



COURT OF APPEAL FOR BRITISH
COLUMBIA




Citation:



Levy v. British Columbia
(Crime Victim Assistance Program),









2018 BCCA 36




Date: 20180201

Docket: CA44551

Between:

Michael Levy

Respondent

(Plaintiff)

And

The Director of
Crime Victim Assistance Program and
Her Majesty The Queen in Right of the Province of British Columbia, as
represented by the Ministry of Public Safety and Solicitor General

Appellants

(Defendants)




Before:



The Honourable Mr. Justice Willcock

The Honourable Mr. Justice Savage

The Honourable Mr. Justice Hunter




On appeal from:  An
order of the Supreme Court of British Columbia,
dated June 2, 2017 (
Levy v. British Columbia (Crime Victim Assistance
Program)
,
2017 BCSC 1455, Vancouver Registry S161147).






Counsel for the Appellants:



D.R. Suntjens

J. Van Camp







Counsel for the Respondent:



G.R. Cameron







Place and Date of Hearing:



Vancouver, British
  Columbia

January 5, 2018







Place and Date of Judgment:



Vancouver, British Columbia

February 1, 2018





Written Reasons by:





The Honourable Mr. Justice Savage





Concurred in by:





The Honourable Mr. Justice Willcock

The Honourable Mr. Justice Hunter













Summary:

The Director of the Crime
Victim Assistance Program and Mr. Levy entered into a settlement agreement
in which the Director agreed to fund his care under the Crime Victim Assistance
Act. After disagreement on the benefits to which he was entitled, Mr. Levy
sued the Director. British Columbia and the Director appeal from an order
dismissing their applications to strike Mr. Levys underlying action
saying that the pleadings disclosed no reasonable claim as it was founded on an
interpretation of a contract which is contrary to law, and the action was an
abuse of process as an impermissible collateral attack on a reviewable
determination. Held: appeal dismissed. The judge correctly held the
appellants arguments failed to establish the claim was bound to fail because
application of the anti‑fettering doctrine was not settled law, and
whether the agreement was ultra vires the legislative scheme required
appropriate factual context. The judge did not err in concluding it is not
plain and obvious at this stage that Mr. Levys claim was a collateral
attack on the directors determination rather than a breach of the directors
obligations under the settlement agreement.

Reasons
for Judgment of the Honourable Mr. Justice Savage:

Overview

[1]

The appellants, the Director of the Crime Victim Assistance Program (the
Director) and the Province of British Columbia (collectively British
Columbia), appeal from an order of Mr. Justice Grauer dismissing their
applications to strike the underlying action for (1) disclosing no
reasonable claim, or (2) constituting an abuse of process as an
impermissible collateral attack on decisions of the Director which should have
proceeded through internal and/or judicial review.

Background

[2]

In 2006, Mr. Levy, the respondent, suffered catastrophic injuries
when he was assaulted by individuals with a hatchet, rendering him
quadriplegic. He was accepted as a victim of crime by the Crime Victim
Assistance Program (CVAP), which agreed to fund his care pursuant to the
Crime
Victim Assistance Act
, S.B.C. 2001, c. 38
[
CVAA
].

[3]

Mr. Levy sued his assailants and others whose negligence he said
contributed to his injuries. The Director required him to include in his tort
claim past and future healthcare costs to be paid on his behalf by the CVAP. Mr. Levy
settled with the alleged tortfeasors in 2009.

[4]

The Director attended the settlement negotiations and entered into the
contract of settlement (the Settlement Agreement) which resulted in the
following terms germane to this appeal:

1)

The alleged tortfeasors would pay Mr. Levy $2.1 million;

2)

The alleged tortfeasors would pay the CVAP $312,000
for healthcare costs incurred to date; and

3)

The CVAP agreed to continue funding Mr. Levys
future care without seeking repayment over and above the amount of $312,000
paid for support to date.

[5]

In the underlying notice of civil claim, Mr. Levy sues the CVAP for
breach of the Settlement Agreement, claiming that the CVAP has breached the
contract by curtailing and refusing to pay for care to which he is entitled.
Specifically, he alleges that the CVAP breached the Settlement Agreement by
refusing to pay for:

1)

The incremental increased cost for attendant care
services;

2)

Increased attendant care needs as a result of Mr. Levy
living alone; and

3)

Wound care services to treat pressure sore ulcers.

[6]

Before filing its response to civil claim, British Columbia applied to
strike Mr. Levys claim pursuant to Rule 9‑5(1)(a) as
disclosing no reasonable cause of action and pursuant to Rule 9‑5(1)(d)
as an abuse of process.

Issues

[7]

I would describe the issues as follows:

1)

Did the chambers judge err in declining to strike the
pleadings pursuant to Rule 9‑5(1)(a), by failing to apply the anti‑fettering
doctrine or recognizing the agreement at issue represents an improper
contracting out of the
CVAA
?

2)

Did the chambers judge err in declining to strike the
pleadings pursuant to Rule 9‑5(1)(d) as constituting an abuse of
process?

3)

Did the chambers judge err in allowing Mr. Levy
the opportunity to amend his pleadings?

Discussion and Analysis

Standard of Review

[8]

The decision to strike pleadings is generally a discretionary decision,
attracting a deferential standard of review:
Carhoun & Sons Enterprises Ltd.
v. Canada (Attorney General)
, 2015 BCCA 163

at para. 18.
However, if there is an extricable error of law, the correctness standard of
review applies, because where the law dictates a specific outcome, there is no
discretion:
Carhoun
at paras. 19‑20.

[9]

The parties disagree with respect to the appropriate standard of review
on appeal. British Columbia submits that the decision regarding Rule 9‑5(1)(a)
involves evaluating the pleadings against the limitations of the statutory
scheme, which is an extricable question of law. British Columbia submits that,
with respect to the Rule 9‑5(1)(d) abuse of process decision, the
chambers judge considered whether the contract claim is sustainable as a
separate and distinct justiciable claim, which is also an extricable question
of law.

[10]

Mr. Levy emphasizes as discretionary the nature of the judges
decision, which is entitled to deference, and submits that there is no
extricable question of law determinative as to the outcome. As I understand his
argument, even if there is an extricable question of law under the Rule 9‑5(1)(a)
application, in circumstances where the law is unsettled, there is a discretion
to decline to answer the question posed, in the absence of a proper context.
With respect to the application under Rule 9‑5(1)(d), as that
determination requires both context and evidence, the judges decision is
entitled to deference.

Preliminary Issue: Amending Pleadings

[11]

In its factum, British Columbia submits that the judge erred in law by
permitting Mr. Levy to amend his notice of civil claim, and by concluding
amendments could save Mr. Levys claim from being struck. British Columbia
argues that even the amended notice of civil claim should be struck as it
discloses no reasonable cause of action. This argument was not discussed in any
substantive manner in oral argument, so I briefly deal with it at the outset
here.

[12]

The judge permitted the notice of civil claim to be amended
after
dismissing British Columbias motion to strike application, as it could
usefully be improved by amendment (para. 26). When considering a motion
to strike, the court may consider whether there was disclosed from
[the] pleading with such amendments as
might reasonably be made, a proper case to be tried: see
Chang Estate v.
Chang
, 2010 BCCA 111 at para. 39.

[13]

The decision to allow parties to amend pleadings is a discretionary one.
Here, the decision did not impact the order under appeal, and considering
amendments to the pleadings is consistent with the proper judicial role in
considering a motion to strike application. In my view, the judge did not err
in allowing Mr. Levy to amend his notice of civil claim.

Issue 1  No Reasonable Cause of Action

[14]

The legal test on a motion to strike application is not disputed by the
parties. Pleadings should be struck under Rule 9‑5(1)(a) only
if it is plain and obvious, assuming
the facts as pleaded to be true, that the pleading discloses no reasonable
cause of action:
Hunt v. Carey Canada Inc.
, [1990] 2 S.C.R. 959 at 978‑80;
R. v. Imperial Tobacco Canada Ltd.
, 2011 SCC 42

at para. 17.

[15]

Broadly speaking, British Columbia makes two arguments with respect to
why it is plain and obvious Mr. Levys notice of civil claim discloses no
reasonable claim. Both arguments hinge on interpreting the Settlement Agreement
as it pertains to the relationship between Mr. Levy and British Columbia
in light of the
CVAA
.

i.

Fettering Discretion

[16]

First, British Columbia submits Mr. Levys interpretation of the
Settlement Agreement would fetter the Directors discretion, contrary to law.
British Columbia submits that the Supreme Court of Canadas decision in
Pacific
National Investments Ltd. v. Victoria (City)
, 2000 SCC 64, is binding
authority for the proposition that the Directors discretion cannot be
fettered.

[17]

British Columbia also relies upon the decision of
Andrews v. Canada
(Attorney General)
, 2009 NLCA 70
[
Andrews
No. 1
],
where the
Court of Appeal upheld a successful application to strike. In that case, the
plaintiffs claimed the Minister of Fisheries and Oceans breached a contract
reducing crab quotas. In dismissing the appeal, the Court held that the
Ministers discretion to issue quotas could not be fettered directly or indirectly.

[18]

Applied to the present matter, British Columbia argues the
interpretation of the Settlement Agreement proffered by Mr. Levy would
impermissibly fetter the discretion of the Director (which is broad under the
CVAA
)
to award benefits, and therefore the notice of civil claim discloses no
reasonable cause of action.

[19]

Mr. Levy, in response, submits that his interpretation of the
Settlement Agreement does not fetter the discretion of the Director. The
Settlement Agreement does not fetter the ability of the Director to determine
whether the criteria of the statute have been satisfied, or to assess the
quantum of benefit to be awarded in any given case. He submits that the
Settlement Agreement simply reflects an acknowledgment that British Columbia
and the Director will continue to fund his care without recourse to his
settlement to pay for things they otherwise would have compensated.

[20]

Mr. Levy alternatively submits that the state of the authorities
regarding fettering discretion is not such that it is plain and obvious the
fettering doctrine bars contractual claims against the Crown. He argues that
the anti‑fettering doctrine set out in
Pacific National Investments
only applies to agreements fettering the ways in which a government may
exercise its
legislative powers
. On his reading of
Pacific National
Investments
, the anti‑fettering doctrine does not apply to business
agreements, like the Settlement Agreement at issue in the present proceeding.

[21]

In support of his interpretation of
Pacific National Investments
,
Mr. Levy relies on two Ontario decisions,
Weyerhaeuser Company Limited
v. Ontario (Attorney General)
, 2016 ONSC 4652, and
Ontario First Nations
(2008) Limited Partnership v. Aboriginal Affairs (Ontario)
, 2013 ONSC 7141.
He also cites academic criticism of an expansive reading of
Pacific National
Investments
and the anti‑fettering doctrine: Peter W. Hogg,
Patrick J. Monahan & Wade K. Wright,
Liability of the Crown
,
4th ed. (Toronto: Carswell, 2011) at 324‑31.

[22]

In the context of a motion to strike application, Mr. Levy refers
to
Andrews v. Canada (Attorney General)
, 2014 NLCA 32
[
Andrews No. 2
]
. Despite the presence of facts
substantially similar to those of
Andrews No. 1
, in
Andrews No. 2
,
the Court of Appeal held that the prior authorities, including
Pacific
National Investments
, did not mean it was plain and obvious the fettering
doctrine bars contractual claims against the Crown. In so holding, the Court
found the impact of
Pacific National Investments
in relation to the
scope of the anti‑fettering doctrine to be unclear (para. 42).

[23]

Mr. Levy also relies on
Wells v. Newfoundland
, [1999] 3
S.C.R. 199, for the proposition that while the Crown can act in breach of
contractual obligations, it is still liable for the legal consequences of doing
so. While the Crown can limit those consequences by legislatively extinguishing
the cause of action, this has not occurred in this case. He relies on the
decision in
Radusin v. British Columbia
, 2005 BCSC 373, where liability
was established for breach of contract when the Director failed to pay a lump
sum agreement made pursuant to s. 4(7) of the
CVAA
. Mr. Levy
argues this decision demonstrates that his claim is not destined to fail, as a
contractual claim against the Director has succeeded in the past.

[24]

In a motion to strike application, Mr. Levy submits, the law must
be clear beyond doubt, and in this case, the judge properly concluded the
authorities were not sufficiently settled.

ii.

Ultra Vires Legislation

[25]

In its second argument pertaining to Mr. Levys claim disclosing no
reasonable claim, British Columbia submits the claim is bound to fail because Mr. Levys
interpretation of the Settlement Agreement is
ultra vires
the
legislative scheme. British Columbia argues that Mr. Levys interpretation
would in effect represent a contracting out of the
CVAA
, a result that
is impossible in law.

[26]

British Columbia argues that the statutory scheme  and particularly
s. 9(4)(a)  expressly prevents the parties from entering into the alleged
contract because the Director is obligated to deduct settlements in determining
benefits. The Directors ability to enter into agreements pursuant to s. 22.1
of the
CVAA
does not authorize the Director to enter into agreements
inconsistent with the
CVAA
. This, British Columbia submits, distinguishes
the facts in the present matter from those in
Radusin
, where the
enforced contract complied with s. 4(7) of the
CVAA
. Therefore, no
contracting out issues were engaged.

[27]

Beyond fettering the Directors discretion, the pleaded interpretation
of the Settlement Agreement would be grossly unfair to other victims and fail
to advance the purposes of the
CVAA
.

[28]

Mr. Levy, to the contrary, submits that the purpose of the
CVAA
and the CVAP scheme and the relevant provisions of the
CVAA
support a
conclusion that the Director is entitled to enter into a Settlement Agreement
such as the one at issue here. Mr. Levy puts forth a different statutory
interpretation than the one offered by British Columbia. In his reading of the
CVAA
,
the agreement was authorized by the terms of the statute, and furthers the
purposes of the scheme.

[29]

In the result, Mr. Levy submits that contracting out principles are
not engaged because the Settlement Agreement arises from the legislation and
furthers its purpose.

iii.

Analysis

A. Law Regarding
Anti-Fettering Doctrine

[30]

British Columbia says
Pacific National Investments
clearly
establishes that the anti‑fettering doctrine was binding on the judge in
his determination of whether the pleadings should be struck. As the law is
clear on this point, British Columbia alleges an extricable error of law was
made by the judge. British Columbia says the anti‑fettering doctrine
demonstrates Mr. Levys claim is bound to fail because his interpretation
of the Settlement Agreement cannot stand alongside this doctrine.

[31]

I am not persuaded by these arguments. As Mr. Levy submits, and as
the judge found, the application of the anti‑fettering doctrine is not
settled in law. The narrow reading of
Pacific National Investments
endorsed
by Mr. Levy, limiting the doctrine to agreements fettering
legislative
discretion, has been accepted by other Canadian courts: see
Weyerhaeuser
at para. 51;
Ontario First Nations
at paras. 53‑59; and
Andrews
No. 2
at paras. 36‑42.

[32]

Courts ought to be cautious in striking out claims, particularly novel
ones that may not yet be embedded in existing legal rules, lest it stunt the
growth of the law. This does not mean that fanciful claims, or claims based on
wishful thinking, should proceed to trial. Where a claim is based on rational
argument that involves an extension, development or reasonably arguable
restriction or reversal of some existing authority, the situation may be
otherwise. In
Imperial Tobacco
, McLachlin C.J.C. said:

[19]

The power to strike out claims that have no
reasonable prospect of success is a valuable housekeeping measure essential to
effective and fair litigation. It unclutters the proceedings, weeding out the
hopeless claims and ensuring that those that have some chance of success go on
to trial
.

[20]

This promotes two goods - efficiency in the conduct
of the litigation and correct results. Striking out claims that have no
reasonable prospect of success promotes litigation efficiency, reducing time
and cost. The litigants can focus on serious claims, without devoting days and
sometimes weeks of evidence and argument to claims that are in any event
hopeless. The same applies to judges and juries, whose attention is focused
where it should be - on claims that have a reasonable chance of success. The
efficiency gained by weeding out unmeritorious claims in turn contributes to
better justice. The more the evidence and arguments are trained on the real
issues, the more likely it is that the trial process will successfully come to
grips with the parties respective positions on those issues and the merits of
the case.

[21]

Valuable as it is, the
motion to strike is a tool that must be used with care. The law is not static
and unchanging. Actions that yesterday were deemed hopeless may tomorrow
succeed
. Before
Donoghue v. Stevenson
,
[1932] A.C. 562 (H.L.)
introduced a general duty of care to ones
neighbour premised on foreseeability, few would have predicted that, absent a
contractual relationship, a bottling company could be held liable for physical
injury and emotional trauma resulting from a snail in a bottle of ginger beer.
Before
Hedley Byrne & Co. v. Heller & Partners, Ltd.
, [1963] 2 All E.R. 575 (H.L.),
a
tort action for negligent misstatement would have been regarded as incapable of
success. The history of our law reveals that often new developments in the law
first surface on motions to strike or similar preliminary motions, like the one
at issue in
Donoghue v. Stevenson.

Therefore, on a motion to strike, it is not determinative that the law
has not yet recognized the particular claim. The court must rather ask whether,
assuming the facts pleaded are true, there is a reasonable prospect that the
claim will succeed. The approach must be generous and err on the side of
permitting a novel but arguable claim to proceed to trial.

[Emphasis
added.]

[33]

In the instant case, the claim arises in respect of legislative
provisions that have not yet received appellate consideration. It arises on a
factual matrix that is not fully articulated or robust. It arises in the
context of a decision based on a doctrine which has been the subject of
negative academic commentary and confined in its application. In those
circumstances, I see no error in the judges decision that:

[22]
On
this state of the law, I conclude that it cannot be said that the claim is
bound to fail. Whether the law dictates a dismissal of this claim should
properly be decided on the basis of full pleadings and an evidentiary record as
was the case in
Andrews No. 2
.

B. Contracting Out

[34]

I turn to British Columbias arguments pertaining to contracting out of
the scheme of the
CVAA
. In my view, the arguments on this point focus
upon

the statutory scheme without appropriate engagement with the terms
of the Settlement Agreement. The problem with British Columbia structuring its
arguments in this manner is that it overlooks the underlying nature of Mr. Levys
claim: a breach of contract.

[35]

While the legislative framework necessarily factors into the contractual
interpretation issue at the heart of Mr. Levys claim, both contractual
interpretation
and
statutory interpretation must be considered in
determining whether it is plain and obvious that Mr. Levys claim
discloses no reasonable cause of action.

[36]

The nexus of contractual and statutory interpretation engaged by British
Columbias contracting out argument does not, in my view, point
at this
stage
to a clearly extricable question of law. Rather, as the judge said:

[12]
As
to contractual interpretation, it is my view that a definitive interpretation
cannot sensibly be made without having recourse to evidence, particularly in
relation to the surrounding circumstances
. For instance, it may be that the
value of Mr. Levys tort claim was significantly higher than $2,100,000
and that it was necessary to compromise the claim (being not only the plaintiffs
claim but also the CVAPs claim) given the resources of the defendants and
insurance coverage issues. In this regard, the approach taken by the plaintiff,
the defendants, and the Director may well be relevant to how one interprets the
contract.

[13]
British
Columbia objects that the materials relating to the mediation are privileged. Without
deciding that point, I am not convinced that that necessarily flows in this
case, where the claim seeks to enforce the settlement agreement that was
allegedly reached. But even if it does, affidavit evidence from Mr. Levy
as to the circumstances surrounding his claim and his agreement to settle may
be admissible, relevant and probative of how the agreement is to be interpreted.
That cannot be decided here.

[Emphasis added.]

I am not persuaded that there is any error in the judge so
reasoning.

[37]

In general, the question of whether a pleading discloses a reasonable
cause of action under Rule 9‑5(1)(a) is an extricable issue for
which no deference need be accorded the chambers judge. As I have said, where
there is an extricable question of law
where the law is unsettled
, a
judge should be cautious in striking a claim at this stage. I find it
unnecessary to characterize the standard applicable to this Courts review of
the judges discretion in these circumstances, as I agree with his conclusion.
However, I would observe that this Court is in the same position as the
chambers judge in determining whether the state of the law is unsettled.

[38]

That said, on both contractual interpretation arguments offered by
British Columbia, I am of the opinion that the judge was correct in holding it
was not plain and obvious the claim was bound to fail. Both the state of the
law regarding the applicability of the anti‑fettering doctrine in this
context, as well as the nexus of statutory interpretation and contractual
interpretation, lead me to conclude that it is correct in law not to strike the
claim, absent a proper evidentiary record, at this stage.

Issue 2  Abuse of Process

i.

Submissions of the Parties

[39]

British Columbia submits Mr. Levys claim constitutes an abuse of
process because it is in actuality a collateral attack on the Directors
decisions, and recourse should be sought through judicial review, not an
artfully pleaded contract claim.

[40]

British Columbia cites the Supreme Court of Canadas decision in
Boucher
v. Stelco Inc.
, 2005 SCC 64. It attempts to distinguish the case at bar
from
Canada (Attorney General) v. TeleZone Inc.
, 2010 SCC 62, in which
the Supreme Court of Canada dismissed the argument that judicial review needed
to be sought before pursuing claims for breach of contract, negligence and
unjust enrichment in the provincial superior courts.

[41]

In so doing, British Columbia emphasizes the privative clause found in
the
CVAA
. This privative clause, it says, is similar to one found in
s. 96(1) of the
Workers Compensation Act
, R.S.B.C. 1996, c. 492,
and to that end, cites a body of case law interpreting and applying that
privative clause. Ultimately, British Columbia argues Mr. Levy is
attempting to use artful pleadings as a thin pretense to establish a private
wrong in order to launch a collateral attack on administrative decisions, and
therefore his claim should be struck as an abuse of process.

[42]

Mr. Levy submits British Columbias cited case law is not relevant.
Rather, the governing authority is
TeleZone
, as well as this Courts
decision in
Camp Development Corporation v. Greater Vancouver Transportation
Authority
, 2010 BCCA 284.

[43]

Mr. Levy agrees with British Columbias submission that the
collateral attack doctrine prevents a party from using an institutional detour
to attack the validity of an order. However, he submits that he does not impugn
the validity of the Directors decision, but rather argues that the decisions
made by the Director demonstrate a private law wrong committed by the Director:
breach of the Settlement Agreement.

[44]

He therefore says that, as in
TeleZone
, the litigation should be
permitted to proceed, as he has more than an arguable case and it cannot be
said it is plain and obvious that the claim pleaded is an abuse of process.

ii.

Analysis

[45]

The facts of
TeleZone
involved a statement provided by Industry
Canada in the context of a call for personal communication services licenses.
In this statement, Industry Canada indicated that up to six licenses would be
granted. Ultimately, when Industry Canada announced its decision, only four
licenses were awarded.

[46]

TeleZone, which did not obtain a license, commenced a civil action
seeking damages for breach of contract, negligence and unjust enrichment. The
Attorney General of Canada challenged the jurisdiction of the provincial
superior courts to hear the action, arguing that TeleZones action was actually
a collateral attack on the decision, which properly should have been brought by
way of judicial review to the Federal Court.

[47]

The Supreme Court of Canada ultimately held TeleZone was entitled to
bring its action in provincial superior court because its claim disclosed a
private law action and TeleZones claim did not attempt to invalidate or render
inoperative the Ministers decision.

[48]

British Columbia submits the current claim can be characterized as an
action seeking to vary the order made by the Director, through an artful
pleading that is more properly addressed through judicial review with only a
thin pretense to establishing a private wrong:
TeleZone
at paras. 60, 78.
I would agree with British Columbia to this extent: there is a substantial
practical overlap between increased benefits pursuant to the
CVAA
and
the damage award Mr. Levy seeks.

[49]

If the question is asked, in Binnie J.s words in
TeleZone
,
[w]hat is the practical benefit to a litigant who wants compensation rather
than a reversal of government decision (para. 27), it is arguably unclear
whether or not there is any practical benefit to bringing the action by way of
a civil claim instead of through judicial review. Moreover, unlike in
TeleZone
,
which operated within a statutory scheme directing appeals from ministerial
decisions to the Federal Court, the legislative scheme operative here  the
CVAA
 describes a clear process for judicial review with a strong privative clause.

[50]

On the other hand, as Mr. Levy submits, the claim may be
characterized as disclosing a private cause of action, a valid action for
damages that he should be entitled to pursue:
TeleZone
at para. 76.
Mr. Levy submits he is not challenging the validity of the Directors
decision, but rather is using the decision to demonstrate a private law wrong,
the breach of contract. Moreover, the Supreme Court of Canada indicated the
defence of statutory authority may be raised by the government body in the
damages action itself as a defence. Such an argument would function as a
defence to the civil claim and does not go to jurisdiction:
TeleZone
at para. 69.

[51]

In my view, there is at least an arguable case that Mr. Levys
civil action is with merit. At the very least, on my reading of
TeleZone
,
it is not plain and obvious his claim discloses no reasonable cause of action.
Therefore, I am not persuaded that there was any error of law made by the
judge. He considered the submissions of both the parties, and was persuaded by Mr. Levys
characterization, holding:

[24]
Mr. Levy does not challenge the Directors decisions or seek a review of
them. He does not suggest that those decisions were not open to the Director
under the
Act
. What he does say is that those decisions were in breach
of the Directors obligations under the settlement agreement, not that they
were
ultra vires
the
Act
. On the face of the pleadings, he
pursues what is essentially a private wrong seeking specific performance and
damages.
Consequently, at this stage, I do not see this as a case where Mr. Levy
could accomplish what he seeks to achieve through judicial review
; see
Canada
(Attorney General) v TeleZone Inc.
, 2010 SCC 62.

[Emphasis
added.]

[52]

I see no error in the judges reasoning on this point. The decision to
strike pleadings based on an abuse of process is a discretionary one entitled
to deference. It cannot be said that it was plain and obvious
at this stage
that Mr. Levys claim was bound to fail.

Conclusion

[53]

In the result, I am of the opinion that the appeal should be dismissed,
for these reasons, and for substantially the reasons of the judge below.

The
Honourable Mr. Justice Savage

I agree:

The Honourable Mr. Justice
Willcock

I agree:

The Honourable Mr. Justice Hunter


