





CITATION:
Rainbow Concrete Industries
          Limited v. Anderson, 2011 ONCA 648



DATE:  20111017



DOCKET: C53682



COURT OF APPEAL FOR ONTARIO



Doherty, Weiler and Cronk JJ.A.



BETWEEN



Rainbow Concrete Industries Limited



Plaintiff (Appellant)



and



Ian Anderson and International Union of Operating
          Engineers, Local 793



Defendants (Respondents)



Marvin J. Huberman, for the plaintiff (appellant)



Sara Blake and Kristin Smith, for the defendant (respondent),
          Anderson



Heard and released orally:
October 11, 2011



On appeal from the order of Justice B.A. Conway of the Superior
          Court of Justice, dated April 12, 2011.



ENDORSEMENT



[1]

There are essentially two issues raised on this appeal.  The first raises
    the adequacy of the pleadings and the second is concerned with whether the
    respondent is immune from suit by virtue of his position.  The latter issue
    need only be decided if the pleadings are adequate.  The motion judge did not
    decide the immunity issue.

[2]

The argument put by the plaintiff is that there are certain specific
    allegations with respect to procedural errors pleaded that could support the
    inference that the respondent acted out of malice or bad faith.  The respondent
    argues that even if those alleged procedural irregularities occurred, they
    simply do not go so far as to justify any reasonable inference of malice or bad
    faith.  The respondent argues the pleading is, therefore, inadequate.

[3]

There is also an argument that depending on the results of the pending
    judicial review applications in the Divisional Court, some or all the facts
    alleged by the plaintiff in support of malice and bad faith may become the
    subject of
issue estoppel
or
res judicata
.  The respondent argues
    that if the plaintiff is estopped from making certain allegations, then the
    pleading is manifestly inadequate and the appeal should be dismissed.

[4]

The decision in the Divisional Court is on reserve.  It would appear
    from the judicial review applications that the plaintiff has raised many, if
    not all, of the same procedural errors in those proceedings as he had advanced
    in his pleading here.

[5]

We think the prudent thing to do is to adjourn this appeal to await the
    result of the proceedings in the Divisional Court.  Whatever the Divisional
    Court decides, it may assist this court in determining whether there is any
    basis upon which the appellants pleading can survive.  It is only if the
    pleading survives that we need address the immunity submission.

[6]

The appeal will be adjourned.  When the Divisional Court has released
    its reasons, we will rely on counsel to contact a member of this panel to
    discuss the appropriate manner in which we should proceed from there.

Doherty J.A.

K.M. Weiler J.A.

E.A. Cronk J.A.


