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Civil Litigation - Irregularities. Buduchnist Credit Union Limited v. 2321197 Ontario Inc.
In Buduchnist Credit Union Limited v. 2321197 Ontario Inc. (Ont CA, 2022) the Court of Appeal considered the abolition of the doctrine of 'nullity':[24] Notwithstanding this, I cannot give effect to BCU’s request for a declaration that TC’s appeal is a nullity that does not stay the final distribution order, nor would I be inclined to do so if I could. First, BCU cites no authority for the proposition that a late-filed appeal is a nullity, and as Lauwers J.A. commented in Ilic. v. Ducharme Fox LLP, 2022 ONCA 463, at para. 22, “It is time to put the doctrine of nullity out of its misery in relation to civil procedure because it is “difficult to reconcile with modern principles of civil procedure””, citing Lawrence v. International Brotherhood of Electrical Workers (IBEW) Local 773, 2017 ONCA 321, 138 O.R. (3d) 129, at para. 21, per Sharpe J.A., aff’d, 2018 SCC 11, [2018] 1 S.C.R. 267. The implications of non-compliance with a procedural rule should turn on prejudice and broader interests of justice, and not simply the formality of compliance. In this case, BCU has not experienced material prejudice from TC’s late filing. The final distribution was already long-delayed. The receiver was appointed on November 13, 2018, and the final Receivership Order was made on January 17, 2019. BCU did not move for distribution of the proceeds until March 31, 2022. I understand that there are explanations for that delay. The point is that the delays by TC in filing its NOA and even its SNOA have not played a concerning role in postponing the distribution. . Ilic v. Ducharme Fox LLP (Ducharme Weber LLP)
In Ilic v. Ducharme Fox LLP (Ducharme Weber LLP) (Ont CA, 2022) the Court of Appeal abolished the doctrine of nullity in respect of Ontario civil procedure and procedural irregularities [RCP 2.01]:(2) The Doctrine of Nullity
[22] It is time to put the doctrine of nullity out of its misery in relation to civil procedure because it “is difficult to reconcile with modern principles of civil procedure”: Lawrence v. International Brotherhood of Electrical Workers (IBEW) Local 773, 2017 ONCA 321, 138 O.R. (3d) 129, at para. 21, per Sharpe J.A., aff’d, 2018 SCC 11, [2018] 1 S.C.R. 267.
[23] Professor Garry Watson noted that: “The purpose of rule 2.01 of the Rules of Civil Procedure is, quite simply, to abolish the concept of a nullity in the Rules and to provide as much relief as possible from procedural defects…”.[1] Sharpe J.A. took the same approach in Lawrence, at para. 21: “[t]reating procedural flaws or defects as fatal nullities, incapable of amendment” is “inconsistent” with the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.” He quoted r. 2.01(1)(a), which states that “[a] failure to comply with these rules is an irregularity and does not render a proceeding or a step, document or order in a proceeding a nullity, and the court, may grant all necessary amendments or other relief, on such terms as are just, to secure the just determination of the real matters in dispute” (emphasis added).
[24] In Lawrence, Sharpe J.A. quoted with approval the reasons of Kerans J.A. in Bridgeland Riverside Community Assn. v. Calgary (City), 1982 ABCA 138, 37 A.R. 26, which noted, at paras. 27-28: “[N]o concept is more sterile than that which says that a proceeding is a nullity for failure of compliance with a procedural rule and without regard to the effect of the failure”. Kerans J.A. added: “[N]o defect should vitiate a proceeding unless, as a result of it, some real possibility of prejudice to the attacking party is shown, or unless the procedure was so dramatically devoid of the appearance of fairness that the administration of justice is brought into disrepute”. I cannot improve on this language, so I repeat it.
[25] The principles that support the elimination of the concept of nullity from the interpretation and application of the Rules of Civil Procedure apply with necessary modification to the law governing the assessment of solicitor’s accounts under the Solicitors Act.
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