against Mr. Derenzis.
[44] On April 18 and 19, 2018, an appeal panel of three members (Gill, Légère, McFadgen) heard Mr. Derenzis’ appeal. At the appeal hearing, Mr. Johnson, who was represented by Mr. Aivalis, both repeated Mr. Johnson’s account of what had occurred at the meeting of the Housing Unit.
[45] In May 2018, the Appeal Panel dismissed the appeal and banned Mr. Derenzis from running for office for three years but voided the other penalties including the suspension of his membership.
[46] Mr. Derenzis alleges that he suffered damages as a result of the defamatory statements of Mr. Johnson and Mr. Aivalis.
[47] On September 24, 2018, there was a Union meeting for nominations for union positions. Mr. Derenzis alleges that he was assaulted by Mr. Aivalis at the meeting. Mr. Derenzis pleads that Mr. Aivalis violently seized the microphone that Mr. Derenzis was using to address the audience.
[48] Prior to the nomination meeting, in August 2018, Mr. Derenzis had submitted his application forms for the offices of: (a) Chief of Stewards/3rd Vice-President; (b) 2nd Vice-President; and (c) President. At the nomination meeting, Mr. Doto who was the Returning Officer did not announce Mr. Derenzis’ candidacies and unilaterally decided that Mr. Derenzis was not eligible for election. Mr. Derenzis alleges that Mr. Doto had a duty of care to determine whether Mr. Derenzis was eligible to run in the election.
[49] I pause here in the narrative to observe that Mr. Doto’s actions would appear to be consistent with the ruling of the appeal tribunal that Mr. Derenzis could not stand for election for three years, but, nevertheless, Mr. Derenzis asserts that he was an eligible candidate for election and that Mr. Doto is liable for negligence.
[50] In any event, Mr. Derenzis pleads that he was nominated for election at the meeting. But despite his attempts to seek nomination all top executive positions save for two positions were filled by acclamation. He pleads that he was barred from running when he was the only eligible candidate for President in accordance with Local 416’s election regulations.
[51] Mr. Derenzis states that in light of the gross violations of the Union Constitution and the misconduct of the complaint hearings and of the election, he had no choice but to turn to the courts. Before he did so, he approached Local 416 to secure legal counsel but his request was ignored; i.e. refused. Local 416, however, was later to assist the Defendants in obtaining legal representation. Mr. Derenzis alleges that this was in violation of the Union Constitution that requires even-handed treatment if legal assistance is offered or refused. He alleges that the denial of legal assistance was part of the civil conspiracy against him.
[52] On November 15, 2019, by Notice of Action, Mr. Derenzis, then self-represented, commenced an action against Mr. Johnson, Mr. Doto, and Mr. Aivalis. On December 11, 2019, Mr. Derenzis delivered his Statement of Claim. He sued Mr. Johnson for defamation. He sued Mr. Aivalis for battery and defamation. He sued Mr. Doto for negligence.
[53] On February 14, 2020, Mr. Derenzis delivered a Fresh as Amended Statement of Claim pursuant to rule 26.02 (a) of the Rules of Civil Procedure in which he made additional allegations against Mr. Johnson, Mr. Aivalis, and Mr. Doto. He sued Mr. Johnson for: breach of contract, defamation, fraud, and negligence. He sued Mr. Aivalis for: battery, breach of contract, defamation, fraud, and negligence and for battery. He sued Mr. Doto for fraud and negligence.
[54] On June 4, 2021, Mr. Derenzis brought a cross-motion for leave to deliver a Second Fresh as Amended Statement of Claim, the third iteration of his Statement of Claim. In this iteration of the pleading, Mr. Derenzis proposed to add Local 416 and to advance a tort claim for civil conspiracy and also claims for declaratory relief.
[55] In the Second Fresh as Amended Statement of Claim, which was prepared by a lawyer, Mr. Derenzis concisely summarizes the nature of his causes of action in paragraph 7 as follows:
- The claim concerns conduct by the Union and others as named in disenfranchising the plaintiff from being active in the Union. In particular, the Union conspired with the named parties to convoke internal trials and an appeal which robbed him of his participatory rights which was against natural justice. The findings made at these internal processes improperly barred the plaintiff from enjoying the opportunity to be voted in as president in the elections in or about September 2018. The relief claimed above is for damages suffered as a result of the loss of that opportunity. In addition, the plaintiff claims against Aivalis for damages suffered as a result of the tort of assault and battery and scandalous conduct which injured his reputation. Given the reprehensible conduct at issue, the plaintiff asks the court to award punitive damages.
[56] Mr. Derenzis pleads that when all of the facts as pled are considered, there is a clear organized effort to act oppressively towards him, with the objective of denying him his legal rights as a member of the union. He states that he has been denied a fair hearing and his natural justice rights were violated for the purpose of punishing him. He pleads that the defendants were organized to use illegal means to do him harm and that the defendants had the intent to harm him. He states he was overwhelmed with the intensity at which the Union and others such as Johnson, Aivalis and Doto targeted him and disregarded his humanity.
[57] In addition to punitive damages, Mr. Derenzis claims consequential damages of the loss of opportunity of election are as follows: loss of income of $125,000 for 3 years; loss of the union car travel allowance of $700 monthly for three years; and loss of cell phone subsidy up to $200 monthly for the three years. In addition, the loss of the increased retirement pensionable income which is normally based on 70% of best years earnings.
D. Law
1. The Law of Groups
[58] Underlying Mr. Derenzis’ causes of action and his request for declaratory relief is the law associated with groups including labour unions. The court’s jurisdiction to intervene in the affairs of a group depends on the presence of a legal right founded in tort, contract, restitution, or a statutory provision; courts only interfere if legal rights are at stake.[^4] The courts will not intervene where no civil or property right is involved in the activities of the group.[^5]
[59] When the group has a written constitution and by-laws, the documents constitute a contractual relationship setting out the rights and obligations of the group and its members.[^6] Voluntary groups are a complex of contracts between each and every other member.[^7] There are multiple contracting parties, entering and leaving the relationship, and being subject to changing contractual obligations as constitutions and bylaws are amended from time to time.[^8] The voluntary group and its members are bound by the terms of the constitution and by-laws and there is an obligation on the part of the group to observe its constitution and by-laws.[^9]
[60] Thus, if there is a contractual arrangement, the court may have jurisdiction to review the decisions and procedures of a group operating in the private sector as a matter of contract.[^10] Members of groups that have constitutions, by-laws, and rules are entitled to private law remedies to have their agreement enforced in accordance with its proper interpretation.[^11]
[61] Where the court has jurisdiction because there is a contractual relationship between the group and its members, the court may determine whether the voluntary group or unincorporated association acted in accordance with its rules, whether it acted in accordance with the principles of natural justice, and whether the decision was come to bona fide.[^12]
[62] Apart from contract, there is, however, no free-standing right to procedural fairness with respect to the decisions of a group operating in the private sector. [^13] Once it is established that a contract exists, an expectation of procedural fairness may attach as a way of enforcing the terms of the contract.[^14] The requirements of procedural fairness depend on the circumstances, including the nature of the organization and the seriousness of the consequences of discipline.
2. Motions to Strike Pleading
[63] The Defendants’ motion to strike Mr. Derenzis’ various Statements of Claim is brought pursuant to Rule 21 of the Rules of Civil Procedure, which states:
WHERE AVAILABLE
To any Party on Question of Law
21.01(1) A party may move before a judge,
(a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs;
(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence, and the judge may make an order or grant judgment accordingly.
(2) No evidence is admissible on a motion,
(a) under clause (1)(a), except with leave of a judge or on consent of the parties;
(b) under clause (1)(b).
To Defendant
(3) A defendant may move before a judge to have an action stayed or dismissed on the ground that,
Jurisdiction
(a) the court has no jurisdiction over the subject matter of the action;
Capacity
(b) the plaintiff is without legal capacity to commence or continue the action or the defendant does not have the legal capacity to be sued;
Another Proceeding Pending
(c) another proceeding is pending in Ontario or another jurisdiction between the same parties in respect of the same subject matter; or
Action Frivolous, Vexatious or Abuse of Process
(d) the action is frivolous or vexatious or is otherwise an abuse of the process of the court,
and the judge may make an order or grant judgment accordingly.
[64] The test on a motion for the determination of an issue before trial under Rule 21.01(1)(a) is whether the determination of the issue is plain and obvious.[^15] A rule 21.01(1)(a) motion uses the same test as a motion under rule 21.01(1)(b), where the court may strike out a pleading on the ground that it discloses no reasonable cause of action.[^16]
[65] Courts may determine whether a claim is statute-barred on rule 21.01(1)(a) motions, where the determination of the issue does not depend on findings of fact.[^17] Where the availability of a limitation period defence depends upon findings of fact, it is a question of mixed fact and law and not a question of law that can be decided on a motion under rule 21.[^18] A plaintiff’s claim should not be struck under rule 21.01(1)(a) based on the expiry of a limitation period, where there is a factual controversy about when the claim was discovered.[^19]
[66] Where pursuant to rule 21.01(1)(b), a defendant submits that the plaintiff’s pleading does not disclose a reasonable cause or action, to succeed in having the action dismissed, the defendant must show that it is plain, obvious, and beyond doubt that the plaintiff cannot succeed in the claim.[^20] Matters of law that are not fully settled should not be disposed of on a motion to strike, and the court's power to strike a claim is exercised only in the clearest cases.[^21]
[67] On a motion under rule 21.01(1)(b), the court accepts the pleaded allegations of fact in the statement of claim as proven, unless they are patently ridiculous or incapable of proof.[^22]
[68] The failure to establish a cause of action usually arises in one of two ways: (1) the allegations in the statement of claim do not come within a recognized cause of action; or (2) the allegations in the statement of claim do not plead all the elements necessary for a recognized cause of action.[^23] If a material fact necessary for a cause of action is omitted, the statement of claim is bad and the remedy is a motion to strike the pleadings, not a motion for particulars.[^24]
[69] On motions brought under the procedure to strike a claim or defence as untenable in law, leave to amend the pleading may and usually will be given, and leave to amend will only be denied in the clearest cases when it is plain and obvious that no tenable cause of action is possible on the facts as alleged and there is no reason to suppose that the party could improve his or her case by any amendment.[^25]
3. The Element of Civil Conspiracy
[70] As the discussion of the facts above reveals, Mr. Derenzis’ primary claim is civil conspiracy.
[71] The elements of a cause of action for civil conspiracy are: (1) two or more defendants make an agreement to injure the plaintiff; (2) the defendants: (a) use some means (lawful or unlawful) for the predominate purpose of injuring the plaintiff, or (b) use unlawful means with knowledge that their acts were aimed at the plaintiff and knowing or constructively knowing that their acts would result in injury to the plaintiff; (3) the defendants act in furtherance of their agreement to injure; and, (4) the plaintiff suffers damages as a result of the defendants' conduct.[^26]
[72] It should be noted that there are, doctrinally speaking, two types of civil conspiracy; namely: (1) unlawful means conspiracy; and (2) predominant purpose conspiracy (intention to injure conspiracy). The second type of conspiracy has the potential of making group activity unlawful notwithstanding that the alleged misconduct would be lawful for an individual.
4. Motions to Amend Pleadings
[73] Rule 26.01 provides: “[o]n motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.” A plaintiff will generally be granted leave to add a new defendant unless the proposed defendant can show non-compensable prejudice or that the claims being advanced against it are untenable at law.[^27] The rule is mandatory and amendments must be allowed unless the responding party can demonstrate prejudice that cannot be compensated by costs.[^28]
[74] Although the general rule is that amendments are presumptively approved, the court has a residual right to deny amendments where appropriate and the court will consider whether: (a) the opposing party will suffer an injustice not compensable in costs; (b) the proposed amendment is an issue worthy of trial and prima facie meritorious; (c) the amendment would have been struck if originally pleaded; and (d) the amendment contains sufficient particulars.[^29]
[75] The courts apply the liberal case law applied under rule 21.01(1)(b) to the effect that an amendment will not be denied unless assuming the facts pleaded to be true, it is plain and obvious that the amendment is untenable at law.[^30]
[76] With the exception of an amendment to plead a statute-barred claim, the onus of proving prejudice is on the party alleging it. Where a limitation period has intervened, the party seeking the amendment must lead evidence to explain the delay and to displace the presumption of prejudice.[^31]
5. Statute-Barred Causes of Action
[77] On this motion, the Defendants’ primary argument is that the joinder of Local 216 and the cause of action for civil conspiracy is statute-barred under the Limitations Act, 2002. For present purposes, the relevant provisions are sections 1, 4, 5, and 16 (1)(a), which are set out below:
Definitions
- In this Act,
“claim” means a claim to remedy an injury, loss or damage that occurred as a result of an act or omission; ….
BASIC LIMITATION PERIOD
Basic limitation period
- Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.
Discovery
- (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).
Presumption
(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.
No limitation period
- (1) There is no limitation period in respect of,
(a) a proceeding for a declaration if no consequential relief is sought;
[78] Prior to the enactment of s. 5(1)(a)(iv) of the current Limitations Act, 2002, the judge-made discoverability principle governed the commencement of a limitation period. The discoverability principle stipulated that a limitation period begins to run only after the plaintiff has the knowledge, or the means of acquiring the knowledge, of the existence of the facts that would support a claim for relief.[^32] The discoverability principle conforms with the idea of a cause of action being the fact or facts which give a person a right to judicial redress or relief against another.[^33]
[79] The discoverability principle continues to operate, and indeed has been codified by the Limitations Act, 2002, but its operation has been adjusted by s. 5(1)(a)(iv), and thus subject to s. 5(1)(a)(iv), a limitation period commences at its earliest when the plaintiff discovers the underlying material facts or, alternatively, when the plaintiff ought to have discovered those facts by the exercise of reasonable diligence, but because of s. 5(1)(a)(iv), discoverability may be postponed.
[80] Subject to the adjustment made by s. 5(1)(a)(iv), with respect to the basic limitation period of two years under the Limitations Act, 2002, a claim is “discovered” on the earlier of the date the claimant knew - a subjective criterion - or ought to have known - an objective criterion - about the claim.[^34]
[81] The discoverability of a claim for relief involves the identification of the wrongdoer, and also, the discovery of his or her acts or omissions that constitute liability.[^35] It is not enough that the plaintiff has suffered a loss and has knowledge that someone might be responsible; the identity and culpable acts of the wrongdoer must be known or knowable with reasonable diligence.[^36]
[82] For the limitation period to begin to run, it is not necessary that the plaintiff know the full extent or quantification of his or her damages; rather, the period begins to run with the plaintiff’s subjective or objective appreciation of being damaged, i.e., of being worse off than before the defendant’s conduct.[^37]
[83] Section 5(1)(a)(iv) of the Limitations Act, 2002 adjusts the operation of the discoverability principle, and s. 5(1)(a)(iv) can have the effect of delaying the commencement of the running of the limitation period. Where a person knows that he or she has suffered harm; i.e., when the plaintiff knows the elements of ss. 5(1)(a)(i),(ii), and (iii), the delay lasts until the day when a proceeding would be an “appropriate” means to remedy the harm having regard to the nature of the injury, loss or damage.
[84] The appropriateness factor of 5(1)(a)(iv) introduces some uncertainty in the operation of the Limitations Act, 2002 but it also introduces some flexibility and fairness in the application of the discovery principle, which presumptively operates against the claimant as soon as a cause of action becomes objectively apparent.[^38] In Markel Insurance Co. of Canada v. ING Insurance Co. of Canada,[^39] the Court of Appeal held that for s. 5(1)(a)(iv) to have a delaying effect, there must be a juridical reason for the person to wait; i.e., there must be an explanation rooted in law as to why commencing a proceeding was not yet appropriate. Appropriateness must be assessed on the facts of each particular case, including taking into account the particular interests and circumstances of the plaintiff.[^40]
6. Amendment to Assert New Cause of Action
[85] In the immediate case, the Defendants argue that Mr. Derenzis’ Second Fresh As Amended Statement of Claim not only introduces a new defendant to a statute-barred claim but also adds a new cause of action that would be statute-barred as against the original defendants.
[86] A cause of action is a set of facts that entitles a person to obtain a judgment in his or her favour from a court exercising its common law, equitable or statutory jurisdiction.[^41] Mr. Derenzis, however, argues that the facts as originally pleaded or as better particularized in the proposed new pleading already asserted the civil conspiracy cause of action. He submits that that no new cause of action is being pleaded but rather that he is pleading new or alternative remedies based on the same facts and already pleaded causes of actions.
[87] A new cause of action is not asserted if the amendment pleads an alternative claim for relief out of the same facts previously pleaded and no new facts are relied upon, or amount simply to different legal conclusions drawn from the same set of facts, or simply provide particulars of an allegation already pled or additional facts upon with the original right of action is based.[^42] An amendment of a statement of claim to assert an alternative theory of liability or an additional remedy based on material facts that have already been pleaded in the statement of claim does not assert a new claim for purposes of section 4 of the Limitations Act.[^43] The key is whether substantially all of the material facts of the tendered cause of action have already been pleaded, in which case, the amendment will be allowed, or whether new material facts are sought to be added to support the cause of action, in which case, the amendment will not be allowed or if already pleaded, it will be struck.[^44]
E. Discussion and Analysis
[88] Although the discussion of the facts and the law has been lengthy, the legal analysis for the motion and the cross-motion can be briefly stated.
[89] With the above discussion of the law and of the facts, which for the purposes of the pleadings motions are assumed to be true, it is immediately apparent that Mr. Derenzis has consistently pleaded a battery claim against Mr. Aivalis arising from an incident that occurred at the nomination meeting on September 24, 2018.
[90] Mr. Derenzis commenced his action against Mr. Aivalis on November 15, 2019, which was before the tolling of the limitation period, and Mr. Derenzis has never abandoned his battery claim. There is no basis to strike this cause of action, and Mr. Derenzis is entitled to prosecute the battery claim should be inclined to do so.
[91] It is also immediately apparent that the court should not grant leave to Mr. Derenzis to advance a cause of action against Local 416 for civil conspiracy or for declaratory relief.
[92] The claim against Local 416 is based on events that took place in 2017 and 2018, and Mr. Derenzis who seeks to join Local 416 in 2021 is confronted with a presumptive limitation period and the presumptive prejudice to Local 416, which is entitled to rely on the limitation period defence.
[93] As far back as 2017 and 2018, Mr. Derenzis knew the facts to advance his claims against Local 416. A limitation period commences at its earliest when the plaintiff discovers the underlying material facts or, alternatively, when the plaintiff ought to have discovered those facts by the exercise of reasonable diligence. In the immediate case, Mr. Derenzis knew he had been wronged, and he knew the perpetrators of the wrong, and there was no reason for him to wait to sue Local 416. All this is apparent from the circumstance that Mr. Derenzis knew enough to sue Messrs. Johnson, Aivalis, and Doto based on the same facts that he now alleges was a civil conspiracy. It would have been appropriate for Mr. Derenzis to sue Local 416 at the same time he sued those he now alleges were co-conspirators.
[94] Before moving on to the next question, I also add that there is additional procedural or technical problems with respect to joining Local 416. I will simply note that the proper way to sue a trade union is through a representation order under rule 12.07,[^45] which has not been applied for in the immediate case.
[95] The next question to answer is whether Mr. Derenzis can advance his civil conspiracy claim against Messrs. Johnson, Aivalis, and Doto. The answer to this question depends upon whether Mr. Derenzis is asserting a new cause of action or is just pleading an alternative claim for relief based on the same material facts already pleaded. In my opinion, the answer to this question is that Mr. Derenzis is asserting a new cause of action and it is too late for him to do so.
[96] In his 2019 Statement of Claim. Mr. Derenzis advanced discrete and separate causes of action against Mr. Johnson for defamation, against Mr. Aivalis for battery and defamation, and against Mr. Doto for negligence. In his 2019 Statement of Claim, there is no suggestion of the constituent elements of a civil conspiracy in the pleaded material facts. In my opinion, an existing cause of action for civil conspiracy cannot be based on the 2019 Statement of Claim.
[97] In his 2020, Fresh as Amended Statement of Claim, Mr. Derenzis advanced discrete and separate claims: against Mr. Johnson for breach of contract, defamation, fraud, and negligence; against Mr. Aivalis for battery, breach of contract, defamation; fraud, and negligence; and, against Mr. Doto fraud and negligence. It is arguable that the claims for breach of contract and fraud may have been statute-barred by 2020. In any event, in my opinion, an existing cause of action for civil conspiracy cannot be based on the 2020 Fresh as Amended Statement of Claim. Once again, the material facts for such a claim are not pleaded.
[98] In short, the civil conspiracy cause of action that Mr. Derenzis would have wished to pursue against Messrs. Johnson, Aivalis, and Doto and Local 416 were known to him and ought to have been known to him in 2018 and he could have appropriately advanced the claim in his 2019 action but did not do so.
[99] Moreover, it would appear that Mr. Derenzis’ civil conspiracy claim is actually being used as a vehicle to advance claims to enforce Mr. Derenzis’ contractual rights to fair treatment and natural justice in how his and Mr. Johnson’s competing complaints were dealt with in 2017 and 2018. Connected to Mr. Derenzis’ claim for damages, the declaratory claims also would be statute-barred. The limitation period runs against a claim for declaratory relief unless no consequential relief is sought and in the immediate case, Mr. Derenzis claims damages based on his claim for declarations.
[100] No purpose would be served by granting Mr. Derenzis leave to further amend his Statement of Claim. The causes of action that he actually wishes to advance are statute-barred.
F. Conclusion
[101] For the above reasons, except for the battery claim against Mr. Aivalis, should Mr. Derenzis wish to pursue it, I strike all three Statements of Claim without leave to amend. Mr. Derenzis shall have twenty days to deliver his Second Fresh as Amended Statement of Claim for battery against Mr. Aivalis failing which his action shall be dismissed in its entirety.
[102] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with the Defendants’ submissions within thirty days of the release of these Reasons for Decision followed by Mr. Derenzis’ submissions within a further thirty days.
[103] I conclude by commending Mr. Barnwell for his coming forward in the great traditions of the legal profession to assist Mr. Derenzis with professional legal advice but that able assistance came too late for declaratory relief or for Mr. Derenzis to advance a civil conspiracy claim against the Defendants or Local 416.
Perell, J.
Released: July 21, 2021
COURT FILE NO.: CV-19-00631144-0000
DATE: 20210721
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
FRANK DERENZIS
Plaintiff
- and -
RON JOHNSON, MATT DOTO and TED AIVALIS
Defendants
REASONS FOR DECISION
PERELL J.
Released: July 21, 2021
[^1]: S.O. 2002, c. 24, Sch. B. [^2]: R.R.O. 1990, reg. 194. [^3]: 2020 ONSC 340, at paras. 25-26. [^4]: Karahalios v Conservative Party of Canada, 2020 ONSC 3145; Bell v. Civil Air Search and Rescue Assn., 2018 MBCA 96; Highwood Congregation of Jehovah's Witnesses (Judicial Committee) v. Wall, 2018 SCC 26; Lakeside Colony of Hutterian Brethren v. Hofer, 1992 37 (SCC), [1992] 3 S.C.R. 165. [^5]: Surrey Knights Junior Hockey v. Pacific Junior Hockey League, 2018 BCSC 1748; Bell v. Civil Air Search and Rescue Assn., 2018 MBCA 96; Highwood Congregation of Jehovah's Witnesses (Judicial Committee) v. Wall, 2018 SCC 26. [^6]: Aga v. Ethiopian Orthodox Tewahedo Church of Canada, 2020 ONCA 10; Hellenic Congress of Quebec v. Canadian Hellenic Congress, 2020 ONSC 2224; Chaudhary v. Canadian Society of Respiratory Therapists, 2007 BCSC 467; Street v. B.C. School Sports, 2005 BCSC 958; Conacher v. Rosedale Golf Association Ltd., [2002] O.J. NO. 575 (S.C.J.); Senez v. Montreal Real Estate Board, 1980 222 (SCC), [1980] 2 S.C.R. 555; Lee v. Showmen’s Guild of Great Britain, [1952] 1 All E.R. 1175 (C.A.). [^7]: Ahenakew v. MacKay (2004), 2004 12397 (ON CA), 71 O.R. (3d) 130 at paras. 20 and 26 (C.A.). [^8]: Karahalios v Conservative Party of Canada, 2020 ONSC 3145; Chaudhary v. Canadian Society of Respiratory Therapists, 2007 BCSC 467 at para. 33; Whittall v. Vancouver Lawn Tennis and Badminton Club, 2005 BCCA 439. at para. 50. [^9]: Aga v. Ethiopian Orthodox Tewahedo Church of Canada, 2020 ONCA 10 at para. 43. [^10]: Highwood Congregation of Jehovah's Witnesses (Judicial Committee) v. Wall, 2018 SCC 266; Senez v. Montreal Real Estate Board, 1980 222 (SCC), [1980] 2 S.C.R. 555; Hofer v. Hofer, 1970 161 (SCC), [1970] S.C.R. 958; Shergill v. Khaira, [2015] A.C. 359 (S.C.); Lee v. Showmen’s Guild of Great Britain, [1952] 1 All E.R. 1175 (C.A.). [^11]: Knox v. Conservative Party of Canada, 2007 ABCA 295, leave to appeal to S.C.C. ref’d, [2007] S.C.C.A. No. 567. [^12]: Karahalios v Conservative Party of Canada, 2020 ONSC 3145; Hellenic Congress of Quebec v. Canadian Hellenic Congress, 2020 ONSC 2224; Arsenault v. Progressive Conservative Party of Ontario, 2018 ONSC 1663; Kwantlen University College Student Assn. v. Canadian Federation of Students - British Columbia Component, 2011 BCCA 133; Street v. B.C. School Sports, 2005 BCSC 958; North Shore Independent School Society v. B.C. School Sports Society, 1999 6539 (BC SC), [1999] B.C.J. No. 143 at para. 37 (S.C.); Lakeside Colony of Hutterian Brethren v. Hofer, 1992 37 (SCC), [1992] 3 S.C.R. 165; Vancouver Hockey Club v. 8 Hockey Ventures Inc. (1987), 1987 2461 (BC SC), 18 B.C.L.R. (2d) 372 (S.C.); Hofer v. Hofer, 1970 161 (SCC), [1970] S.C.R. 958; Baird v. Wells (1890), 44 Ch. D. 661, at p. 670. [^13]: Highwood Congregation of Jehovah's Witnesses (Judicial Committee) v. Wall, 2018 SCC 26. [^14]: Aga v. Ethiopian Orthodox Tewahedo Church of Canada, 2020 ONCA 10 at para. 26; Hellenic Congress of Quebec v. Canadian Hellenic Congress, 2020 ONSC 2224; Chaudhary v. Canadian Society of Respiratory Therapists, 2007 BCSC 467; Kaplan v. Canadian Institute of Actuaries, 1994 9065 (AB KB), [1994] A.J. No. 868 (Q.B.), aff'd 1997 ABCA 310, [1997] A.J. No. 874 (C.A.); Lee v. Showmen’s Guild of Great Britain, [1952] 1 All E.R. 1175 (C.A.). [^15]: Rennie v. Kelsey’s Restaurants Inc., 2011 ONSC 4027 at para. 21; MacDonald v. Ontario Hydro (1994), 1994 7294 (ON SC), 19 O.R. (3d) 529 at paras. 9-11 (Gen. Div.), aff’d (1995), 1995 10628 (ON SC), 26 O.R. (3d) 401 (Div. Ct.). [^16]: MacDonald v. Ontario Hydro (1994), 1994 7294 (ON SC), 19 O.R. (3d) 529 (Gen. Div.), aff’d 1995 10628 (ON SC), 26 O.R. (3d) 401 (C.A.); R.D. Belanger & Associates Ltd. v. Stadium Corp. of Ontario Ltd. (1991), 1991 2731 (ON CA), 5 O.R. (3d) 778 at pp. 781-82 (C.A.). [^17]: Whittaker v. Great-West Life Assurance Co., 2008 13376 (ON SC), [2008] O.J. No. 1194 (S.C.J.); Charlton v. Beamish (2004), 2004 35934 (ON SC), 73 O.R. (3d) 119 at paras 18, 48-49 (S.C.J.); Waschkowski v. Hopkinson Estate (2000), 2000 5646 (ON CA), 47 O.R. (3d) 370 (C.A.); Cascone v. Rodney (1981), 1981 1748 (ON SC), 34 O.R. (2d) 618 at para. 2 (H.C.J). [^18]: Miano v. Campos, 2019 ONSC 1816; Golden Oaks Enterprises Inc. (Trustee of) v. Lalonde, 2017 ONCA 515 at para. 45; Boutin v. Co-Operators Life Insurance Co. (1999), 1999 2071 (ON CA), 42 O.R. (3d) 612 at paras. 20-22 (C.A.). [^19]: Clark v. Ontario (Attorney General), 2019 ONCA 311; Brozmanova v. Tarshis, 2018 ONCA 523; Kaynes v. BP, PLC, 2018 ONCA 337; Ridel v. Goldberg, 2017 ONCA 739; Salewski v. Lalonde, 2017 ONCA 515. [^20]: Dawson v. Rexcraft Storage & Warehouse Inc. (1998), 1998 4831 (ON CA), 164 D.L.R. (4th) 257 (Ont. C.A.); Hunt v. Carey Canada Inc. (1990), 1990 90 (SCC), 74 D.L.R. (4th) 321 (S.C.C.). [^21]: Dawson v. Rexcraft Storage & Warehouse Inc. (1998), 1998 4831 (ON CA), 164 D.L.R. (4th) 257 (Ont. C.A.); Temelini v. Ontario Provincial Police (Commissioner) (1990), 1990 7000 (ON CA), 73 O.R. (2d) 664 (C.A.). [^22]: Folland v. Ontario (2003), 2003 52139 (ON CA), 64 OR (3d) 89 (C.A.); Nash v. Ontario (1995), 1995 2934 (ON CA), 27 O.R. (3d) 1 (CA); Canada v. Operation Dismantle Inc., 1985 74 (SCC), [1985] 1 S.C.R. 441; A-G. Canada v. Inuit Tapirisat of Canada, 1980 21 (SCC), [1980] 2 S.C.R. 735. [^23]: 2106701 Ontario Inc. (c.o.b. Novajet) v. 2288450 Ontario Ltd., 2016 ONSC 2673 at para. 42; Aristocrat Restaurants Ltd. v. Ontario, [2004] O.J. No. 5164 (S.C.J.); Dawson v. Rexcraft Storage & Warehouse Inc., 1998 4831 (ON CA), [1998] O.J. No. 3240 at para. 10 (C.A.). [^24]: Balanyk v. University of Toronto, 1999 14918 (ON SC), [1999] O.J. No. 2162 (S.C.J.); Regional Plaza Inc. v. Hamilton-Wentworth (Regional Municipality) (1990), 1990 6761 (ON SC), 12 O.R. (3d) 750 (Gen. Div.); Copland v. Commodore Business Machines Ltd. (1985), 1985 2190 (ON SC), 52 O.R. (2d) 586 (Master), appeal dismissed (1985), 52 O.R. (2d) 586n (H.C.J.). [^25]: Mitchell v. Lewis, 2016 ONCA 903 at para. 21; Conway v. Law Society of Upper Canada, 2016 ONCA 72 at para. 16; Sheridan v. Ontario, 2015 ONCA 2281; 1523428 Ontario Inc. v. TDL Group Corp., 2018 ONSC 5886 (S.C.J.)Adelaide Capital Corp. v. Toronto-Dominion Bank (c.o.b. TD Canada Trust), 2006 39459 (ON SC), [2006] O.J. No. 4705 at para. 6 (S.C.J.), varied 2007 ONCA 456, [2007] O.J. No. 2445 at para. 6 (C.A.); Miguna v. Ontario (Attorney General), 2005 46385 (ON CA), [2005] O.J. No. 5346 (C.A.). [^26]: Pro-Sys Consultants v. Microsoft, 2013 SCC 57; Knoch Estate v. John Picken Ltd. (1991), 1991 7320 (ON CA), 4 O.R. (3d) 385 (C.A.); Normart Management Ltd. v. West Hill Redevelopment Co. (1998), 1998 2447 (ON CA), 37 O.R. (3d) 97 (C.A.); Hunt v. T & N plc, 1990 90 (SCC), [1990] 2 S.C.R. 959; Canada Cement Lafarge Ltd. v. British Columbia Lightweight Aggregate Ltd., 1983 23 (SCC), [1983] 1 S.C.R. 452.. [^27]: Piatkowski v. Drakos, 2020 ONSC 3928; 1588444 Ontario Ltd. (c.o.b. Alfredo’s) v. State Farm Fire and Casualty Co., 2017 ONCA 42; LBP Holdings Ltd. v. Allied Nevada (Gold Corp.), 2016 ONSC 1629 ), leave to appeal refused 2016 ONSC 6037, aff’d 2017 ONCA 13; Steel Tree Structures Ltd. v. Gemco Solar Inc., 2016 ONSC 955 (Div. Ct.).Marks v. Ottawa (City), 2011 ONCA 248 at para. 19; Iroquois Falls Power Corp. v. Jacobs Canada Inc., 2009 ONCA 517 at para. 20 (C.A.), leave to appeal refused [2009] S.C.C.A. No. 367. [^28]: Mazzuca v. Silvercreek Pharmacy Ltd. (2001), 2001 8620 (ON CA), 56 O.R. (3d) 768 (C.A.); King’s Gate Developments Inc. v. Drake (1994), 1994 416 (ON CA), 17 O.R. (3d) 841 (C.A.). [^29]: Harcar v. WJ Properties, [2017] O.J. No. 3346 (Master); Marks v. Ottawa (City), 2011 ONCA 248 at para. 19; Daniele v. Johnson (1999), 1999 19921 (ON SCDC), 45 O.R. (3d) 498 at paras. 11–15 (Div. Ct.); Vaiman v. Yates (1987), 1987 4345 (ON SC), 60 O.R. (2d) 696 at p. 698 (H.C.J.); Simrod v. Cooper, [1952] O.W.N. 720 at 721 (Master), aff’d [1952] O.W.N. 723 (H.C.J.). [^30]: Windsor Raceway Inc. v. Ontario Lottery and Gambling Corp., 2014 ONSC 4076; Wilson v. Legacy Private Trust, 2013 ONSC 1046;Brookfield Financial Real Estate Group Ltd. v. Azorim Canada (Adelaide Street) Inc., 2012 ONSC 3818 at paras. 22–30. [^31]: Fontanilla Estate v. Thermo Cool Mechanical, 2016 ONSC 7023; Frohlick v. Pinkerton Canada Ltd. (2008), 2008 ONCA 3, 88 O.R. (3d) 401 (C.A.); Sycor Technology Inc. v. Kaier (2006), 2006 2763 (ON SC), 79 O.R (3d) 268 (S.C.J.); Mota v. Hamilton-Wentworth (Regional Municipality) Police Services Board (2003), 2003 47526 (ON CA), 63 O.R. (3d) 737 (C.A.). [^32]: Kamloops v. Nielson (1984), 1984 21 (SCC), 10 D.L.R. (4th) 641 (S.C.C.); Central Trust Co. v. Rafuse (1986), 1986 29 (SCC), 31 D.L.R. (4th) 481 (S.C.C.); Peixeiro v. Haberman, 1997 325 (SCC), [1997] 3 S.C.R. 549. [^33]: Lawless v. Anderson, 2011 ONCA 102 at para. 22; Aguonie v. Galion Solid Waste Material Inc. (1998), 1998 954 (ON CA), 38 O.R. (3d) 161 at p. 170 (C.A.). [^34]: Ferrara v. Lorenzetti, Wolfe Barristers and Solicitors, 2012 ONCA 851 at paras. 33 and 70. [^35]: Aguonie v. Galion Solid Waste Material Inc., (1998), 1998 954 (ON CA), 38 O.R. (3d) 161 (C.A.); Ladd v. Brantford General Hospital (2007), 2007 45921 (ON SC), 88 O.R. (3d) 124 (S.C.J.). [^36]: Mark v. Guelph (City) (2011), 2010 ONSC 6034, 104 O.R. (3d) 471 (S.C.J.); Zurba v. Lakeridge Health Corp. (2010), 2010 ONSC 318, 99 O.R. (3d) 596 (S.C.J.); Greenway v. Ontario (Minister of Transportation) (1999), 1999 14797 (ON SC), 44 O.R. (3d) 296 (Gen. Div.). [^37]: Pickering Square Inc. v. Trillium College Inc., 2014 ONSC 2629, aff’d 2016 ONCA 179; Hamilton (City) v. Metcalfe & Mansfield Capital Corp., 2012 ONCA 156. [^38]: Pepper v. Sanmina-Sci Systems (Canada) Inc., 2017 ONSC 1516. [^39]: 2012 ONCA 218. [^40]: Winmill v. Woodstock Police Services, 2017 ONCA 962; Independence Plaza 1 Associates, L.L.C. v. Figliolini, 2017 ONCA 44; 407 ETR Concession Co. v. Day, 2016 ONCA 709, rev’g 2014 ONSC 6409; Kadiri v. Southlake Regional Health Centre, 2015 ONSC 621 aff’d, 2015 ONCA 847. [^41]: 1309489 Ontario Inc. v. BMO Bank of Montreal, 2011 ONSC 5505 at paras. 18–28; Ivany v. Financiere Telco Inc., 2011 ONSC 2785 at paras. 26–33; Dumoulin v. Ontario (2004), 2004 848 (ON SC), 71 O.R. (3d) 556 (S.C.J.); Mele v. Thorne, Ernst & Whinney (1997), 1997 12107 (ON SC), 32 O.R. (3d) 459 (Gen. Div.); Fire v. Longtin (1990), 1990 6946 (ON SC), 71 O.R. (2d) 682 (H.C.J.); Denton v. Jones (No. 2) (1976), 1976 831 (ON SC), 14 O.R. (2d) 382 (H.C.J.); Letang v. Cooper, [1965] 1 Q.B. 232 (C.A.); Poucher v. Wilkins (1915), 1915 514 (ON CA), 33 O.L.R. 125 (C.A.); Read v. Brown (1888), 22 Q.B.D. 128 (C.A.). [^42]: Catalyst Capital Group Inc. v. Dundee Kilmer Developments Limited Partnership, 2020 ONCA 272 at para. 75; Klassen v. Beausoleil, 2019 ONCA 407 at paras. 27-30; Greenstone (Municipality) v. Marshall Macklin Monaghan Ltd., 2013 ONSC 7058 (Div. Ct.); Dee Ferraro Ltd. v. Pellizzari, 2012 ONCA 55. [^43]: Caetano v. Quality Meat Packers Holdings Ltd., (sub nom. United Food and Commercial Workers Canada, Local 175, Region 6 v. Quality Meat Packers Holdings Ltd.) 2018 ONCA 671; 1100997 Ontario Ltd. v. North Elgin Centre Inc., 2016 ONCA 848; Fuda v. Jim McIntosh Petroleum Engineering Ltd., 2013 ONSC 2122 at para. 305, aff’d 2014 ONCA 378; Dee Ferraro Ltd. v. Pellizzari, 2012 ONCA 55 at paras. 4–5. [^44]: Piatkowski v. Drakos 2020 ONSC 3928; Bank of Montreal v. Morris, 2013 ONSC 2884; Timbers Estate v. Bank of Nova Scotia, 2011 ONSC 3639; Dugal v. Manulife Financial Corp., 2011 ONSC 1764; Ascent Inc. v. Fox 40 International Inc., [2009] O.J. No. 2964 (Master); Canadian Industries Ltd. v. Canadian National Railway Co., 1940 346 (ON CA), [1940] O.J. No. 266 (C.A.), aff’d 1941 16 (SCC), [1941] S.C.R. 591. [^45]: Lawrence v. International Brotherhood of Electrical Workers, 2017 ONCA 321, aff’d 2018 SCC 11.