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Appeal Court Dicta

Civil Litigation - Orders - General

. Libfeld v. Libfeld

In Libfeld v. Libfeld (Ont CA, 2023) the Court of Appeal emphasized to need for court orders to be clear:
[48] The ultimate sanction for non-compliance with a court order is a finding of contempt, which can be punishable by incarceration or other sanctions such as the imposition of a fine or community service. It also carries a heavy social stigma. The severity of these sanctions is one reason why courts have required orders to be sufficiently clear such that parties can understand what is needed to comply, and can arrange their affairs accordingly. Another reason has to do with efficiency and avoiding the allocation of court resources to resolve proceedings that could have been avoided with clearer orders: Pro Swing Inc. v. ELTA Golf Inc., 2006 SCC 52, [2006] 2 S.C.R. 612, at paras. 24, 35-36.
. Bouragba v. Ontario College of Teachers

In Bouragba v. Ontario College of Teachers (Div Court, 2023) the Divisional Court held that a withdrawal or discontinuance of a civil proceeding, made after an interlocutory order that established procedures for advancement of the case did not literally require the matter to continue - despite the earlier order:
Effect of the Court of Appeal Order

[17] Mr Bouragba argues that, in directing that the anti-SLAPP motion be remitted to the Superior Court, for a fresh hearing before a different judge, the Court of Appeal required that the anti-SLAPP motion be heard on the merits.

[18] In the ordinary course, an appellate court may order for a fresh hearing when it grants an appeal. Such an order returns the case to the court below to continue. Such an order does not foreclose the parties from settling the case, or the plaintiff from abandoning its claims. As an example, remitting a case for a new trial is a more common remedy in criminal than it is in civil cases. Such an order does not preclude the Crown from withdrawing the charges, or for the accused to entering a plea of guilty after plea-bargaining with the Crown. It is no different in a civil case where a matter is remitted for a fresh hearing.

[19] There are situations where an appellate court issues an order in the nature of mandamus, requiring a public official or decision-maker to fulfill his public obligation to attend to a matter. When these situations arise, the language of the court’s direction is clear. A routine order remitting a case back for a re-hearing is not such a situation.

[20] Mr Bouragba relies on Poffenroth Agri Ltd. v. Brown, 2020 SKCA 121, to argue that discontinuing the action is an abuse of process. This argument is misconceived. In Poffenroth the court gave directions about which of two courts should hear a jurisdiction motion. Purporting to discontinue the action in which the court had directed that the jurisdiction motion be heard was found to be an abuse of process, to defeat the court’s directions. This is not analogous to the present case. If, in the face of the court’s directions in Poffenroth, the plaintiff had decided to abandon all its claims against the defendants, with prejudice, the court’s directions respecting the proper forum for a jurisdiction motion would have been no impediment.

[21] The Master made no error in concluding that the order of the Court of Appeal directing a fresh hearing did not preclude granting leave to the plaintiff to discontinue the entire proceeding.

The Master’s Exercise of Discretion

[22] The Master correctly stated the test for granting leave to discontinue: R.23.01(1)(b); 1623242 Ontario Inc. v. Great Lakes Copper Inc., 2016 ONSC 1002, para. 47, Vitucci v. Dimakis, 2019 ONSC 6960, para. 18. The Master reasonably concluded that this case is closer to those where the case is not beyond the pleadings stage than those where the case is ready for trial. The Master identified the steps the parties would have to take to ready the case for trial if leave to discontinue was not granted. The Master concluded, reasonably, that both sides were seeking the same substantive result: dismissal of the proceeding.

[23] The Master identified potential prejudice arising from discontinuance of the proceeding and devised terms to address that potential prejudice. Discontinuance without terms would permit the plaintiff to re-commence proceedings (subject to limitations defences). Dismissal would not. Therefore, as proposed by the respondent, the Master added a term to the order precluding further litigation by the plaintiff of matters arising out of the events giving rise to the action: the court “further orders that the discontinuance shall be deemed a bar to any subsequent action(s) brought by the plaintiff arising from the same causes of action asserted in this Action.” The Master noted that Mr Bouragba would not be prejudiced respecting any claim for costs of the action because he was entitled to have this issue addressed under R.23.05(1).

[24] The Master rejected Mr Bouragba’s argument that he was entitled to have the merits of the anti-SLAPP motion determined. The Master’s assessment on this point was reasonable: the purpose of the anti-SLAPP provision is to provide for summary dismissal of certain claims, not to provide a forum to litigate those claims. If a plaintiff would prefer to abandon the litigation to defending the anti-SLAPP motion, there is no resulting “prejudice” to the defendant.


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