



COURT OF APPEAL FOR ONTARIO

CITATION:  Canadian Imperial Bank of Commerce v. Deloitte
    & Touche, 2014 ONCA 89

DATE: 20140203

DOCKET: C56940

Doherty, Goudge and Lauwers JJ.A.

BETWEEN

Canadian Imperial Bank of Commerce, High River
    Limited Partnership, Philip Services Corp. by its receiver and manager, Robert
    Cumming

Plaintiffs (Appellants)

and

Deloitte & Touche, Deloitte
    & Touche LLP, Deloitte Touche Tohmatsu, Deloitte Touche Tohmatsu LLP, and
    Deloitte Touche Tohmatsu f/k/a/ Deloitte Touche Tohmatsu International

Defendants (Respondents)

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

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

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

Heard:  November 8, 2013

On appeal from the order of Justice Paul M. Perell of the
    Superior Court of Justice, dated April 11, 2013, with reasons reported at 2013
    ONSC 2166.

Doherty J.A.:


I



overview

[1]

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

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

[2]

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

[3]

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

[4]

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


II



background

[5]

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

[6]

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

[7]

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

[8]

At some point
during the
    discoveries of Deloitte, counsel for the plaintiffs (appellants in this court)
    asked questions about the information provided to and generated by the
    Institute in the discipline proceedings against Mr. Woodsford.  Those questions
    were met with refusals, which, in turn, precipitated a motion to compel
    answers:  see
CIBC v. Deloitte & Touche
,
2013 ONSC 917.

[9]

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


III



the reasons of the motion judge

[10]

The
    motion judge began by explaining the relevance of the proper interpretation of
    s. 61 of the
CAA, 2010
to the motion to amend the pleadings.  He reasoned
    that, if s. 61 rendered the material relating to Mr. Woodsfords discipline
    proceedings inadmissible in the action, the proposed amendments to the
    statement of claim referring to the discipline proceedings and related material
    would be legally untenable and must be refused:  see
F. (M.) v. N.S.
(2000), 188 D.L.R. (4th) 296, at p. 310 (Ont. C.A.).  He further reasoned that,
    if s. 61 did not exclude from evidence the material relating to Mr. Woodsfords
    discipline proceedings, the amendments should be allowed, given the very broad
    mandatory language in Rule 26.01 of the
Rules of Civil Procedure
, R.R.O.
    1990, Reg. 194

governing amendments to pleadings.  No one takes issue
    with this part of the motion judges analysis.

[11]

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


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

[12]

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

·

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

·

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

·

Section 61 is a purely procedural provision and, by virtue of the
    common law principles of statutory interpretation and s. 52 of
Legislation
    Act, 2006
, S.O.

2006
, c. 21, Sch. F, the section should
    be interpreted retrospectively (paras. 123-25).

·

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

[13]

The
    motion judge refused to permit the amendments to the claim.


IV



analysis

[14]

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

[15]

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

·

the principle that procedural rules operate retrospectively;

·

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

·

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

·

the significance of the unusual circumstances of this case.

(a)

The principle that procedural rules operate retrospectively

[16]

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

[17]

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

[18]

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


[19]

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

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

[20]

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

[21]

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

·

a record of a proceeding under this
Act
;

·

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

·

a decision or order made in such a proceeding.

[22]

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

[23]

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

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

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

[24]

As
    observed by the motion judge, at para. 88, procedural provisions are, in the
    absence of a legislative indication to the contrary, presumed to have
    immediate effect and apply retrospectively to existing proceedings.  While,
    as noted by Professor Sullivan, the use of the word retrospective in this
    context may be a misnomer, the common law has for at least 150 years presumed the
    immediate application of all procedural legislation to proceedings whether those
    proceedings were commenced before or after the enactment of that legislation: 
    Ruth L. Sullivan,
Sullivan on the Construction of Statutes
, 5th ed. (Markham:
    LexisNexis, 2008), at pp. 696-98; see also
R. v. Dineley
, 2012 SCC 58,
    [2012] 3 S.C.R. 272, at para. 10, Deschamps J., for the majority, and at para.
    35, Cromwell J., dissenting.

[25]

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

[26]

I
    cannot accept the appellants submission that s. 61 is a substantive provision
    in that it removes the plaintiffs vested right to rely on the discipline proceedings
    to support the contention that Deloitte should be
estopped
from contesting some of the allegations of negligence
    advanced in this action
.
Issue
    estoppel

and related concepts are a means of proof and are
    generally regarded as part of the law of evidence.  Where
issue estoppel
applies, a party relies on
    the
estoppel
to establish a
    fact or facts, and the opposing party is foreclosed from challenging the fact
    or facts that are the subject of the
estoppel
: 
    see
Penner v. Niagara (Regional Police

Services Board)
, 2013 SCC 19.

[27]

If
    s. 61 applies to the documents relating to Mr. Woodsfords discipline
    proceedings, it removes one evidentiary route by which the plaintiffs could
    potentially prove certain factual allegations in the claim.  Section 61 does
    not, however, alter the substance of the plaintiffs claim or their rights if
    the claim is established.  As Robins J.A.

explained
    in
Bickford
, at p. 189, in rejecting
    an argument that a change in the law eliminating the requirement of
    corroboration denied an accused the right to be acquitted absent corroboration
:

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

[28]

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

[29]

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

[30]

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

[31]

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

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

[32]

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

[33]

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

(b)

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

[34]

The
    purpose or object of a statute or a specific provision within the statute is
    part of the context that must be taken into account when interpreting that
    statutory provision.  One assumes that the legislature did not intend to enact
    a provision in a statute that is inconsistent with the purpose of the statute. 
    If the plain meaning of a statutory provision would defeat the purpose of the
    legislation or produce a capricious or arbitrary result, and there is a
    plausible contextual reading of the statute that is not inconsistent with its
    purpose, the plain meaning will be rejected in favour of that plausible reading: 
    see
Rizzo & Rizzo Shoes Ltd. (Re)
, [1998] 1 S.C.R. 27, at pp. 43,
    49; and Sullivan, at pp. 304-306.

[35]

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

[36]

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

[37]

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

[38]

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

[39]

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

[40]

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

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

[41]

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

[42]

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

[43]

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

[44]

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

[45]

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

(c)

The significance of the other references to the
CAA,
    1956

[46]

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

[47]

I
    cannot, however, agree with the motion judge that the interpretation of s. 61
    in a manner consistent with its plain meaning depends on drawing the inference
    that the 1956
Act

was
    deliberately excluded from the scope of s. 61.  Section 61 does not mention the
CAA, 1956
.  The issue is not whether the Legislature deliberately
    excluded the
CAA, 1956
from s. 61, but whether a context-driven
    analysis of s. 61 demands that the section be read as including the
CAA,
    1956
despite the express language to the contrary.  In my view, it does
    not.

[48]

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

(d)

The significance of the unusual circumstances

[49]

The
    motion judge said, at para. 121:

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

[50]

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

[51]

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

[52]

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


V



conclusion

[53]

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

[54]

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


[55]

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

RELEASED:  DD  FEB 03
    2014

Doherty
    J.A.

I
    agree S.T. Goudge J.A.

I
    agree P. Lauwers J.A.





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



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


