





CITATION:
Marks v. Ottawa (City), 2011 ONCA 248



DATE: 20110401



DOCKET: C51745



COURT OF APPEAL FOR ONTARIO



Feldman, Juriansz and LaForme JJ.A.



BETWEEN



Bruce D.
          Marks, Irina Marks and Julia Marks, by her
          litigation guardian, Bruce D. Marks




Appellants



and



The City of
          Ottawa, Justin Maheux and Jennifer
          Natividad and Derek Petch




Respondents



Richard Marks,
          for the appellants



Pierre Champagne, for the respondents City of Ottawa and Derek Petch

No one appearing for the respondents Justin Maheux and
          Jennifer Natividad
[1]



Heard: November 8, 2010



On appeal from the order of Justice Denis J. Power of the
          Superior Court of Justice dated January 28, 2010, with reasons reported at 2010
          ONSC 112.



H.S. LaForme J.A.:



OVERVIEW

[1]

This case involves disgruntled neighbours in the
    City of

Ottawa.  It began with a request for access to a
    neighbours property, which resulted in legal proceedings, intervention by the
    City of Ottawa, and the commencement of litigation.

[2]

The appellants, Mr. and Ms. Marks (and their
    daughter Julia, who was born in the midst of the circumstances at issue), were
    next door neighbours of the respondents Justin Maheux and Jennifer Natividad. 
    They respectively occupied the premises at 296 and
300
    Royal Avenue.  The by-laws in question are the right-of-entry
    by-law and the fencing by-law of the respondent City of Ottawa.  The
    respondent Derek Petch at all relevant times was a by-law officer employed by
    the
city.

[3]

This appeal focuses on the litigation process
    and procedures.  Basically, the Marks
    sought leave to amend their original statement of claim pursuant to rules 26.01,
    26.02(c), 37.02(2), 77.12(1), 77.12(2)(a) and 77.12(4) of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194.  The motion judge denied leave to amend in some but not all respects and
    the Marks appeal.

BACKGROUND

[4]

Because this appeal involves pleadings, I will
    set out the background as I understand it based on a combination of the
    assertions of the parties, the pleadings and proposed amendments, and the
    judgment below.  Early in 2007 Ms.
    Natividad and Mr. Maheux sought permission to enter on the Marks land in order
    to waterproof a portion of their basement wall.  Permission was granted subject to certain conditions, such as the
    acquisition of insurance and scheduling acceptable to the Marks.

[5]

Ms. Natividad and Mr. Maheux refused to agree to
    the conditions and instead applied for a right-of-entry permit from the City of
    Ottawa pursuant to a recent by-law.  Derek Petch became responsible for arranging the entry permit and
    approached the Marks to advise them of his involvement.  They advised Mr. Petch of their concerns, and
    he agreed that he would bring these issues to the attention of the appropriate
    city officials.

[6]

On Thursday May 24, 2007 the permit was issued,
    and early in the morning on the following Monday, workers hired by Ms.
    Natividad and Mr. Maheux removed the fence separating the properties and began
    excavating.  The police were called and
    they, along with Mr. Petch, attended and Mr. Petch explained to the police that
    Ms. Natividad and Mr. Maheux had a valid permit.

[7]

The Marks contest the permits validity on the
    basis that the by-law requires at least one days clear notice to the
    subservient owner before entry can be made.  They allege Mr. Petch did not advise them he had issued the permit until
    late Friday afternoon.  They say Mr.
    Petch did not tell the police that proper notice under the by-law had not been
    given for the entry.

[8]

On May 28, 2007, the Marks obtained an
ex parte
injunction enjoining Ms.
    Natividad and Mr. Maheux from encroaching onto the Marks property.

[9]

In early June 2007, Mr. Petch attended the
    Marks property and conducted an investigation with the intent to prosecute the
    Marks for by-law infringement based on the existing fence.  Apparently, a previous complaint about the
    fence had been made to the City in connection with a fence on the Marks
    property.  The previous complaint, it
    seems, resulted in a resolution that no further prosecution should be made
    unless the City received a new complaint.  The Marks allege that Mr. Petch knew that no new complaint had been
    made.

[10]

After the investigation, a City solicitor wrote
    to Mr. Petch advising him that he should prosecute the Marks for a breach of
    the city's fencing by-law.  That
    prosecution was dismissed at the end of the City's case on a non-suit
    motion.  The structures in question were
    found not to meet the definition of "fence" set out in the by-law.

[11]

On June 6, 2007  being the return of the
ex parte
injunction motion  a new
    survey of the boundary demonstrated that the work intended would result in a
    permanent encroachment on the Marks land.  Nevertheless, the injunction was lifted so as to allow the performance
    of work pursuant to the permit, subject to a written undertaking that the work
    would not encroach on the Marks property.  T
he work was completed
    on June 25, 2007.

[12]

In December of 2007, Mr. and Ms. Marks commenced
    proceedings  seeking: (i) $250,000 for
    trespass, nuisance and punitive damages against Ms. Natividad and Mr. Maheux;
    (ii) $350,000 from the City of Ottawa and Mr. Petch for breach of fiduciary
    duty, negligence and punitive damages; (iii) $300,000 from Mr. Petch alone for
    misfeasance in public office, negligent misrepresentation and punitive damages;
    and, (iv) general damages from all defendants in the amount of $100,000
    alongside a series of declarations.

[13]

On August 21, 2009, the Marks served a notice of
    motion seeking leave to amend their statement of claim.  Besides some changes made to the amounts of
    damages sought, the following claims were added to the initial claims made
    jointly against the City of Ottawa and Mr. Petch for breach of fiduciary duty
    and negligence:

·

misfeasance in public office;

·

negligent misrepresentation;

·

intentional causation of mental suffering and
    distress;

·

malicious
prosecution, or in the alternative negligent investigation and prosecution, or
    in the further alternative counselling malicious prosecution, or in the further
    alternative negligent counselling of prosecution.

[14]

The Marks did not seek to rely on any additional
    or new facts to support the additional claims they sought to add, other than in
    respect of malicious or negligent prosecution or counselling of prosecution.  After noting that the parties were in
    disagreement with respect to the applicable law and reviewing extensively the
    applicable rules and relevant case law, the motion judge concluded at para. 36 that:

Notwithstanding that the general rule is that amendments are
    presumptively approved, there is no absolute right to amend pleadings.  The court has a residual right to deny
    amendments where appropriate.

[15]

The
    motion judge denied the Marks leave to amend their statement of claim in some
    but not all respects, and they appeal from that decision.

ISSUES

[16]

The Marks argue that the motion judge erred in concluding
    that: (i) there was no possible cause of action for negligent misrepresentation
    or breach of fiduciary duty against a municipality or its by-law officer; and
    (ii) parts of the proposed amendments amounted to a collateral attack on an
    earlier judgment denying the appellants an injunction.  The issues on appeal can, therefore, be
    described in the following questions:

1.

Did the motion judge err in concluding that
    there was no possible cause of action for negligent misrepresentation?

2.

Did the motion judge err in concluding that
    neither a municipal corporation, nor its by-law officers administering
    municipal by-laws could be acting in a fiduciary relationship with a member of
    the public?

3.

Did the motion judge err in concluding that the
    amended statement of claim represented a collateral attack on the order of Ray
    J.?

[17]

In respect of questions one and two, I would
    dismiss the appeal on these grounds.  I
    believe that the motion judge did not err in either of these decisions and his
    reasoning was sound.  The third question,
    however, is a different matter.  I
    conclude the motion judge erred on this issue, and in this limited respect, the
    appeal should be allowed.

DISCUSSION

[18]

Rule 26.01 provides that:

On 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.

[19]

Although the general rule is that amendments are
    presumptively approved, there is no absolute right to amend pleadings. 
    The court has a residual right to deny amendments where appropriate:
Daniele v. Johnson
(1999), 45 O.R. (3d)
    498 (Div. Ct.) at paras. 11 -15.
[2]
Further, I would agree that the proper
    factors to be considered are those first set out in
Simrod v. Cooper
, [1952] O.W.N. 720 (H.C.J. Master) at p. 721,
    affd at p. 723 (H.C.J.), and quoted with approval in
Vaiman v. Yates
(1987), 60 O.R. (2d) 696 (H.C.J.) at p. 698, which can be summarized as follows:

·

An amendment should be allowed unless it would
    cause an injustice not compensable in costs.

·

The proposed amendment must be shown to be an
    issue worthy of trial and prima facie meritorious.

·

No amendment should be allowed which, if
    originally pleaded, would have been struck.

·

The proposed amendment must contain sufficient
    particulars.

[20]

There is no question that the motion judge was
    aware of the proper test.  The Marks
    complaint is that he misapplied it.  I
    agree, but as I have noted, only in respect of issue three.

Issue 1: Did the motion judge err in concluding that there was no possible
    cause of action for negligent misrepresentation?

[21]

As the motion judge correctly recognized, the
    Supreme Court of Canada in
Queen v.
    Cognos Inc.
, [1993] 1 S.C.R. 87 at p. 110 confirmed that there are five
    general  elements to the tort of
    negligent misrepresentation:

1.

There must be a duty of care based on a special
    relationship between the representor and the representee;

2.

The representation in question must be untrue,
    inaccurate, or misleading;

3.

The representor must have acted negligently in
    making said representation;

4.

The representee must have relied, in a
    reasonable manner, on said negligent misrepresentation;

5.

The reliance must have been detrimental to the
    representee in the sense that damages resulted.

[22]

While the motion judge  relying on
Edmundston (City) v. Maison du Parc Ltée
(1999),
    217 N.B.R. (2d) 291 (Q.B.)  accepted that a municipality can be held liable
    for negligent misrepresentation, he concluded at para. 70 that the plaintiffs
    have failed to plead a minimum level of material facts with respect to this
    alleged tort.  He noted at para. 71
    that:

[T]here is no special relationship between any of the
    plaintiffs and the defendants.  There is
    no suggestion in the pleadings that any of the plaintiffs relied on any such
    negligent misrepresentations nor is there anything pleaded alleging that the
    reliance was detrimental to the plaintiffs in the sense that damages resulted.

[23]

The motion judge thus held that [i]n the
    circumstances, the pleadings with respect to this tort should be struck.

[24]

The Marks argue that the elements of negligent
    misrepresentation were present in their pleadings.  They note that they did allege a
    misrepresentation, as they indicated that Mr. Petch misrepresented to the
    Ottawa Police the circumstances governing the right-of-entry permit.  They go on to say that the police relied on
    this misrepresentation as is evident from their decision to abandon their
    investigation.  And finally, they argue
    that this reliance was detrimental to the Marks because it permitted Ms.
    Natividad and Mr. Maheux to continue with their trespass and excavation.

[25]

Further, the Marks argue that the statement of
    claim does contain factual allegations which could support a finding that there
    is a special relationship between them and the City of Ottawa.  And, while they acknowledge that these
    factual allegations may not strictly satisfy the elements of negligent
    misrepresentation, they say that to deny their motion on this basis is to
    improperly bar them from making a novel argument
.

[26]

Finally, the Marks also suggest that the motion
    judges decision applies to both the allegations of negligent misrepresentation
    in the proposed amended statement of claim as well as in the original statement
    of claim.  If this is correct, they
    submit that he lacked jurisdiction to strike anything contained in the original
    statement of claim.

[27]

I agree that there should be some scope for a
    plaintiff to bring a novel claim or argue for the creation of a new tort.  In this case, however, the facts alleged fall
    so far outside of what has been established as negligent misrepresentation that
    I agree that there is no realistic prospect that the action will succeed.

[28]

As the respondents correctly note, the alleged
    misrepresentation was neither made to the Marks, nor did they rely on any such
    misrepresentation to their detriment  both necessary requirements.  Indeed, in para. 12 of their statement of
    claim the Marks specifically plead that the representation alleged was not made
    to them.  Accordingly, they could not
    have relied upon it.

[29]

The motion judge was correct to strike the
    amended pleadings in respect of negligent misrepresentation against either the
    City of Ottawa or Derek Petch.  As the
    motion judge found, the minimum level of material facts necessary to support a
    claim for negligent misrepresentation was not pleaded and this cause of action
    cannot succeed.

[30]

Finally, at para. 65 of his reasons the motion
    judge clearly indicated that his decision applied only to the claims of
    negligent misrepresentation found in the proposed amended statement of
    claim.  This ground of appeal must be
    dismissed.

Issue 2: Did the motion judge err in concluding that neither a municipal
    corporation, nor its by-law officers administering municipal by-laws could be
    acting in a fiduciary relationship with a member of the public?

[31]

The motion judge set out at para. 39 that
    according to the Supreme Court of Canada in
Frame v. Smith
, [1987] 2
    S.C.R. 99 at p. 136, a fiduciary relationship typically has three general
    characteristics: (i) the fiduciary has scope for the exercise of some
    discretion or power; (ii) the fiduciary can unilaterally exercise that power or
    discretion so as to affect the beneficiary's legal or practical interests; and
    (iii) the beneficiary is peculiarly vulnerable to or at the mercy of the
    fiduciary holding the discretion or power.

[32]

Citing
Windsor
    Roman Catholic Separate School Board v. Windsor (City)
(1988), 64 O.R. (2d)
    241 (C.A.),
McLaren v. Stratford (City)
(2004), [2004] 50 C.P.C. (5th) 310 (Ont. S.C.), and
Little
v. Ottawa (City)
(2004), 49 M.P.L.R. (3d) 115 (Ont. S.C.), the
    motion judge concluded at para. 42 that, it has been long held that a
    municipality does not owe a fiduciary duty to its citizens.

[33]

He distinguished the Marks argument that
Hill v. Hamilton-Wentworth Regional Police
    Services Board
, [2007] 3 S.C.R. 129 is analogous to this case as it is
    concerned with the duties and liabilities of police officers.  He noted that McLachlin C.J. expressly
    restricted the applicability of the decision to the relationship between a
    police officer and the particularized subject of an investigation.

[34]

The motion judge ultimately denied leave to
    amend the statement of claim because the cause of action is untenable.

[35]

The Marks argue that the motion judge failed to
    undertake any analysis of the facts pleaded to determine whether a fiduciary
    relationship could be found based on those facts.  Instead, they say he simply relied on case
    law indicating that a municipal corporation does not owe a fiduciary duty to
    its citizens.  They argue further that
    they did allege that the respondent, Derek Petch owed a special duty to them
    and that whether this duty could be characterized as a fiduciary duty is a question
    of fact that should have been determined at trial.

[36]

I would reject this ground of appeal.  One, even if someone in the position of Mr.
    Petch can ever owe a fiduciary duty to the residents of a municipality  a
    question that I am not deciding  a breach of fiduciary duty could not be found
    in the instant case.  I disagree with the
    Marks assertion that the facts pleaded can reasonably support a finding that
    the city or Mr. Petch owed a fiduciary duty to the Marks.

[37]

The essential elements of vulnerability or
    dependence of the appellants Irina and Julia Marks are clearly not
    present.  As the motion judge found at
    para. 54:

[N]
either the City nor
Mr. Petch (no
    allegations are made against him outside his status as a city employee) owed
    any fiduciary duty to Irina and Julia Marks since Bruce Marks was the
    registered owner of the property.  Neither was the subject of a charge under the City fencing by-law.

[38]

And, as the motion judge noted, at the relevant
    time Julia was not yet born.

[39]

This leaves Bruce Marks.  The paragraphs of the original statement of
    claim, which the Marks argue factually support the breach of fiduciary duty
    claim, merely allege that the defendant Petch (in his role as By-Law
    Enforcement Officer for the City of Ottawa) owed a duty to the plaintiffs to
    conduct an appropriate investigation and then list the alleged breaches.

[40]

The Marks appear to rely simply on their use of
    the word duty to support their claim, but fail to plead any facts that would
    support the existence of a fiduciary duty.  Consequently, sufficient material facts have not been pleaded to support
    a cause of action for the tort of breach of fiduciary duty.  This ground of appeal must be dismissed.

Issue 3: Did the motion judge err in concluding that the Marks claim
    constituted a collateral attack on a previous order?

[41]

There are two parts to this issue, both in
    connection with prior decisions and orders made by Ray J.:
Marks v. Ottawa (City)
(2007), 40 M.P.L.R. (4th) 264 (Ont.
    S.C.).  The first is in connection with
    the motion judges finding that certain of the proposed amendments
    amount to a collateral attack on Ray Js order.  The second is in respect of the
    motion judges view that the proposed amendments might amount to an abuse of
    process.

[42]

The Marks submit that the motion judge erred in
    both respects.  I will deal with each of
    these arguments in order.

Collateral attack

[43]

First, in
    para. 132(c) of his reasons, the motion judge ordered that [t]he plaintiffs
    shall remove from their Amended Statement of Claim all pleadings related to
    allegations of alleged wrongdoing by all defendants relating to their conduct
    in complying with the order of Ray J.  He made this order, as I said, because he found that some of the
    proposed amendments were a collateral attack on Ray Js decision.

[44]

It is helpful to recall that on May 28, 2007,
    the Marks obtained an
ex parte
injunction
    enjoining Ms. Natividad and Mr. Maheux from encroaching onto the Marks
    property.  This injunction was obtained
    pursuant to their judicial review application, wherein the Marks sought a
    declaration that the right-of-entry by-law was
ultra vires
and that it was null and void pursuant to the
    provisions of the
Canadian Bill of Rights
and the
Canadian Charter of Rights and
    Freedoms
.  They also argued that the
    by-law was contrary to the principles of natural justice and that it was
    invalid.  The remainder of the
    application was adjourned to June 6, 2007.

[45]

On the return of the application on June 6, 2007
     some five months before the commencement of this action  the parties agreed
    that the only issue was the continuation of the injunction.  For the purpose of the motion only, the Marks
    abandoned the issue of the validity of the by-law, and instead advanced as the
    serious issue that the right-of-entry permit was invalid as not complying
    with the requirements of the by-law.  The
    balance of the Marks application for judicial review remains outstanding.

[46]

At the hearing, the respondents argued that many
    of the issues
raised
in both the original statement of
    claim and the proposed amended statement of claim directly and indirectly
    attack the June 2007 order of Ray J.  In
    the instant case, the motion judge set out at para. 107 the doctrine of
    collateral attack by quoting the Supreme Court of Canadas decision in
Garland v. Consumers Gas Co.
, [2004] 1 S.C.R.
    629 at para. 71:

The doctrine of collateral attack prevents a party from
    undermining previous orders issued by a court or administrative tribunal....
    Generally, it is invoked where the party is attempting to challenge the
    validity of a binding order in the wrong forum, in the sense that the validity
    of the order comes into question in separate proceedings when that party has
    not used the direct attack procedures that were open to it (i.e., appeal or
    judicial review).

[47]

The motion judge found that Ray J. gave directions
    to the parties that were binding and that continue to be binding authorizing
    the issuance of the permit and entry onto the Marks property.  Specifically, at para. 124, the motion judge described
    the directions given and their effect this way:

Ray J. made an order - an order that, subject to the filing of
    a written undertaking, the respondents were entitled to enter upon Mr. Marks
    property and carry out work pursuant to an amended or re-issued right-of-entry
    permit.  It was a court order authorizing the respondents to proceed in a
    certain fashion.  Notwithstanding their compliance with this order, they
    have now been sued in this proceeding for hundreds of thousands of dollars for
    complying with the order.

[48]

The motion judge found that a substantial part
    of the Marks original statement of claim, and the proposed amendments, arise
    out of the issuance and execution of the right-of-entry permit.  As such, he held that these parts amount to a
    collateral attack on Ray Js order, although he noted at para. 128 that [o]n
    this motion I am concerned only with the proposed amended pleadings.

[49]

The Marks argue that the motion judge
    misapprehended the content and effect of the order made by Ray J.  That is to say, the motion judge erred in
    concluding that in effect Ray J. had found and ruled that the right-of-entry
    by-law and the issuance of the right-of-entry permit pursuant to it were valid
    in law.  They say he also erred in
    finding that Ray J. had authority and jurisdiction to in effect make a final
    order bestowing a licence upon the respondents entitling them to enter upon the
    property of the Marks.

[50]

The core of the Marks submissions is that the
    only jurisdiction Ray J. had in the matter was to make an order either lifting
    or continuing the injunction.  They say that
    the motion judges error had the effect of depriving them of their day in court
    relating to a substantial portion of their claim in trespass.  Their view is that they are not seeking to
    set aside or challenge the order of Ray J. but simply seeking the damages
    related to the inappropriate actions of the respondents.

[51]

Ray J. made clear that he was aware of the issue
    he was deciding, namely, whether or not to continue the interim injunction he
    granted on May 28, 2007.  And, he
    acknowledged that the correct legal test to be applied  and as agreed to by
    the parties  was that stated in
RJR-MacDonald
    Inc. v. Canada (Attorney General)
, [1994] 1 S.C.R. 311: (1) serious
    issue to be tried; (2) irreparable damage if the injunction is not issued; and
    (3) balance of convenience.

[52]

The analysis of Ray J.s jurisdiction requires
    the leaving aside of any consideration of the legality of the right-of-entry by-law
    because it was not before him.  As noted,
    the Marks argued before Ray J. that the serious issue for his consideration
    was the assertion by the Marks that the right-of-entry permit was invalid
    because it did not comply with the requirements of the right-of-entry by-law.  Ray J., at para. 35, held: I cannot find
    that the [Marks] claim is frivolous or vexatious however, and therefore
    according to the jurisprudence must move on to the second of the three tests.

[53]

Indeed, nowhere in his reasons does Ray J. make
    a finding or a ruling on the validity of the by-law.  The only issue was whether Ms. Natividad and
    Mr. Maheux should continue to be prohibited from entering on the Marks
    property.  He did not decide whether or
    not that entry was in all respects legal, nor did his decision otherwise
    legalize any entry.
[3]

[54]

To repeat, on May 28, 2007, Ray J. granted the
    Marks an
ex parte
injunction
    enjoining Ms. Natividad and Mr. Maheux from encroaching onto the Marks
    property.  Their right to enter upon the
    Marks property was pursuant to a permit issued by the City of Ottawa under its
    right-of-entry by-law, not because of any order by Ray J.  In June 2007, Ray J. ordered that the
    injunction should be lifted upon the giving of Mr. Maheux and Ms. Natividads
    undertaking that any work constructed would not result in an encroachment onto
    Marks land.

[55]

The June order of Ray J. went no further than to
    apply the rule in
R.J.R
.-
MacDonald
.  The result of this was
    simply that there would no longer be a court order preventing Ms. Natividad and
    Mr. Maheux from completing their project.  Put another way, it was not  as the motion judge found  a court order
    authorizing the respondents to proceed in a certain fashion.  Rather, it was an order removing a previous
    court-ordered impediment to their proceeding.

[56]

At para. 71 in
Garland
,
Iacobucci
    J. (writing for
the court) held that the collateral attack doctrine did
    not apply in circumstances where
orders of the Ontario Energy Board permitted Consumers Gas to charge
    its customers a criminal rate of interest in paying accounts late.  Iacobucci J. noted that where
the
    specific object of a partys action is not to invalidate or render inoperative
    a boards orders, but rather to recover money that was illegally collected by
    another partys conduct because of the boards orders, the collateral attack
    doctrine does not apply.  Similarly, here
    the Marks are not seeking to set aside or challenge the order of Ray J.;
    rather, they are seeking damages related to the alleged inappropriate actions
    of the respondents, including those actions pursuant to the City of Ottawas
    right-of-entry by-law.

[57]

The orders made by Ray J. granting the
    injunction and subsequently lifting it did not resolve the issues in the main
    action and the rulings were without prejudice to the parties relating to those
    issues.  These issues include the
    validity of the right-of-entry by-law, permits issued pursuant to it, and any
    legal remedies that might arise from the determination of validity.   I would, therefore, allow this ground of
    appeal.

Abuse of process

[58]

This second part of this issue is summarized by
    repeating the motion judges observations at para. 131:

A valid argument can also be made that the attempt of the
    plaintiffs in their amended pleadings to seek damages allegedly arising out of
    the post Ray J. decision issuance of the right-of-entry permit and the entry on
    the property is an abuse of process.  This Court, of course, possesses an
    inherent jurisdiction to prevent the misuse of its procedures in a manner that
    would bring the administration of justice into disrepute. [Citations omitted.]

[59]

The respondents arguments in this regard are
    principally based upon their view that the proposed amendments amount to a
    collateral attack on the previous orders of Ray J.  Given my decision on that issue, there is no
    abuse of process.

The effect of the motion judges decision

[60]

At para. 130 the motion judge held that:

[T]o implement my conclusions, the amended pleadings require
    substantial further amendment to remove all claims related to the respondents
    issuance of the entry permit following Ray J.s order and, as well, the entry
    on the property following that order.  At the very least, the pleading
    must make it clear that the malice alleged in paras. 57(a), (b), (c), (d), (e),
    (f), (g), (h), (i), and (j) relate to the time before Ray J. issued his
    reasons/decision on the injunction.

[61]

At the beginning of my analysis of this issue I
    set out the motion judges ultimate conclusion, which he expresses in para.
    132(c) of his reasons.  His holdings in
    these two paragraphs are reflected in the court order at para. 3.
In
the result, para.
    3 of the court order must be deleted.

DISPOSITION

[62]

For the foregoing reasons, I would dismiss the
    appeal in respect of issues one and two.  I would allow the appeal in connection with
    issue three.  Accordingly, I would set
    aside para. 3 of the motion judges order.  In all other respects, I would not disturb the order.  Given this mixed result, I would award the
    respondents their costs of the appeal fixed in the amount of $7,500, inclusive
    of disbursements and applicable taxes.

RELEASED:

APR -1 2011                                            H.S.
    LaForme J.A.

KF                                                              I
    agree K. Feldman J.A.

I
    agree R. Juriansz J.A.





[1]
Counsel
    for these respondents informed the court that as the proposed amendments at
    issue in this appeal are in respect only of claims against the City of Ottawa
    and Derek Petch, she would not be taking a position on the appeal.



[2]
I note
    that the Divisional Court has since held this power to be in the jurisdiction
    of a judge only and not that of a master:
Herzig
    v. Markham (Town)
, [2007] O.J. No. 4873 at para. 7. However, as the
    decision under appeal is that of a judge, it is unnecessary for me to comment on
    this point.



[3]

Ray Js.

remarks
in para. 33 of his
    decision might suggest that he was deciding these two issues.  However, it is clear that neither of these
    two issues was before him to decide and it is clear from reading his reasons as
    a whole that he was aware of this.


