This
motion
brought
by
the
applicant
is
the
latest
in
a
series
of
legal
proceedings
between
these
parties
in
this
Court
and
between
the
personal
respondent
and
certain
individuals,
all
but
one
of
whom
are
or
were
servants
of
the
applicant,
in
the
courts
of
Ontario.
Mary
David
founded
Olympia
Interiors
Ltd.
in
1964
and
at
all
relevant
times
has
been
its
sole
shareholder,
sole
director
and
president.
Olympia
was
a
designer,
manufacturer
and
installer
of
customized
architectural
window
coverings
for
use
in
commercial
buildings.
In
accordance
with
the
Excise
Tax
Act,
R.S.C.
1970,
c.
E-13,
Olympia
was
liable
to
pay
federal
sales
tax
on
the
selling
price
of
the
window
coverings.
The
relevant
portion
of
subsection
26(6)
of
the
Excise
Tax
Act
(as
amended
by
S.C.
1980-81-82-83,
c.
68,
subsection
8(5),
which
added
clause
26(6)(c)(ii)(A)
(subsequently
clause
46(c)(ii)(A)
of
the
Excise
Tax
Act,
R.S.C.,
1985,
c.
E-15),
reads:
26(6)
For
the
purpose
of
determining
the
consumption
or
sales
tax
payable
under
this
Part,
(c)
in
calculating
the
sale
price
of
goods
manufactured
or
produced
in
Canada,
there
may
be
excluded
(ii)
under
such
circumstances
as
the
Governor
in
Council
may,
by
regulation,
prescribe
an
amount
representing
(A)
the
cost
of
erection
or
installation
of
goods
incurred
by
the
manufacturer
or
producer
where
the
goods
are
sold
at
a
price
that
includes
erection
or
installation,
or.
.
.
.
Regulations
entitled
"Erection
and
Installation
Costs
Regulations”,
SOR/83-136,
set
out
the
procedure
for
determining
a
percentage
of
the
sale
price
which
the
manufacturer
could
use
for
purposes
of
the
exclusion
contemplated
by
clause
26(6)(c)(ii)(A).
This
percentage-based
exclusion
will
be
referred
to
throughout
these
reasons
as
the“
installation
deduction
rate”.
The
schedule
which
formed
part
of
the
"Erection
or
Installation
Costs
Regulations”
provided
that,
in
relation
to
the
goods
here
in
question,
a
flat
rate
of
ten
per
cent
of
the
sale
price
would
apply
in
the
absence
of
supporting
documentation
for
a
higher
installation
deduction
rate.
By
letter
dated
September
30,
1983,
Mary
David,
on
behalf
of
Olympia,
wrote
to
Mr.
A.
Zoberman
of
the
Department
of
National
Revenue,
Customs
and
Excise,
("the
Department")
to
express
her
desire
to
have
an
installation
deduction
rate
in
excess
of
ten
per
cent
set
for
the
goods
Olympia
produced.
By
letters
dated
November
17,
1984
and
December
18,
1984,
officials
of
the
Department
wrote
to
Olympia,
as
represented
by
Mary
David,
to
provide
rulings
relating
to
calculation
of
the
federal
sales
tax
applicable
to
Olympia.
On
February
13,
1985,
following
a
review
of
Olympia's
records,
Mr.
Norman
Leyton,
a
senior
excise
auditor
with
the
Department,
wrote
to
Mr.
R.C.
Dickson,
Supervisor,
Technical
Services
Excise,
for
the
Toronto
region
of
the
Department,
recommending
that
Olympia
be
allowed
to
use
a
50
per
cent
installation
deduction
rate
in
respect
of
its
products.
By
letter
dated
April
22,
1985,
Mr.
Dickson
wrote
Olympia,
to
the
attention
of
Mary
David,
to
inform
her
of
the
Department's
decision
in
this
matter.
The
text
of
the
letter
reads:
Mr.
N.
Leyton
of
our
technical
services
unit
reviewed
your
records
to
determine
an
installation
percentage
for
use
in
calculating
your
Sales
tax
liability
on
commercial
drapery
and
assorted
window
coverings
of
your
manufacture
sold
on
a
supply
and
install
basis.
As
a
result
of
this
review,
it
was
determined
that
your
company
should
use
the
ten
per
cent
installation
deduction
authorized
in
circular
ET62.
Olympia
failed
to
submit
its
monthly
federal
sales
tax
returns
for
the
first
two
months
of
1985
and
was
subsequently
convicted
on
September
9,
1985,
in
the
Provincial
Court
of
Ontario
for
failure
to
so
file.
Throughout
the
remainder
of
1985
and
into
1986
the
applicant
and
Olympia
were
at
odds
over
what
installation
deduction
rate
Olympia
should
use,
what
taxes
it
owed
and
whether
or
not
Olympia
would
co-operate
in
an
audit
by
the
Department.
By
letter
dated
March
12,
1986,
from
A.C.
Martin,
Technical
Services
Unit
Manager,
Toronto
Region,
Olympia
was
informed
that
a
provisional
50
per
cent
installation
deduction
rate
was
set
for
its
roller
shades
and
vertical
blinds.
The
letter
also
stated
that
a
federal
sales
tax
audit
was
to
be
conducted
and
that
the
provisional
rate
was
subject
to
change.
By
letter
dated
March
17,
1986,
Mr.
Martin
again
wrote
to
Olympia
and
stated
that
an
installation
deduction
rate
of
33
/s
per
cent
was
authorized
for
manufacturers
of
horizontal
blinds
who"
established
and
maintained
a
regular
sales
tax-included
installed
selling
price
to
users".
In
November
1985
Olympia
was
served
with
a
ministerial
letter
of
requirement,
for
production
of
books,
records
and
"other
information”
required
by
the
Department.
An
audit
was
performed
on
Olympia
in
March
1986.
As
a
result
of
the
audit
it
was
determined
that
for
the
period
between
August
1,
1982,
and
December
31,
1985,
Olympia
owed
taxes
in
the
amount
of
$63,085.77
plus
interest
and
penalties
of
$39,372.79
for
a
total
of
$102,458.56.
By
letter
dated
September
16,1986,
from
Olympia,
signed
by
Mary
David,
to
Mr.
R.
Ribchester,
Olympia
disputed
that
assessment
of
tax,
interest
and
penalties,
owing
and
instead
offered
to
pay
an
amount
of
$57,640.32.
At
sometime
in
1986,
the
Department
received
an
anonymous
telephone
call
advising
that
some
of
the
records
of
Olympia
had
been
altered.
In
an
“information
to
obtain
a
search
warrant”
sworn
on
August
21,
1986,
it
is
stated
that
as
a
result
of
the
informant's
information,
there
were
reasonable
grounds
for
believing
that
among
other
things,
Olympia
had
altered
records
in
an
effort
to
evade
paying
tax.
The
respondents
do
not
deny
that
some
of
the
records
were
altered,
but
they
insist
that
the
alterations
were
made
to
help
"regular"
auditors
of
the
Department
determine
the
exact
nature
of
transactions
and
that
in
no
case
was
any
amount
altered
on
any
invoice.
In
late
August
1986,
a
search
warrant
was
executed
against
Olympia's
premises.
The
“information”
sets
out
that
virtually
all
the
business
records
of
Olympia
for
the
period
March
1,
1982,
to
December
31,
1985
were
relevant
to
the
investigation
being
conducted.
In
the
result,
a
substantial
quantity
of
records
was
seized.
Norman
Leyton,
in
a
letter
dated
September
2,
1987,
notified
Olympia
of
an
amended
assessment
of
tax,
dated
September
4,1987,
which
indicated
that
Olympia
was
now
in
arrears
to
the
applicant
for
the
amount
of
$316,373.80.
By
letter
dated
September
4,
1987,
from
A.C.
Martin
to
Olympia,
to
the
attention
of
Mary
David,
the
Department
revoked
the
provisional
installation
deduction
rate
of
50
per
cent
for
certain
of
Olympia’s
installation
and
transportation
expenses.
Olympia
was
thus
left
with
the
base
statutorily
authorized
ten
per
cent
installation
deduction
rate,
unless
it
provided
documentation
which
could
support
a
higher
deduction
rate.
The
amended
tax
assessment
was
not
paid.
On
December
4,
1992,
an
amended
certificate
of
default
certifying
the
September
4,1987
assessment
of
Olympia's
tax
liability
under
the
Excise
Tax
Act
(R.S.C.
1970,
c.
E-13),
was
filed
with
this
Court
and
became
a
judgment
of
the
Court.
On
August
14,
1987,
the
Honourable
Elmer
Mackay,
Minister
of
National
Revenue,
certified
that
in
his
opinion
there
was
sufficient
evidence
to
justify
prosecution
of
the
respondents
under
subsection
56(2)
and
paragraph
57(9)(a)
and
section
62
of
the
Excise
Tax
Act.
On
August
25,
1987,
an
information
was
sworn
charging
Mary
David
as
director
of
Olympia
and
Olympia
with
73
counts
under
the
above
mentioned
provisions
of
the
Excise
Tax
Act.
The
trial
on
the
criminal
charges
commenced
in
October
1989.
The
trial
proceeded
through
11
non-consecutive
days
of
prosecution
evidence
and
ended
on
June
4,
1990,
when
the
Crown
stayed
some
of
the
charges
against
Mary
David
and
Olympia
and
withdrew
the
rest.
The
defence
was
not
called
upon.
The
seized
records
of
Olympia
were
not
returned
to
it
after
the
staying
and
withdrawal
of
the
charges
as
it
was
the
position
of
the
Crown
that
the
stayed
charges
could
be
revived
up
to
one
year
from
the
date
of
staying.
The
Crown,
on
September
27,
1990,
after
commencement
of
a
motion
for
return
of
the
material,
agreed
to
its
return
to
the
respondents.
The
material
was
returned
within
approximately
two
weeks
of
that
date.
On
April
17,
1990,
Mary
David
filed
an
assignment
in
bankruptcy
naming
Murray
H.
Kideckel
as
her
trustee.
She
was
discharged
from
bankruptcy
on
December
12,
1990.
Also
in
April
1990,
Olympia's
assets
were
seized
by
creditors
and
it
ceased
to
operate
as
a
business.
On
December
24,
1990,
the
respondents
gave
notice
that
an
action
in
this
Court
would
be
commenced
against
several
named
individuals
all
of
whom,
with
one
exception,
were
employees
of
the
applicant,
as
well
as
against
the
applicant.
A
statement
of
claim
was
issued
on
January
2,
1991.
On
June
12,
1992,
the
Federal
Court
of
Appeal
confirmed
that
the
Court
lacked
jurisdiction
in
the
claims
against
the
named
individuals
and
struck
out
the
respondent's
claim
with
leave
to
recommence
proceedings
against
the
applicant.
The
present
action
was
commenced
by
a
statement
of
claim
which
was
filed
with
the
Court
on
June
16,
1992.
An
amended
statement
of
claim
was
subsequently
filed
on
September
16,
1992.
The
statement
of
claim
is
for
damages
for
breach
of
duty
under
the
Excise
Tax
Act
(R.S.C.
1985,
c.
E-15)
and,
on
behalf
of
the
corporate
respondent,
for
deprivation
of
an
entitlement
under
that
Act.
In
the
Ontario
Court
of
Justice,
General
Division,
statements
of
claim
were
filed
by
Mary
David
against
Michael
Schwantes
and
Reverend
Eberhard
Sch-
wantes
on
June
23,
1992,
Margaret
Woolcott
on
July
24,
1992,
and
Alexander
C.
Martin
and
Leon
Kluger
on
August
17,1992.
In
a
decision
dated
April
21,
1993,
Madame
Justice
Caswell
of
the
Ontario
Court,
General
Division,
refused
to
grant
summary
judgments
dismissing
the
plaintiff's
claims,
or
a
stay
of
proceedings
in
those
actions.
(David
v.
Schwantes
et
al.,
file
nos.
17497/92,
18240/92,
18631/92
and
18632/92
(unreported).)
In
a
separate
procedural
matter
before
the
Ontario
Court
of
Justice,
General
Division,
Mr.
Justice
Paisley,
in
unreported
decisions
dated
October
22,
1992
(David
v.
Kluger
(file
no.
18639/92);
and
David
v.
Woolcott
(file
no.
18240/92)),
found
that
actions
against
two
of
the
personal
defendants
were
not
statute
barred
by
section
7
of
the
Ontario
Public
Authorities
Protection
Act,
R.S.O.
1990,
c.
P-38
("P.A.P.A."),
or
by
subsection
112(1)
of
the
Excise
Tax
Act
(R.S.C.
1985,
c.
E-15).
These
decisions
were
overturned
by
the
Ontario
Court
of
Justice
Divisional
Court
in
a
decision
dated
May
17,1993
(David
v.
Woolcott
et
al.,
file
nos.
763/92
and
764/92
(Callaghan,
C.J.,
Steele,
Carruthers,
JJ.).
Analysis
Submissions
before
me
were
directed
essentially
to
four
subject
areas:
The
request
for
summary
judgment
on
the
ground
that
the
pleadings
disclose
no
serious
issue
to
go
to
trial;
the
request
for
summary
judgment
on
the
basis
that
any
cause
of
action
disclosed
is
statute
barred;
the
request
in
the
alternative
to
strike
certain
paragraphs
from
the
statement
of
claim;
and
the
request
for
a
stay
pending
disposition
of
related
proceedings
in
the
courts
of
Ontario.
I
will
deal
with
each
of
these
subject
areas
in
turn.
1.
Summary
judgment
—
failure
to
disclose
a
serious
issue
to
go
to
trial.
As
indicated
above,
an
application
for
summary
judgment
on
the
basis
of
failure
to
disclose
a
serious
issue
to
go
to
trial
in
related
proceedings
in
the
Ontario
Court
of
Justice
against
certain
named
individuals
was
dealt
with
by
Madam
Justice
Caswell
in
reasons
dated
April
21,1993.
She
refused
to
grant
summary
judgment.
The
facts
before
Madam
Justice
Caswell
were
essentially
those
set
out
above
except
in
respect
of
one
defendant,
Reverend
Eberhard
Schwantes.
The
facts
as
they
relate
to
him
are
not
relevant
to
his
motion.
Madam
Justice
Caswell
refers
to
Pizza
Pizza
Ltd.
v.
Gillespie
(1991),
75
O.R.
(2d)
225,
wherein,
Mr.
Justice
Henry,
at
pages
238
and
239,
set
out
the
principles
to
be
considered
by
a
judge
on
a
motion
for
summary
judgment
under
rule
20
of
the
Ontario
Rules
of
Civil
Procedure.
While
that
Rule
is
not,
of
course,
applicable
here,
I
find
the
statement
of
principles
instructive:
In
my
view,
the
general
thrust
of
the
seminal
decisions
of
the
Court
on
Rule
20,
where
the
moving
party
is
the
defendant,
may
be
summarized
thus
for
present
purposes:
Rule
20
contemplates
a
radically
new
attitude
to
motions
for
judgement;
the
objective
is
to
screen
out
claims
that
in
the
opinion
of
the
Court,
based
on
evidence
furnished
as
directed
by
the
rule,
ought
not
to
proceed
to
trial
because
they
cannot
survive
the
"good
hard
look”.
There
is
no
arbitrary
or
fixed
criterion
that
the
motions
judge
must
apply.
It
is
a
case
by
case
decision
to
be
made
on
the
law
and
on
the
facts
that
he
is
able
to
find
on
the
evidence
submitted
to
him
in
support
of
the
claim
or
defence,
whether
the
plaintiff
has
laid
a
proper
foundation
in
its
affidavit
and
other
evidence
to
sustain
the
claims
made.
It
is
not
sufficient
for
the
responding
party
to
say
that
more
and
better
evidence
will
(or
may)
be
available
at
trial.
The
occasion
is
now.
The
respondent
must
set
out
specific
facts
and
coherent
evidence
organized
to
show
that
there
is
a
genuine
issue
for
trial.
Apparent
factual
conflict
in
evidence
does
not
end
the
inquiry.
The
Court
may,
on
a
common
sense
basis,
draw
inferences
from
the
evidence.
The
Court
may
look
at
the
overall
credibility
of
the
plaintiff's
action,
i.e.,
does
the
plaintiff's
case
have
the
ring
of
truth
about
it
such
that
it
would
justify
consideration
by
the
trier
of
fact?
Matters
of
credibility
requiring
resolution
in
a
case
of
conflicting
evidence
ought
to
go
to
trial;
however,
that
depends
upon
the
circumstances
of
the
case;
the
court
in
taking
the
“hard
look”
at
the
merits
must
decide
if
any
conflict
is
more
apparent
than
real,
i.e.,
whether
there
is
really
an
issue
of
credibility
that
must
be
resolved
in
order
to
adjudicate
on
the
merits.
Motions
under
Rule
20
must
be
made
sparingly
and
judiciously;
the
court
will
control
abuse
of
this
process
if
necessary
by
its
order
for
costs.
Counsel
for
the
respondents
argued
before
me
that
the
onus
on
the
applicant
seeking
the
same
relief
in
the
Federal
Court
is
higher
than
that
which
can
be
derived
from
the
foregoing
statement.
The
relevant
provision
is
Rule
341,
and
specifically,
Rule
341(b),
of
the
Federal
Court
Rules,
C.R.C.
1978,
c.
663.
Rule
341
reads
as
follows:
341.
A
party
may,
at
any
stage
of
a
proceeding,
apply
for
judgment
in
respect
of
any
matter
(a)
upon
any
admission
in
the
pleading
or
other
documents
filed
in
the
Court,
orin
the
examination
of
another
party,
or
(b)
in
respect
of
which
the
only
evidence
consists
of
documents
and
such
affidavits
as
are
necessary
to
prove
the
execution
or
identity
of
such
documents,
without
waiting
for
the
determination
of
any
other
question
between
the
parties.
In
support
of
this
contention
he
cites
R.
v.
Gary
Bowl
Ltd.,
[1974]
C.T.C.
457,
74
D.T.C.
6401
(F.C.A.),
Cyrus
J.
Moulton
Ltd.
v.
The
Queen,
[1975]
C.T.C.
631,
75
D.T.C.
5440
(F.C.A.),
and
Flexi-Coil
Ltd.
v.
Bourgault
(F.P.)
Industries
(1990),
36
F.T.R.
149,
31
C.P.R.
(3d)
529,
among
other
cases.
I
agree
that
these
cases
support
his
contention.
Although,
generally
speaking,
the
facts
in
this
case
are
not
in
dispute,
there
are
two
widely
varying
interpretations
of
those
facts.
Those
varying
interpretations
extend
on
the
part
of
the
respondents
to
allegations
that
the
facts
disclose
malice
or
a
primary
purpose
on
the
part
of
Crown
servants
that
is
other
than
that
of
carrying
the
law
into
effect.
Such
an
interpretation,
if
substantiated,
would
meet
one
of
the
four
elements
which
must
be
proved
for
success
in
an
action
for
malicious
prosecution
as
set
out
in
Nelles
v.
Ontario
(1989),
60
D.L.R.
(4th)
609,
98
N.R.
321,
71
C.R.
(3d)
358
(S.C.C.)
at
page
639
(N.R.
344,
C.R.
391).
Two
of
the
other
three
elements
namely,
that
the
proceedings
must
have
been
initiated
by
the
defendant
and
must
have
terminated
in
favour
of
the
plaintiff
are
essentially
not
in
dispute.
The
remaining
element,
absence
of
reasonable
and
probable
cause,
is,
once
again,
a
matter
of
widely
varying
interpretation.
It
was
common
ground
between
counsel
before
me
that
malicious
prosecution
is
at
the
base
of
this
action
even
though
that
is
not
readily
apparent
from
the
respondent's
pleadings.
Given
the
foregoing,
I
cannot
conclude
that
the
pleadings
and
other
documents
before
me
fail
to
disclose
a
serious
issue
to
go
to
trial,
that
issue
being,
whether
the
respondents'
interpretation
of
the
facts
can
be
established
in
a
degree
sufficient
to
support
a
finding
of
malicious
prosecution.Accordingly,
the
application
fails
on
this
ground.
2.
Summary
judgment
—
any
cause
of
action
is
statute
barred.
Counsel
for
the
applicant
submits
that
the
respondent's
claim
is
statute
barred
by
section
7
of
the
P.A.P.A.
and/or
by
subsection
112
(1)
of
the
Excise
Tax
Act.
Section
7
of
the
P.A.P.A.
reads
as
follows:
7.(1)
No
action,
prosecution
or
other
proceeding
lies
or
shall
be
instituted
against
any
person
for
an
act
done
in
pursuance
or
execution
or
intended
execution
of
any
statutory
or
other
public
duty
or
authority,
or
in
respect
of
any
alleged
neglect
or
default
in
the
execution
of
any
such
duty
or
authority,
unless
it
is
commenced
within
six
months
next
after
the
cause
of
action
arose,
or
in
case
of
continuance
of
injury
or
damage,
within
six
months
after
the
ceasing
thereof.
(2)
Subsection
(1)
does
not
apply
to
an
action,
prosecution
or
proceeding
against,
(a)
a
sheriff
for
an
act,
neglect
or
default
in
certifying
as
to
a
writ
of
execution
that
binds
land;
or
(b)
a
land
registrar
for
an
act,
neglect
or
default
in
connection
with
his
or
her
duties
under
the
Registry
Act
and
the
Land
Titles
Act.
The
relevant
provisions
of
the
Excise
Tax
Act,
at
all
times
relevant
to
these
proceedings,
read
as
follows:
111.(1)
No
writ
shall
be
issued
against,
nor
any
process
served
on,
any
officer
for
any
thing
done
or
purporting
to
be
done
in
the
exercise
of
his
duty
as
an
officer
until
one
month
after
notice
in
writing
has
been
served
on
him,
in
which
notice
shall
be
clearly
and
explicitly
stated
the
cause
of
action,
the
name
and
place
of
residence
of
the
person
who
intends
to
bring
action
and
the
name
of
his
attorney,
solicitor
or
agent.
(2)
No
evidence
of
any
cause
of
action
shall
be
produced
except
of
such
cause
of
action
as
is
contained
in
the
notice,
and
no
verdict
or
judgment
shall
be
given
for
the
plaintiff,
unless
he
proves
on
the
trial
that
the
notice
was
given,
in
default
of
which
proof
the
defendant
is
entitled
to
a
verdict
or
judgment
and
costs.
112.
(1)
Every
action
referred
to
in
subsection
111(1)
shall
be
brought
within
three
months
after
the
cause
thereof
arose
and
shall
be
laid
and
tried
in
the
place
or
district
where
the
acts
complained
of
were
committed.
(2)
The
defendant
in
an
action
may
plead
the
general
issue
and
give
the
special
matter
in
evidence.
(3)
If
the
plaintiff
in
an
action
is
non-suited
or
discontinues
the
action,
or
if,
on
demurrer
or
otherwise,
judgment
is
given
against
the
plaintiff,
the
defendant
may
recover
costs
and
have
such
remedy
for
the
costs
as
any
defendant
has
in
other
cases
where
costs
are
given.
The
P.A.P.A.
is
made
relevant
to
the
case
at
bar
by
section
32
of
the
Crown
Liability
and
Proceedings
Act,
S.C.
1990,
c.
8,
section
31,
which
reads
as
follows:
32.
Except
as
otherwise
provided
in
this
Act
or
in
any
other
Act
of
Parliament,
the
laws
relating
to
the
prescription
and
limitation
of
actions
in
force
in
a
province
between
subject
and
subject
apply
to
any
proceedings
by
or
against
the
Crown
in
respect
of
any
cause
of
action
arising
in
that
province,
and
proceedings
by
or
against
the
Crown
in
respect
of
a
cause
of
action
arising
otherwise
than
in
a
province
shall
be
taken
within
six
years
after
the
cause
of
action
arose.
Section
32
as
quoted
above,
reflects
the
text
of
that
section
as
reenacted
by
S.C.
1990,
c.
8
which
came
into
force
on
February
1,
1992.
The
same
amending
statute
changed
the
title
of
the
statute
in
question
from
the
Crown
Liability
Act
to
its
current
title.
Counsel
agreed
before
me
that
the
changes
made
on
repeal
and
reenactment
have
no
impact
in
the
case
at
bar.
I
agree
with
their
position.
Thus,
the
question
of
whether
the
old
law
or
the
new
law
here
applies
is
of
no
consequence.
Generally
speaking,
section
32
of
the
Crown
Liability
and
Proceedings
Act,
as
did
its
predecessor
section
of
the
Crown
Liability
Act,
applies
to
the
situation
before
me
to
make
limitation
periods
that
apply
in
a
province,
in
this
case
Ontario,
as
between
subject
and
subject,
applicable
in
cases
against
the
Federal
Crown,
unless
otherwise
provided
in
an
Act
of
Parliament.
Counsel
before
me
agreed,
and
once
again
I
agree,
that
there
is
no
overriding
provision
of
an
Act
of
Parliament
that
is
here
applicable.
As
indicated
above,
in
related
proceedings
before
the
Ontario
courts
against
two
personal
defendants,
the
Ontario
Court
of
Justice
Divisional
Court,
in
a
judgment
released
May
17,
1993,
found
the
claims
of
the
personal
respondent
herein
to
be
statute
barred
under
both
section
7
of
the
P.A.P.A.
and,
in
the
one
case
where
it
was
applicable,
under
subsection
112(1)
of
the
Excise
Tax
Act.
Mr.
Justice
Steele,
speaking
for
the
Court,
made
it
very
clear
that
antecedent
proceedings
in
the
Federal
Court
of
Canada
against
the
two
personal
defendants
were
”.
.
.
of
no
consequence
to
the
proceedings
in
this
(the
Ontario
Court
of
Justice)
Court".
Counsel
for
the
personal
respondent
herein
had
apparently
conceded
that
if
no
link
could
be
drawn
to
the
antecedent
proceedings
in
the
Federal
Court,
his
client’s
action
in
the
Ontario
Court
of
Justice
was
commenced
after
the
expiration
of
both
limitation
periods.
It
is
not
conceded
that
antecedent
proceedings
in
this
Court
are
of"
no
consequence"
in
these
proceedings.
Thus,
the
Divisional
Court
judgment
is
not
"on
all
fours"
with
the
case
at
bar.
First
then,
it
must
be
determined
when
the
limitation
periods
commenced
to
run.
Counsel
for
the
applicant
submits
that
the
limitation
periods
began
to
run,
or
were
triggered,
upon
the
staying
of
the
criminal
charges
against
the
respondents
on
June
4,
1990.
Counsel
for
the
respondents
argues
that
since
certain
of
the
charges
were
only
stayed,
and
since
fresh
charges
were
laid
against
the
respondents
up
to
December
1989,
the
limitation
period
should
only
commence
running
one
year
from
the
laying
of
the
final
charge,
i.e.,
December
1990.
Assuming
this
to
be
correct,
the
respondents
then
submit
that
notice
of
action
was
given
to
the
applicant,
(as
well
as
to
a
number
of
individuals
named
in
the
January
1991
statement
of
claim)
on
December
24,
1990.
That
claim
was
dismissed
by
the
Federal
Court
of
Appeal
on
June
12,1992
for
lack
of
jurisdiction
in
respect
of
certain
named
individuals,
with
leave
to
commence
the
current
action
against
the
applicant.
A
fresh
statement
of
claim
instituting
the
case
at
bar
was
filed
on
June
16,1992
.
Counsel
for
the
respondents
argues
that
the
original
notice
given
on
December
24,
1990
survived
and
was
still
sufficient
to
ensure
compliance
with
the
time
limit
prescribed
by
the
P.A.P.A.
upon
the
filing
of
the
fresh
statement
of
claim.
In
response,
counsel
for
the
applicant
states
that
the
charges
laid
after
1987
were
withdrawn
and
only
charges
stemming
from
the
1987
information
were
carried
through
to
prosecution
and
eventually
stayed.
Therefore,
she
argues,
the
relevant
commencement
date
for
the
limitation
period
remains
June
4,
1990,
the
date
of
the
staying
of
the
criminal
charges.
She
adds
that
since
nothing
in
the
December
24,
1990
notice
and
the
original
January
1991
statement
of
claim
seeks
to
extend
the
commencement
of
the
limitation
period,
the
respondents
present
claim
filed
in
June
1992
is
statute
barred.
This
is
the
“earlier
proceedings
are
of
no
consequence”
line
of
reasoning
that
found
favour
with
the
Ontario
Divisional
Court
although
in
that
case,
of
course,
the
earlier
proceedings
were
not
in
that
Court.
In
respect
of
the
appropriate
date
to
which
to
anchor
the
limitation
period,
I
am
in
agreement
with
the
applicant.
The
only
charges
that
were
prosecuted
were
based
in
the
1987
information,
and
these
were
stayed
as
of
June
4,1990.
It
is
from
this
date
that
the
various
limitation
periods
commence
to
run.
On
this
basis,
even
the
December
24,1990
notice
and
the
January,
1991
statement
of
claim
were
out
of
time
under
the
relevant
provisions
of
both
the
P.A.P.A.
and
the
Excise
Tax
Act.
Notwithstanding
this,
the
respondents,
based
on
the
decision
of
the
Ontario
Court
of
Appeal
in
Sjouwerman
v.
Canada
Post
and
Valance
(1990),
37
O.
A.C.
294,
46
C.P.C.
(2d)
113,
maintain
that
the
applicant
cannot
avail
itself
of
the
protection
of
the
P.A.P.A.
The
applicant
responds
by
stating
that
Sjouwerman
goes
counter
to
the
jurisprudential
stream
in
this
area
of
law
and
that
I
should
be
guided
instead
by
the
principles
enunciated
by
the
Supreme
Court
of
Canada
in
Berardinelli
v.
O.H.C.,
[1979]
1
S.C.R.
275,
90
D.L.R.
(3d)
481.
The
facts
in
Berardinelli
are
straight
forward.
Mr.
Berardinelli
was
a
tenant
occupying
a
unit
owned
by
the
Ontario
Housing
Corporation,
pursuant
to
the
Housing
Development
Act,
R.S.O.,
1970,
c.
213.
In
a
common
area
of
the
Toronto
development
in
which
he
lived,
Mr.
Berardinelli
fell
on
a
patch
of
ice.
A
writ
of
summons
was
issued
more
than
six
months
after
the
fall
occurred,
and
the
Housing
Corporation
claimed
the
protection
of
section
11
(equivalent
to
the
present
section
7)
of
the
P.A.P.A.
The
issue
in
that
case
involved
the
interplay
of
section
11
of
the
P.A.P.A.
and
subsection
6(2)
of
the
Housing
Development
Act
which
granted
to
the
Housing
Corporation
"such
powers
and
duties
as
are
deemed
expedient
to.
.
.plan,
construct,
and
manage
any
building
development
or
housing
project”.
The
choice
confronting
the
Court,
as
described
by
Mr.
Justice
Estey
for
the
majority
at
page
280
(D.L.R.
492)
of
the
decision,
was
whether
section
11
of
the
P.
A.P.A.
was
to
be
read
so
broadly
that
the
most
minuscule
action
taken
by
the
Housing
Authority
would
attract
the
six
month
limitation
period,
or
whether
invocation
of
section
11
of
the
P.A.P.A.
should
be
limited
to
actions
of
the
Housing
Authority
under
the
Housing
Development
Act
which
had
a
public
impact
and
connotation.
In
commenting
upon
the
scope
of
section
11
of
the
P.A.P.A.,
again
at
page
280
(D.L.R.
492),
Mr.
Justice
Estey
had
this
to
say:
Section
11,
being
a
restrictive
provision
wherein
the
rights
of
action
of
a
citizen
are
necessarily
circumscribed
by
its
terms,
attracts
a
strict
interpretation
and
any
ambiguity
found
upon
the
application
of
the
proper
principles
of
statutory
interpretation
should
be
resolved
in
favour
of
the
person
whose
right
of
action
is
being
truncated.
In
support
of
her
position
as
to
the
applicability
of
Berardinelli,
counsel
for
the
applicant
referred
to
the
following
passage
at
page
282
(D.L.R.
493):
Section
11
therefore
would
appear
to
extend
to
persons
corporate
and
unincorporate
and
in
the
case
of
the
former
whether
established
as
a
Crown
agency
or
otherwise.
However,
this
Court
is
not
required
to
determine
the
matter
with
finality,
since
the
respondent
is
clearly
a
Crown
agency,
.
.
.
It
was
argued
that
this
passage
stood
for
the
proposition
that
there
was
no
bar
to
the
applicability
of
provincial
limitation
legislation
to
the
applicant
simply
because
it
is
the
Crown.
I
agree.
However,
with
respect,
I
fail
to
see
how
this
advances
the
applicant's
cause.
The
stumbling
block
in
the
case
at
bar,
as
will
be
seen
in
the
discussion
of
Sjouwerman,
below,
is
the
phrase
"between
subject
and
subject"
as
found
in
section
32
of
the
Crown
Liability
and
Proceedings
Act.
It
appears
clear
to
me
that
only
once
the
hurdle
of
the
Crown
Liability
and
Proceedings
Act
is
overcome,
can
the
applicant
take
advantage
of
the
limitation
period
in
section
7
of
the
P.A.P.A.
Later
in
the
decision,
Mr.
Justice
Estey
came
to
the
conclusion
that
duties
which
had
a
"public
interest"
were
properly
protected
by
the
six
month
limitation
period
found
in
section
11
of
the
P.A.P.A.,
whereas,
subordinate
or
incidental
acts
of
a
private
nature
did
not
enjoy
the
protection
of
the
shorter
limitation
period.
At
page
286
(D.L.R.
497)
he
wrote:
.
.
.
Nevertheless,
it
[snow
removal]
is
not
one
of
the
primary
duties
exercised
in
the
public
interest
which
quickly
comes
to
mind
when
one
contemplates
the
range
of
activities
involved
in
the
planning,
construction
and
management
of
a
housing
complex
located
in
Metropolitan
Toronto
or
its
environs.
It
is
not,
in
my
view,
a
phase
of
activity
which
has”
a
direct
public
purpose"
or
which
has
a”
public
aspect"
in
the
words
of
the
majority
of
this
Court
in
the
McGonegal
decision
(McGonegal
v.
Gray,
[1952]
2
S.C.R.
274,
[1952]
2
D.L.R.
161).
It
is
predominately
in
character
a
"subordinate"
or
“incidental”
act
or
“of
a
private
interest",
to
refer
again
to
the
words
of
Rand,
J.
in
that
case.
As
I
interpret
the
Berardinelli
case,
it
stands
for
the
proposition
that
only
actions
of
a
public
interest
nature
or
having
a
public
aspect
that
are
taken
by
the
Crown
attract
the
shorter
limitation
period.
I
fail
to
see
how
this
proposition
advances
the
position
of
the
applicant
beyond
a
point
it
has
already
achieved.
There
was
no
dispute
between
the
parties
as
to
whether
or
not
the
actions
of
the
applicant
herein
were
of
a
public
or
private
nature.
In
my
opinion,
in
the
case
at
bar,
there
can
be
no
dispute
as
to
the
public
nature
of
the
actions
taken
by
the
applicant.
As
indicated
earlier,
the
respondents
rely
upon
the
Ontario
Court
of
Appeal's
decision
in
Sjouwerman.
In
that
case,
while
driving
a
Canada
Post
vehicle,
an
employee
of
Canada
Post
"rear
ended"
a
vehicle
driven
by
Melita
Sjouwerman.
The
defendants,
Canada
Post
and
the
employee,
argued
that
the
statement
of
claim
filed
by
the
plaintiffs
was
barred
by
reason
of
subsection
11(1)
(equivalent
to
the
present
subsection
7(1))
of
the
P.A.P.A.
The
plaintiffs
maintained
that
the
P.A.P.A.
was
not
applicable
to
the
defendants
and
that
the
appropriate
limitation
period
was
the
two
year
period
found
in
the
Highway
Traffic
Act
of
Ontario
(R.S.O.
1980,
c.
406).
As
in
the
case
at
bar,
in
Sjouwerman,
the
provincial
legislation
was
made
relevant
by
subsection
19(1)
of
the
then
Crown
Liability
Act,
now
amended
as
subsection
32(1)
of
the
Crown
Liability
and
Proceedings
Act.
The
Court,
at
page
295
(C.P.C.
116),
phrased
the
issue
as:
.
.
I.
whether
the
words
"between
subject
and
subject"
incorporate
the
limitation
period
of
the
P.A.P.A.
or
of
the
H.T.A.
After
canvassing
a
number
of
authorities
as
to
the
meaning
of
the
word
"subject",
the
court
concluded,
at
page
297
(C.P.C.
118-19),
that:
In
the
light
of
these
definitions,
clearly
what
Parliament
intended
with
reference
to
an
action”
between
subject
and
subject"
was
an
action
between
persons”
or
"individuals".
That
that
was
the
intention
can
be
seen
in
the
French
version
of
both
paragraph
11(a)
and
subsection
19(1),
which
states
the
analogous
phrase
as
"entre
particuliers”,
i.e.,"between
individuals”.
Therefore,
just
as,
in
response
to
a
request
to
speak
on
the
subject
of
the
Queen,
Oscar
Wilde
proclaimed
that
"the
Queen
is
not
a
subject”,
so
must
I
conclude
that
neither
are
Her
servants
or
agents
in
their
capacities
as
such.
In
the
decision
of
the
Ontario
Divisional
Court
referred
to
above
in
actions
against
certain
individuals
that
are
parallel
to
this
one,
that
Court
distinguished
Sjouwerman
on
the
basis
that
it
"concerned
the
application
of
the
Crown
Liability
Act.
.
.
because
the
action
was
against
a
Crown
agency
and
one
of
its
servants."
As
opposed
to
the
actions
in
the
Ontario
courts,
the
case
at
bar
directly
involves
the
Crown
and
therefore,
in
that
respect,
is
indistinguishable
from
Sjouwerman.
But
with
great
respect,
I
do
not
agree
with
the
Ontario
Court
of
Appeal's
interpretation
of
the
phrase
“between
subject
and
subject"
in
the
context
of
the
Crown
Liability
and
Proceedings
Act.
It
is
not
at
all
clear
to
me
that
Parliament's
intention,
in
utilizing
this
phrase
in
section
32
of
the
Crown
Liability
and
Proceedings
Act
and
in
the
predecessor
section
was
to
restrict
the
application
of
provincial
limitation
statutes
at
the
federal
level
to
actions
between
persons
or
individuals.
Given
that
the
Crown
Liability
and
Proceedings
Act
under
both
that
title
and
its
previous
title
is
concerned
largely
with
the
liability
of
the
federal
Crown
and
its
servants,
and
given
that
the
federal
Crown
is
neither
an
individual
nor
a
person,
it
would
appear
to
me
to
be
illogical
to
incorporate
by
reference
provincial
limitation
laws
if
the
consequence
of
that
incorporation
is
to
be
that
section
32
of
the
Crown
Liability
and
Proceedings
Act
is
only
applicable
to
individuals
or
persons.
As
I
interpret
it,
Parliament's
intention
in
enacting
section
32
of
the
Crown
Liability
and
Proceedings
Act
and
its
predecessor
section
was
to
provide
that
in
situations
involving
limitation
periods,
the
relevant
provincial
limitation
periods
apply
to
the
federal
Crown
as
they
would
to
any
other
litigant
in
an
action
arising
in
a
province.
In
support
of
this
I
refer
to
section
3
of
that
Act
which
states
in
part:
The
Crown
is
liable
in
tort
for
the
damages
for
which,
if
it
were
a
private
person
of
full
age
and
capacity,
it
would
be
liable.
.
.
.
In
the
case
at
bar
the
relevant
provincial
legislation
is
the
P.A.P.A.
It
would
appear
to
me
that,
given
my
finding
that
the
relevant
date
from
which
the
limitation
periods
are
to
run
is
June
4,
1990,
and
since
the
present
action
was
started
on
June
16,
1992
or,
even
if
it
can
be
linked
to
the
earlier
notice
and
statement
of
claim,
no
earlier
than
December
24,
1990,
the
claim
of
the
respondents
is,
at
least
in
the
absence
of
special
circumstances,
statute
barred.
Assuming
that
I
am
correct
in
my
finding
that,
at
least
at
this
point
in
the
analysis,
the
limitation
period
in
the
P.A.P.A.
applies,
the
respondents
contend
that
this
is
not
the
end
of
the
matter.
They
argue
the
special
protection
of
a
shortened
limitation
period
is
to
be
interpreted
strictly
so
as
not
to
apply
in
any
action
based
upon
mala
fides,
the
rationale
being
that
ma/a
fides
conduct
cannot
be
deemed
to
have
been
done
within
the
parameters
of
a
statute.
In
support
of
this
position,
counsel
for
the
respondents'
written
submissions
referred
to
a
1981
decision
of
the
Ontario
High
Court
of
Justice,
Cascone
v.
Rodney,
34
O.R.
(2d)
618,
131
D.L.R.
(3d)
593.
In
that
case,
a
person
who
was
involuntarily
admitted
to
a
psychiatric
institution
for
one
day,
later
commenced
an
action
against
the
attending
physician
and
other
"lay"
individuals.
Section
58
of
the
Ontario
Mental
Health
Act,
R.S.O.
1970,
c.
269,
provided
for
a
six
month
limitation
period
in
which
a
person
could
start
an
action
against
a
person
or
facility
"for
anything
done
or
omitted
to
be
done
in
pursuance
or
in
intended
pursuance
of
this
Act
or
regulations".
The
Ontario
High
Court
found
that
the
physician
in
that
case
warranted
the
protection
of
the
Mental
Health
Act's
limitation
period
since
there
was
no
accusation
of
mala
tides
against
him.
As
for
the
other
defendants,
Mr.
Justice
Linden
found
that
their
alleged
actions
were
not
within
the
parameters
of
the
Mental
Health
Act
and
thus,
they
should
not
reap
its
benefits.
At
page
623
(D.L.R.
599)
he
stated:
Such
conduct
would
be
an
abuse
of
power,
not
an
exercise
of
power,
and
hence
it
would
not
be
deserving
the
special
protection
afforded
by
the
short
limitation
period.
In
short,
if
a
person
knows
he
is
doing
something
that
is
not
authorized
by
statute
he
cannot
shelter
himself
by
pretending
that
he
is
acting
pursuant
to
the
statute.
Later
at
page
624
(D.L.R.
600),
this
was
added:
Nothing
in
these
reasons
should
be
taken
to
accept
as
truth
these
allegations,
which
may
or
may
not
be
true.
Whether
the
plaintiff
will
be
able
to
prove
these
allegations
at
trial
is
an
entirely
separate
matter
which
I
am
not
called
upon
to
decide
on
this
motion.
All
that
is
decided
here
is
that
the
plaintiff
is
entitled
to
prove
the
allegations
at
trial.
I
note
that
in
an
unreported
1992
decision,
the
New
Brunswick
Court
of
Appeal
in
Belding
Estate
v.
Clarke
Drummie
&
Co.,
file
no.
57/CA/92,
September
23,
1992,
adopted
Mr.
Justice
Linden's
rationale.
In
that
case,
the
question
was
whether
a
person
purportedly
acting
outside
the
scope
of
the
relevant
legislation
could
rely
upon
a
six
month
limitation
period
in
that
legislation
as
a
defence
to
an
action
brought
against
her.
After
quoting
the
passage
at
page
623
(D.L.R.
599)
which
is
reproduced
above,
the
Court
at
page
5
stated:
While
I
entertain
some
doubts
whether
the
allegations
against
Ms.
Allen
that
are
raised
in
the
pleadings
can
be
elevated
to
mala
tides,
that
issue,
is
one
that
can
only
be
determined
after
hearing
the
evidence.
After
hearing
such
evidence,
the
trial
judge
may
well
conclude
that
the
protections
in
subsections
66(1)
and
(2)
are
available
to
Ms.
Allen.
All
I
am
saying,
to
use
the
words
of
Linden,
J.
in
Cascone,
is
that
the
appellants
are
"entitled
to
try
and
prove
the
allegations
at
trial".
I
find
that
I
too
am
in
agreement
with
the
rationale
of
Mr.
Justice
Linden
and
that
his
rationale
in
Cascone
here
applies.
The
allegations
in
the
statement
of
claim
are
of
a
most
serious
nature.
If
malicious
prosecution
is
proven
at
trial
then
the
limitation
period
prescribed
in
the
P.A.P.A.
should
not
be
available
as
a
defence.
Whether
malicious
prosecution
can
be
proven,
however,
cannot
be
determined
without
discoveries
and
the
benefit
of
a
trial.
Therefore,
because
of
the
nature
of
the
allegations
herein,
I
find
that,
despite
my
conclusion
that
the
P.A.P.A.
would
otherwise
apply
and
that
the
limitation
period
provided
therein
expired
before
commencement
of
this
action
and
indeed
before
commencement
of
any
other
action
to
which
this
one
could
conceivably
be
related,
it
would
be
inappropriate
to
bar
a
continuation
of
this
action
based
on
a
statutory
limitation
period,
which
may,
or
may
not,
be
applicable,
depending
upon
whether
mala
tides
is
proven
at
the
trial
itself.
The
relevant
statutory
provisions
for
the
second
limitation
issue
are
subsections
111(1)
and
112(1)
of
the
Excise
Tax
Act,
R.S.C.,
1985
as
quoted
above.
For
the
reasons
above,
despite
the
fact
that
on
the
face
of
the
provisions
they
would
appear
to
apply
equally
as
subsection
7(1)
of
the
P.A.P.A.
would
appear
to
apply
through
the
medium
of
section
32
of
the
Crown
Liability
and
Proceedings
Act,
I
conclude
once
again
that
it
would
be
inappropriate
to
allow
the
applicant
to
take
advantage
of
a
limitation
period
that,
depending
on
the
outcome
of
the
trial
itself,
might
in
fact
not
be
applicable.
3.
Proposal
to
strike
paragraphs
7,
8,
9,
10,
T1,
12,
13,
14,
22,
23,
25,
30(d),
30(f),
31(d),
32(b)
and
32(d)
from
the
statement
of
claim.
Counsel
for
the
applicant
took
the
position
that
all
of
these
paragraphs
should
be
struck
because
they
are
res
judicata
in
that
they
refer
to
or
challenge
the
deduction
rate
applied
to
Olympia
in
arriving
at
the
assessment
of
tax,
interest
and
penalties
which
was
certified
and
registered
as
a
judgment
of
this
Court.
Her
position
then
is
that
the
deduction
rate
in
question
has
been
adjudicated.
Since
the
cited
paragraphs,
in
her
submission,
do
nothing
more
than
attack
the
basis
of
the
certificate,
they
are
designed
to
relitigate
a
decided
matter.
Counsel
for
the
respondents
denies
that
the
paragraphs
in
question
attack
the
basis
of
the
certificate
and
urges
that
they
are
central
to
the
claim
and
go
to
the
question
of
malicious
prosecution
and
the
motivation
of
servants
of
the
applicant.
Counsel
for
the
applicant
relied
on
Rule
419(1)(f)
of
the
Federal
Court
Rules
which
provides
as
follows:
419.(1)
The
Court
may
at
any
state
of
an
action
order
any
pleading
or
anything
in
any
pleading
to
be
struck
out,
with
or
without
leave
to
amend,
on
the
ground
that,
(f)
it
is
otherwise
an
abuse
of
the
Court,
and
may
order
the
action
to
be
stayed
or
dismissed
or
judgment
to
be
entered
accordingly.
Generally,
it
has
been
found
that
the
Court
will
only
strike
pleadings
in
plain
and
obvious
cases
where
the
case
is
beyond
doubt.
In
Attorney
General
of
Canada
v.
Inuit
Tapirisat
of
Canada,
[1980]
2
S.C.R.
735,
115
D.L.R.
(3d)
1
at
page
740
(D.L.R.
5),
Mr.
Justice
Estey
stated
that:
As
I
have
said,
all
the
facts
pleaded
in
the
statement
of
claim
must
be
deemed
to
have
been
proven.
On
a
motion
such
as
this
a
Court
should,
of
course,
dismiss
the
action
or
strike
out
any
claim
made
by
the
plaintiff
only
in
plain
and
obvious
cases
and
where
the
court
is
satisfied
that
"the
case
is
beyond
doubt":
Ross
v.
Scottish
Union
and
National
Insurance
Co.
(1920),
47
O.L.R.
308,
53
D.L.R.
415
(App.
Div.)
In
Sopinka,
Lederman
and
Bryant's
The
Law
of
Evidence
in
Canada,
Butterworth's,
Toronto
and
Vancouver,
1992,
at
page
990,
the
following
is
stated
regarding
res
judicata
in
respect
of
civil
matters:
The
constituent
elements
of
estoppel
by
res
judicata
were
enunciated
by
Aikens,
J.
in
Re:
Bullen:
(i)
that
the
alleged
judicial
decision
was
what
in
law
is
deemed
such;
(ii)
that
the
particular
judicial
decision
relied
upon
was
in
fact
pronounced,
as
alleged;
(iii)
that
the
judicial
tribunal
pronouncing
that
decision
had
competent
jurisdiction
in
that
behalf;
(iv)
that
the
judicial
decision
was
final;
(v)
that
the
judicial
decision
was,
or
involved,
a
determination
of
the
same
question
as
that
sought
to
be
controverted
in
the
litigation
in
which
estoppel
is
raised;
(vi)
that
the
parties
to
the
judicial
decision,
or
their
privies,
were
the
same
persons
as
the
parties
to
the
proceeding
in
which
the
estoppel
is
raised,
or
their
privies,
or
that
the
decision
was
conclusive
in
rem.
Clearly,
the
issue
here
in
question
turns
on
whether
the
test
in
paragraph
(v)
quoted
above
is
met.
In
my
view
it
is
not.
The
questions
at
issue
are
quite
different.
On
this
point
I
can
do
nothing
more
than
simply
agree
with
the
position
put
forward
on
behalf
of
the
respondents.
To
strike
the
paragraphs
in
question
would
decimate
the
respondent's
claim.
It
would,
indirectly,
amount
to
a
granting
of
the
motion
for
summary
judgment
on
the
grounds
that
the
pleadings
disclose
no
serious
issue
to
go
to
trial.
Certainly
without
the
paragraphs
in
question
the
argument
in
favour
of
such
a
position
would
be
much
stronger.
Given
that
I
have
concluded
against
granting
such
a
result
directly,
I
am
not
prepared
to
accede
to
this
element
of
the
applicant's
request.
I
find
that
the
paragraphs
in
question
do
not
attack
the
basis
of
the
certificate
but
rather
are
supportive
of
allegations
of
malicious
prosecution.
4.
Stay
of
proceedings
pending
disposition
of
related
proceedings
in
the
courts
of
Ontario.
Finally,
the
applicant
requests
a
stay
of
proceedings
in
this
Court
until
parallel
proceedings
in
the
courts
of
Ontario
may
work
their
way
through
to
conclusion.
(The
requested
relief
is
actually
narrower
than
I
have
stated
it
to
be
but,
as
a
result
of
submissions
before
me,
I
have
interpreted
it
broadly.)
As
I
understand
this
position,
the
rationale
is
that
the
proceedings
in
the
Ontario
courts
are
broader
in
scope
than
the
issues
in
question
in
this
action.
Therefore,
if
the
actions
in
that
forum
are
without
basis,
it
would
be
helpful
to
have
such
a
decision
in
the
consideration
of
matters
before
this
Court.
Counsel
for
the
applicant
also
submitted
that
the
applicant
may
suffer
some
prejudice
if
decisions
in
this
Court
were
to
conflict
with
decisions
in
another
forum,
when
the
subject
matter
is
substantially
the
same
in
both
forums.
An
equivalent
request
was
made
to
the
Ontario
Court
of
Justice
on
the
basis
of
these
proceedings
and
was
denied.
Madam
Justice
Caswell,
in
the
decision
referred
to
above,
dealt
with
the
issue
of
staying
proceedings
in
part
in
the
following
terms
at
pages
7-9:
In
order
to
justify
a
stay,
the
onus
is
on
the
defendants
to
satisfy
the
Court
that
the
continuance
of
the
action
would
be
oppressive
or
vexatious
and,
hence,
be
an
injustice,
or
that
it
would
be
an
abuse
of
process
of
the
court.
In
addition,
the
stay
must
not
cause
an
injustice
to
the
plaintiff.
See
Richardson
Securities
of
Canada
v.
Cohen-Bassous
et
al.
(1977),
18
O.R.
(2d)
439,
82
D.L.R.
(3d)
715,
6
C.P.C.
226
(H.C.).
The
defendants
argue
that
the
multiplicity
of
the
proceedings
is
vexatious
in
itself.
I
do
not
agree.
In
addition,
there
is
real
prejudice
to
the
plaintiff
should
the
plaintiff
not
be
permitted
to
proceed
in
these
courts
since
claims
against
the
individual
defendants
are
both
different
and
wider
in
scope
than
the
claim
against
the
Queen
in
the
Federal
Court.
While
there
may
be
some
prejudice
to
the
defendants,
it
would
be
wrong
to
stay
the
plaintiff's
substantive
claims
for
procedural
reasons
only.
Accordingly,
the
stay
of
proceedings
is
denied.
The
same
reasoning
applies
to
a
stay
in
this
Court.
Prejudice
to
the
personal
respondent
(plaintiff)
would
arguably
be
greater
if
the
proceedings
were
stayed
in
this
Court,
given
the
quantum
of
her
claim
against
the
applicant
(defendant).
The
corporate
respondent
is,
as
I
understand
it,
not
a
party
to
the
parallel
proceedings
so
prejudice
in
its
case
could
be
even
greater.
Prejudice
to
the
applicant,
which
is
not
a
party
to
the
parallel
proceedings,
is
arguably
less
than
the
prejudice
flowing
from
failure
to
grant
the
stay
in
favour
of
the
individual
defendants
in
the
parallel
proceedings.
For
the
foregoing
reasons,
I
am
not
prepared
to
grant
a
stay.
Conclusion
In
the
result,
summary
judgment
on
the
action
is
denied,
as
are
an
order
striking
paragraphs
from
the
statement
of
claim
and
a
stay
of
the
action
pending
an
appeal
or
any
other
steps
in
the
parallel
proceedings
before
the
Ontario
Court
of
Justice.
As
indicated
earlier
in
these
reasons,
the
issue
of
security
for
costs
will
be
dealt
with
following
written
submissions
served
and
filed
in
accordance
with
my
order
in
that
regard.
Counsel
may
wish
to
consider
making
submissions
as
to
costs
in
respect
of
this
motion
at
the
same
time.
Application
dismissed.
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