Garland v. Consumers' Gas Co., (2001) 152 O.A.C. 244 (CA)

• Judge: McMurtry, C.J.O., Borins and MacPherson, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 03, 2001
• Jurisdiction: Ontario
• Citations: (2001), 152 O.A.C. 244 (CA)

Garland v. Consumers' Gas Co. (2001), 152 O.A.C. 244 (CA)

MLB headnote and full text

Temp. Cite: [2001] O.A.C. TBEd. DE.007

Gordon Garland (plaintiff/appellant) v. The Consumers' Gas Company Limited (defendant/respondent) and Toronto Hydro-Electric System Limited (intervener)

(C34248)

Indexed As: Garland v. Consumers' Gas Co.

Ontario Court of Appeal

McMurtry, C.J.O., Borins and  MacPherson, JJ.A.

December 3, 2001.

Summary:

The plaintiff commenced an intended class action against Consumers' Gas Co., seeking restitution for late payment penalties paid by customers since 1981. The plaintiff claimed that the payments, depending upon when they were made, could constitute payment of a criminal rate of interest contrary to s. 347 of the Criminal Code. Both the plaintiff and Consumers' Gas sought summary judgment. The parties sought a determination of the threshold question of whether s. 347 applied to the late payment penalties levied by Consumers' Gas.

The Ontario Court (General Division), in a judgment reported at 22 O.R.(3d) 451, held that the late payment penalties could not give rise to an offence under s. 347 because the payment of the penalty at a criminal rate of interest turned on the voluntary conduct of the customer. The court granted Consumers' Gas summary judgment dismissing the action. The plaintiff appealed.

The Ontario Court of Appeal, in a judgment reported 93 O.A.C. 155, dismissed the appeal. The plaintiff appealed.

The Supreme Court of Canada, Bastarache, J., dissenting, in a decision reported at 231 N.R. 1; 114 O.A.C. 1, allowed the appeal. The court held that s. 347(1)(b) applied to the late payment penalties. The court set aside the summary judgment and remitted the matter to the Ontario Court (General Division) (now the Ontario Superior Court).

The parties brought cross-motions for summary judgment. Consumers' Gas argued that: (1) the late payment penalty plan was being operated pursuant to an order of the Ontario Energy Board and, accordingly, s. 18 of the previous Ontario Energy Board Act (now s. 25) provided a complete defence to the plaintiff's claims; (2) pursuant to the "regulated industries defence", s. 347 of the Code could not apply to late payment charges imposed and collected pursuant to orders issued by an administrative tribunal under a valid regulatory scheme; and (3) the plaintiff's claim was an improper collateral attack on the orders made by the Ontario Energy Board which had approved the late payment penalties. The intervenor, Toronto Hydro, submitted that the receipt of late payment charges by Consumers' Gas did not violate s. 347(1) of the Code by virtue of s. 15 of the Criminal Code (act or omission in obedience of the laws made and enforced by persons in de facto possession of the sovereign power).

The Ontario Superior Court, in a decision reported at [2000] O.T.C. 266, granted Consumers' Gas's motion and dismissed the plaintiff's action. The court held that neither the "regulated industries defence" nor s. 15 of the Criminal Code provided Consumers' Gas with a defence. However, the court held that: (1) the plaintiff's claim was an impermissible collateral attack on the orders of the Ontario Energy Board; (2) s. 18 (now s. 25) of the Ontario Energy Board Act provided Consumers' Gas with a complete defence to the action; and (3) the plaintiff's claim for restitution could not succeed because the Ontario Energy Board orders represented a valid juristic reason for the demand and receipt of the late payment penalties. In a decision on costs, the court awarded Consumers' Gas costs on a party and party basis. The plaintiff appealed from the decision dismissing the action. He also sought leave to appeal from the decision on costs.

The Ontario Court of Appeal, Borins, J.A., dissenting, dismissed the plaintiff's appeal from the dismissal of the action. The court did not agree with the motions judge that the plaintiff's action was a collateral attack on the Ontario Energy Board's orders or that s. 18 (now s. 25) of the Ontario Energy Board Act constituted a bar to the action. However, the court held that the plaintiff's claim for restitutionary relief based on unjust enrichment could not succeed because two of the elements of unjust enrichment had not been established. The court granted the plaintiff leave to appeal from the costs order and allowed the appeal, stating that this was not an appropriate case for costs.

Administrative Law - Topic 574

The hearing and decision - Decisions of the tribunal - Collateral attack - The plaintiff commenced an intended class action against Consumers' Gas Co., seeking restitution for late payment penalties (LPPs) paid by customers since 1981 - The basis for the action was that the LPPs constituted payment of a criminal rate of interest contrary to s. 347 of the Criminal Code - Consumers' Gas had collected the LPPs in compliance with rate orders of the Ontario Energy Board (OEB) - A motions judge dismissed the action holding, inter alia, that the plaintiff's claim was an impermissible collateral attack on the OEB's rate orders - The motions judge held that the courts had no jurisdiction to entertain the plaintiff's claim because the legislature had given exclusive jurisdiction over rates, including LPPs, to the OEB - The Ontario Court of Appeal disagreed with the motions judge - The court held that the proposed class action was not a collateral attack on the OEB's orders, but rather was a claim for unjust enrichment over which the court had jurisdiction - See paragraphs 25 to 34.

Constitutional Law - Topic 3504

Paramountcy of federal statutes - Requirement of conflict or repugnancy - [See Constitutional Law - Topic 3614 ].

Constitutional Law - Topic 3614

Paramountcy of federal statutes - Overlapping legislation - Conflict - What constitutes - The plaintiff commenced an intended class action against Consumers' Gas Co., seeking restitution for late payment penalties (LPPs) paid by customers since 1981 - The basis for the action was that the LPPs constituted payment of a criminal rate of interest contrary to s. 347 of the Criminal Code - Consumers' Gas had collected the LPPs in compliance with orders of the Ontario Energy Board (OEB) - Section 18 of the former Ontario Energy Board Act (OEBA) (now s. 25) provided that an order of the Ontario Energy Board was a defence to a proceeding against a person who acted in accordance with an OEB order - The plaintiff argued that even if the legislature intended s. 25 to bar civil claims based on a contravention of the Criminal Code, the paramountcy doctrine would render s. 25 ineffective - The Ontario Court of Appeal stated that "in the civil context, s. 25 of the OEBA does not have the effect of legalizing the receipt of interest at a criminal rate, but only speaks to the scope of civil proceedings that may be commenced in relation to a Board order. There is no operational inconsistency between the two provisions" - See paragraphs 49 to 51.

Criminal Law - Topic 223

Statutory defences or exceptions - Act authorized by provincial regulatory statute (regulated industries defence) - The plaintiff commenced an intended class action against Consumers' Gas Co., seeking restitution for late payment penalties (LPPs) paid by customers since 1981 - The basis for the action was that the LPPs constituted payment of a criminal rate of interest contrary to s. 347 of the Criminal Code - The LPPs had been collected by Consumers' Gas in compliance with orders of the Ontario Energy Board - The Ontario Court of Appeal held that the "regulated industries" defence did not provide a defence to the claim - The court stated that "[t]he regulated industries cases do not deal with a situation where a provincial regulatory authority made an order which results in a private company acting in a way that violates the Criminal Code. Accordingly, these cases are of no assistance to Consumers' Gas" - See paragraphs 56 to 57.

Criminal Law - Topic 227

Statutory defences or exceptions - Obedience to de facto law (s. 15) - The plaintiff commenced an intended class action against Consumers' Gas Co., seeking restitution for late payment penalties (LPPs) paid by customers since 1981 - The basis for the action was that the LPPs constituted payment of a criminal rate of interest contrary to s. 347 of the Criminal Code - An argument was made that as the LPPs were collected by Consumers' Gas in compliance with orders of the Ontario Energy Board, its conduct was not illegal in light of s. 15 of the Criminal Code - Section 15 provided that "[n]o person shall be convicted of an offence in respect of an act or omission in obedience to the laws for the time being made and enforced by persons in de facto possession of the sovereign power in and over the place where the act or omission occurs" - The Ontario Court of Appeal held that s. 15 was of no assistance to Consumers' Gas - The court stated that the defence was largely irrelevant in modern times - See paragraphs 52 to 55.

Criminal Law - Topic 1741

Offences against property - Criminal interest rate - General - [See Constitutional Law - Topic 3614 , Criminal Law - Topic 223 and third Public Utilities - Topic 14 ].

Practice - Topic 3377

Interim proceedings - Preservation of property - When order for preservation of property available - The plaintiff commenced an intended class action against Consumers' Gas Co., seeking restitution for late payment penalties (LPPs) paid by customers since 1981 - The plaintiff had also sought an interim preservation order directing Consumers' Gas to hold all LPPs it received pending resolution of the action, but with a right to use those sums for business purposes in the interim - The Ontario Court of Appeal stated that its finding that there was no basis for ordering Consumers' Gas to make restitution of the LPPs made it unnecessary for it to deal at any length with the request for a preservation order since its finding applied to LPPs collected both before and after the action was commenced - In addition, the court would have refused to grant the preservation order sought because it would serve no practical purpose considering that it would have given Consumers' Gas the right to spend the monies at stake - See paragraphs 71 to 74.

Practice - Topic 5374

Dismissal of action - Grounds - General and want of prosecution - Collateral attack on administrative decision - [See Administrative Law - Topic 574 ].

Practice - Topic 6270

Judgments and orders - Administrative orders - Collateral attack - [See Administrative Law - Topic 574 ].

Practice - Topic 7024

Costs - Party and party costs - Entitlement to party and party costs - Successful party - Exceptions - General - [See Practice - Topic 7053.1 ].

Practice - Topic 7029

Costs - Party and party costs - Entitlement to party and party costs - Successful party - Exceptions - Novel or important point - [See Practice - Topic 7053.1 ].

Practice - Topic 7053.1

Costs - Party and party costs - Entitlement to party and party costs - Class actions - The plaintiff commenced an intended class action against Consumers' Gas Co., seeking restitution for late payment penalties (LPPs) paid by customers since 1981 on the basis that the LPPs constituted payment of a criminal rate of interest contrary to s. 347 of the Criminal Code - The determination of a threshold question of whether s. 347 applied was ultimately appealed to the Supreme Court of Canada, which ruled that s. 347(1)(b) applied to the LPPs - A motions judge dismissed the plaintiff's action on the ground, inter alia, that the claim for restitutionary relief could not succeed - The motions judge awarded party and party costs to Consumers' Gas - The Ontario Court of Appeal dismissed the plaintiff's appeal from the dismissal of the action, but allowed the plaintiff's appeal from the costs order stating that this was not an appropriate case for costs - The court considered that: (1) the costs order would require the plaintiff, who was successful on the appeal to the Supreme Court of Canada, to pay the costs of that appeal; (2) although Consumers' Gas was ultimately successful, it was unsuccessful on two defences raised in the court below and three defences pressed on appeal; and (3) the proceedings involved novel issues - See paragraphs 80 to 84.

Public Utilities - Topic 14

Liability of - Defences - Obedience to board order - [See Constitutional Law - Topic 3614 ].

Public Utilities - Topic 14

Liability of - Defences - Obedience to board order - Section 18 of the former Ontario Energy Board Act (now s. 25) provided that an order of the Ontario Energy Board (OEB) was a defence to any proceeding against a person in so far as the act or omission that was the subject of the proceeding was in accordance with the order - An intended class action was brought against Consumers' Gas Co. for restitution for late payment penalties (LLPs) paid by customers since 1981 - The LPPs had been collected by Consumers' Gas in compliance with orders of the OEB - The Ontario Court of Appeal held that it did not follow that because Consumers' Gas may not have strictly complied with the OEB's orders, it was not entitled to rely on s. 18 for the instances when it did comply - However, the court found that s. 18 did not provide a defence in this case for other reasons - See paragraph 38 to 42.

Public Utilities - Topic 14

Liability of - Defences - Obedience to board order - The plaintiff commenced an intended class action against Consumers' Gas Co., seeking restitution for late payment penalties (LPPs) paid by customers since 1981 - The basis for the action was that the LPPs constituted payment of a criminal rate of interest contrary to s. 347 of the Criminal Code - The Supreme Court of Canada had ruled that s. 347(1)(b) applied to the LPPs - A motions judge dismissed the action, holding, inter alia, that s. 18 of the former Ontario Energy Board Act (now s. 25) barred the action because Consumers' Gas had collected the LPPs in compliance with orders of the Ontario Energy Board (OEB) - The Ontario Court of Appeal disagreed with the motions judge - The court stated that while the wording of s. 18 was very broad, it was not willing to interpret it as providing a defence to an action for restitution arising from an OEB order authorizing conduct that was contrary to the Criminal Code - See paragraphs 35 to 51.

Public Utilities - Topic 4404

Public utility commissions - General - Jurisdiction - [See Administrative Law - Topic 574 ].

Public Utilities - Topic 4679

Public utility commissions - Regulation - Rates - Interest (incl. late charges) - [See Administrative Law - Topic 574 , Restitution - Topic 64 and Restitution - Topic 65 ].

Restitution - Topic 64

Unjust enrichment - General - Juristic reason for enrichment - The plaintiff commenced an intended class action against Consumers' Gas Co., seeking restitution for late payment penalties (LPPs) paid by customers since 1981 - The basis for the action was that the LPPs constituted payment of a criminal rate of interest contrary to s. 347 of the Criminal Code - The Ontario Court of Appeal held that even if the LPPs constituted an enrichment, considerations of public policy arising from Consumers' Gas's position as a regulated utility company led it to conclude that there was a juristic reason for the enrichment - The court considered that it would not be fair to require Consumers' Gas to repay the LPPs received since 1981, which the Ontario Energy Board ordered it to collect and which were taken into account by the Board in making its rate orders - The costs implications of repayment would also affect all Consumers' Gas customers - See paragraphs 67 to 71.

Restitution - Topic 65

Unjust enrichment - What constitutes enrichment - The plaintiff commenced an intended class action against Consumers' Gas Co., seeking restitution for late payment penalties (LPPs) paid by customers since 1981 - The basis for the action was that the LPPs constituted payment of a criminal rate of interest contrary to s. 347 of the Criminal Code - The Ontario Court of Appeal held that receipt of the LPPs did not confer a benefit on Consumers' Gas and thus could not support a finding of enrichment - The court considered that if a lower amount of revenue had been recovered through the LPPs, then the amount to be recovered by Consumers' Gas in its other rates would have been higher - Therefore, the enrichment that followed from receipt of the LPPs was passed on to all Consumers' Gas customers in the form of lower gas delivery rates - See paragraphs 62 to 66.

Cases Noticed:

Nelson v. C.T.C. Mortgage Corp., [1986] 1 S.C.R. 749; 67 N.R. 161, affing. (1984), 67 N.R. 162; 16 D.L.R.(4th) 139 (B.C.C.A.), refd to. [paras. 18, 131].

R. v. Consolidated Maybrun Mines Ltd. et al., [1998] 1 S.C.R. 706; 225 N.R. 41; 108 O.A.C. 161, dist. [para. 29].

R. v. Klippert (Al) Ltd., [1998] 1 S.C.R. 737; 225 N.R. 107; 216 A.R. 1; 175 W.A.C. 1, dist. [para. 29].

Sprint Canada Inc. et al. v. Bell Canada et al. (1997), 48 O.T.C. 4; 79 C.P.R.(3d) 31 (Gen. Div.), affd. (1999), 116 O.A.C. 297 (C.A.), dist. [para. 31].

Union Gas Ltd. v. Dawn (Township) (1977), 2 M.P.L.R. 23; 15 O.R.(2d) 722 (Div. Ct.), refd to. [para. 44].

Berardinelli v. Ontario Housing Corp. et al., [1979] 1 S.C.R. 275; 23 N.R. 298; 90 D.L.R.(3d) 481, refd to. [para. 46].

Ukrainian (Fort William) Credit Union Ltd. (Liquidation) v. Nesbitt, Burns Ltd. et al. (1997), 104 O.A.C. 273; 36 O.R.(3d) 311 (C.A.), leave to appeal granted [1998] 1 S.C.R. vii; 228 N.R. 97; 111 O.A.C. 198, refd to. [para. 47].

Multiple Access Ltd. v. McCutcheon et al., [1982] 2 S.C.R. 161; 44 N.R. 181; 138 D.L.R.(3d) 1; 18 B.L.R. 138, refd to. [para. 49].

Jabour v. Law Society of British Columbia et al., [1982] 2 S.C.R. 307; 43 N.R. 451, refd to. [para. 56].

Canada (Attorney General) v. Law Society of British Columbia - see Jabour v. Law Society of British Columbia et al.

Reference Re Farm Products Marketing Act (Ont.), [1957] S.C.R. 198, refd to. [para. 56].

Ontario Boys' Wear Ltd. v. Ontario (Advisory Committee), [1944] S.C.R. 349, refd to. [para. 56].

R. v. Cherry, [1938] 1 D.L.R. 156 (Sask. C.A.), refd to. [para. 56].

R. v. Chung Chuck, [1929] 1 D.L.R. 756 (B.C.C.A.), refd to. [para. 56].

Industrial Milk Producers Association et al. v. Milk Board (B.C.), [1989] 1 F.C. 463; 18 F.T.R. 147 (T.D.), refd to. [para. 56].

R. v. Simoneau, [1936] 1 D.L.R. 143 (Que. Ct. Sess. P.), refd to. [para. 56].

Peter v. Beblow, [1993] 1 S.C.R. 980; 150 N.R. 1; 23 B.C.A.C. 81; 39 W.A.C. 81; [1993] 3 W.W.R. 337; 101 D.L.R.(4th) 621; 77 B.C.L.R.(2d) 1; 48 E.T.R. 1; 44 R.F.L.(3d) 329, refd to. [paras. 58, 114].

Peel (Regional Municipality) v. Ontario, [1992] 3 S.C.R. 762; 144 N.R. 1; 59 O.A.C. 81; 98 D.L.R.(4th) 140; 12 M.P.L.R.(2d) 229, refd to. [paras. 62, 105].

Kiriri Cotton Co. v. Dewani, [1960] A.C. 192 (P.C.), refd to. [para. 67].

Holman v. Johnson (1775), 98 E.R. 1120, refd to. [para. 67].

Amax Potash Ltd. et al. v. Saskatchewan, [1977] 2 S.C.R. 576; 11 N.R. 222, refd to. [para. 74].

Aguonie v. Galion Solid Waste Material Inc. et al. (1998), 107 O.A.C. 114; 38 O.R.(3d) 161 (C.A.), refd to. [para. 93].

Kilpatrick v. Peterborough Civic Hospital (1999), 119 O.A.C. 160; 174 D.L.R.(4th) 435 (C.A.), dist. [para. 95].

Chippewas of Sarnia Band v. Canada (Attorney General) (2000), 139 O.A.C. 201; 51 O.R.(3d) 641 (C.A.), leave to appeal denied [2001] S.C.C.A. No. 63, refd to. [para. 95].

Cronk v. Canadian General Insurance Co. (1995), 85 O.A.C. 54; 25 O.R.(3d) 505 (C.A.), refd to. [para. 95].

Bossé v. Mastercraft Group Inc. et al. (1995), 80 O.A.C. 185; 123 D.L.R.(4th) 161 (C.A.), refd to. [para. 96].

K.V.P. v. T.E. (2001), 275 N.R. 52; 156 B.C.A.C. 161; 255 W.A.C. 161 (S.C.C.), refd to. [para. 97].

Hickey v. Hickey, [1999] 2 S.C.R. 518; 240 N.R. 312; 138 Man.R.(2d) 40; 202 W.A.C. 40, refd to. [para. 97].

Equity Waste Management of Canada et al. v. Halton Hills (Town) (1997), 103 O.A.C. 324; 35 O.R.(3d) 321 (C.A.), refd to. [para. 99].

Western Canadian Shopping Centres Inc. et al. v. Dutton et al. (2001), 272 N.R. 135; 286 A.R. 201; 253 W.A.C. 201; 201 D.L.R.(4th) 385 (S.C.C.), refd to. [para. 102].

Becker v. Pettkus, [1980] 2 S.C.R. 834; 34 N.R. 384; 19 R.F.L.(2d) 165; 8 E.T.R. 237; 117 D.L.R.(3d) 257, refd to. [para. 103].

Sorochan v. Sorochan, [1986] 2 S.C.R. 38; 69 N.R. 81; 74 A.R. 67; 2 R.F.L.(3d) 225; [1986] 5 W.W.R. 289; 46 Alta. L.R.(2d) 97; 29 D.L.R.(4th) 1; 23 E.T.R. 143, refd to. [para. 104].

Campbell et al. v. Campbell (1999), 119 O.A.C. 30; 173 D.L.R.(4th) 270 (C.A.), refd to. [para. 113].

Lipkin v. Karpnale Ltd., [1991] 2 A.C. 548; 127 N.R. 380 (H.L.), refd to. [para. 119].

Mobile Oil Canada Ltd. v. Storthoaks (Rural Municipality), [1976] 2 S.C.R. 147; 5 N.R. 23; [1975] 4 W.W.R. 591, refd to. [para. 121].

Air Canada v. British Columbia, [1989] 1 S.C.R. 1161; 95 N.R. 1; 36 B.C.L.R.(2d) 145, refd to. [para. 126].

Transport North American Express Inc. v. New Solutions Financial Corp., [2001] O.T.C. 397; 200 D.L.R.(4th) 560 (Sup. Ct.), refd to. [para. 130].

Thomson (William E.) Associates Inc. v. Carpenter (1989), 34 O.A.C. 365; 61 D.L.R.(4th) 1 (C.A.), leave to appeal denied (1990), 105 N.R. 397; 37 O.A.C. 398; 65 D.L.R.(4th) viii (S.C.C.), refd to. [para. 132].

Milani v. Banks (1997), 98 O.A.C. 322; 32 O.R.(3d) 557 (C.A.), refd to. [para. 139].

Trillium Computer Resources Inc. v. Taiwan Connection Inc. (1994), 11 B.L.R.(2d) 1 (Ont. Div. Ct.), refd to. [para. 139].

Horvat et al. v. Artell Developments Ltd. (1992), 57 O.A.C. 189; 93 D.L.R.(4th) 334 (C.A.), affd. [1993] 2 S.C.R. 443; 153 N.R. 238; 64 O.A.C. 161, refd to. [para. 140].

Demeter v. Dominion Life Assurance Co. (1982), 35 O.R.(2d) 560 (C.A.), refd to. [para. 144].

M & D Farm Ltd. et al. v. Manitoba Agricultural Credit Corp., [1999] 2 S.C.R. 961; 245 N.R. 165; 138 Man.R.(2d) 161; 202 W.A.C. 161, refd to. [para. 149].

Law Society of British Columbia v. Mangat (2001), 276 N.R. 339; 157 B.C.A.C. 161; 256 W.A.C. 161 (S.C.C.), refd to. [para. 149].

R. v. Jorgensen (R.) et al., [1995] 4 S.C.R. 55; 189 N.R. 1; 87 O.A.C. 1; 102 C.C.C.(3d) 97, refd to. [para. 149].

Pavey & Matthews Pty. v. Paul (1987), 69 A.L.R. 577 (High Ct.), refd to. [para. 151].

Central Guaranty Trust Co. v. Dixdale Mortgage Investment Corp. et al. (1994), 77 O.A.C. 253; 121 D.L.R.(4th) 53 (C.A.), refd to. [para. 151].

Safeway Shouldering Ltd. v. Nackawic (Town) (2001), 234 N.B.R.(2d) 356; 604 A.P.R. 356; 196 D.L.R.(4th) 659 (C.A.), refd to. [para. 151].

Daar v. Yellow Cab Co. (1967), 67 Cal. 2d. 695; 443 P. 2d. 732, refd to. [para. 160].

State v. Levi Strauss & Co. (1986), 41 Cal. 3d. 460; 715 P. 2d. 514, refd to. [para. 160].

Statutes Noticed:

Criminal Code, R.S.C. 1985. c. C-46, sect. 15 [para. 52].

Ontario Energy Board Act, S.O. 1998, c. 15, sect. 25 [para. 35].

Ontario Energy Board Act, R.S.O. 1990, c. O-13, sect. 18 [para. 36].

Authors and Works Noticed:

Antle, Stephen, A Practical Guide to Section 347 of the Criminal Code - Criminal Rates of Interest (1994), 23 C.B.L.J. 323, p. 337 [para. 141].

Goff and Jones, The Law of Restitution (5th Ed. 1998), pp. 16 [paras. 64, 109. 111]; 16 to 17 [para. 110]; 27 [para. 109].

Litman, The Emergence of Unjust Enrichment as a Cause of Action and the Remedy of Constructive Trust (1988), 26 Alta. L. Rev. 407, p. 451 [para. 115].

Maddaugh and McCamus, The Law of Restitution (1990), pp. 38 [paras. 64, 108]; 38 to 44 [para. 110]; 44 [paras. 64, 112].

Martin's Annual Criminal Code, 2001, p. 48 [para. 54].

McInnes, M., Incontrovertible Benefits in The Supreme Court of Canada: Peel (Regional Municipality) v. Canada: Peel (Regional Municipality) v. Ontario (1994), 23 C.B.L.J. 122, p. 123 [para. 108].

Ontario Law Reform Commission, Report on Class Actions (1988), generally [para. 1].

Smith, L., The Mystery of "Juristic Reason" (2000), 12 S.C.L.R.(2d) 211, pp. 211, 215, 219 [para. 117]; 219 to 229 [para. 105]; 220 [para. 125]; 229 [para. 126].

Counsel:

Michael McGowan and Barbara L. Grossman, for the appellant;

Mark M. Orkin, Q.C., for the appellant, The Law Foundation of Ontario;

Fred D. Cass, for the respondent;

Alan H. Mark and Julie Rosenthal, for the intervenor, Toronto Hydro-Electric System Limited.

This appeal was heard on March 7 and 8, 2001, before McMurtry, C.J.O., Borins and MacPherson, JJ.A., of the Ontario Court of Appeal. The judgment of the Court of Appeal was released on December 3, 2001, including the following opinions:

McMurtry, C.J.O. (MacPherson, J.A., concurring) - see paragraphs 1 to 85;

Borins, J.A., dissenting - see paragraphs 86 to 162.