



COURT OF APPEAL FOR ONTARIO

CITATION: Am-Stat Corporation v. Ontario, 2018 ONCA 877

DATE: 20181031

DOCKET: C65093

Doherty, van Rensburg and Hourigan JJ.A.

BETWEEN

Am-Stat Corporation

Plaintiff (Appellant)

and

Her Majesty the Queen in Right of Ontario
, and

Minister
    of Government and Consumer Services

Defendants (
Respondent
)

R.B. Moldaver Q.C., for the appellant

A. Jin, for the respondent

Heard and released orally: October 29, 2018

On appeal from the
    judgment of Justice Victoria R. Chiappetta of the Superior Court of Justice,
    dated March 8, 2018.

REASONS FOR DECISION

[1]

The appellant appeals the dismissal on a Rule 21
    motion of its claim for negligence against Her Majesty the Queen in Right of
    Ontario (HMQ).

[2]

The appellant, a mortgage broker, was defrauded
    by George Nastevski, who claimed to be the sole owner and officer of Aldrogian
    Holdings Inc. Nastevski persuaded the appellant to advance $1.8 million in
    loans secured by mortgages on property owned by Aldrogian. In fact Nastevski
    had no affiliation with Aldrogian. The appellant claims that, in advancing the
    money it relied on a corporation profile report and other documents it obtained
    from the Ministry of Government and Consumer Services that incorrectly
    identified Nastevski as a director and officer of Aldrogian. In fact Nastevski,
    who had no relationship with Aldrogian, had filed a fraudulent notice of change
    to that effect.

[3]

The claim against HMQ is for the appellants
    loss as a result of advances made pursuant to worthless mortgages taken by the
    [appellant] as a result of [HMQs] negligence. The statement of claim alleges
    essentially that the Ministry owed a duty of care both to the public and in
    particular the appellant, to reasonably ensure the accuracy and reliability of
    the information it collected, maintained and disseminated for a fee, when the
    Ministry knew or ought to have known that the appellant would rely upon such
    information.

[4]

The issue on this appeal is whether the motion
    judge erred in her application of the
Anns/Cooper
test when she concluded that there was no duty of care owed by the
    respondent to the appellant to ensure the accuracy of the information it
    collected and then provided upon the payment of a fee. The appellant says that
    the motion judge erred in law first, in failing to recognize a
prima
    facie
duty of care, and then in her conclusion that the
    recognition of such a duty would be against public policy.

[5]

We reject the appellants arguments. The
    appellants claim against the respondent fails at the first stage of the
Anns/Cooper
test.

[6]

As the motion judge noted, when the defendant is
    a public actor, a relationship of proximity giving rise to a
prima
    facie
duty of care may only arise explicitly or by implication
    from the language of the governing legislation or from the nature of the
    interactions between the parties. See
R. v. Imperial Tobacco
, 2011 SCC 42, at paras. 43-45;
Cooper v. Hobart
, 2001 SCC 79, at para. 43.

[7]

We reject the appellants assertion that because
    the Act does not expressly exclude a private law duty of care, it must exist.
    That is not the law.

[8]

The governing legislation is the
Corporations
    Information Act
, R.S.O. 1990, c. C.39, which requires all
    corporations carrying on business in Ontario to file certain prescribed
    information and changes in information (including a record of officers and
    directors of the corporation). The corporation profile report reflects
    information on the public record for the subject corporation as of the date the
    report is ordered.

[9]

There is nothing in the Act that points to an
    intention to create a private law duty of care on the part of the regulator to
    third parties to ensure the accuracy of information that is filed by or on
    behalf of corporations with the Ministry. Moreover, the language of the statute
    itself is inconsistent with the imposition of such a duty.

[10]

Section 8 requires the Minister to enter into a
    record the information from every return and notice that is received under the
    Act. Section 21 provides specifically that the Minister may accept the
    information contained in any return or notice filed under [the] Act without
    making any inquiry as to its completeness or accuracy. And the Ministers
    certificate contemplated by s. 19 cannot address the accuracy of the
    information in the Ministrys files but is limited to certifying that the
    information set out in that section has or has not been filed.

[11]

The appellant asserts that because HMQ has the
    discretion not to publish the information it receives, once it decides to make
    the information public, it undertakes a duty to ensure its accuracy. There is
    no such discretion. Section 10 provides for a right of public access to the
    information that is filed and maintained by the Ministry upon payment of the
    prescribed fee.

[12]

We agree with the motion judges conclusion that
    reliance by third parties on the information accepted by the Ministry is not
    contemplated by the Act.

[13]

Second, the motion judge did not err in finding
    that the payment of a fee in exchange for access to the public corporate
    record, was insufficient to constitute a direct interaction giving rise to
    proximity. There is no rule that the payment of a fee automatically imposes a
    private law duty of care by a payee to a payor. The appellant has pointed to no
    case authority in support of its submission that the payment of a fee in and of
    itself creates a relationship that gives rise to a
prima facie
duty of care.

[14]

For these reasons we agree with the motion judge
    that it is plain and obvious the claim cannot succeed. Therefore we dismiss the
    appeal. Costs to the respondent in the agreed amount of $2,000, inclusive of
    HST and disbursements.

Doherty
    J.A.

K.
    van Rensburg J.A.

C.W. Hourigan
    J.A.


