Andison v. Katz, 2012 MBCA 107

Citation: Andison v. Katz, 2012 MBCA 107 Date: 20121113 Docket: AI 12-30-07776 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Scott Mr. Justice Richard J. Chartier Madam Justice Holly C. Beard BETWEEN : RICHARD ANDISON ) M. T. Green ) for the Appellant (Applicant) Appellant ) ) R. W. Schwartz and ) K. L. Hall - and - ) for the Respondent ) ) Appeal heard: ) October 12, 2012 FAY-LYNN KATZ ) ) Judgment delivered: (Respondent) Respondent ) November 13, 2012 BEARD J.A. I. THE ISSUE 1 The appellant, Mr.

Andison, filed an application in the Court of Queen’s Bench under s. 14(1) of The Limitation of Actions Act , C.C.S.M., c. L150 (the Act ), for an extension of time to begin an action after the expiration of the limitation period in the Act . The application judge dismissed the application, and Mr. Andison has appealed that decision. The following two grounds of appeal arise from the parties’ arguments: (

i) Did the application judge commit an error of law in his

interpretation of

Part II of the Act ? (ii) Did the application judge commit an error of mixed fact and law in his application of

Part II of the Act to the facts of this case? 2 In addition, with the consent of the respondent, Ms Katz, Mr. Andison is seeking leave to advance a new position not raised before the application judge, being that, in all of the circumstances, he is not required to bring a s. 14 application as his claim is one of indemnity for which the limitation period has not yet expired. II. THE FACTS 3 The facts relevant to this matter are not at issue. Mr.

Andison was engaged to Ms Brandt and he retained and instructed Ms Katz to prepare a pre-nuptial agreement which was to settle his financial obligations to Ms Brandt in the event of their separation (embodied in para. 10 of the final agreement) and, alternatively, in the event that he predeceased her while they were still married and living together (embodied in para. 13 of the final agreement).

Ms Katz prepared a draft agreement, following which there were negotiations with Ms Brandt’s lawyers, and an agreement was eventually signed on April 21, 1997. 4 The couple was married on May 17, 1997, and they separated on or about February 10, 2004. Mr. Andison filed a divorce petition on March 16, 2004. Ms Brandt filed an answer on approximately May 18, 2004, and an amended answer on August 16, 2007. 5 On October 26, 2005, Mr. Andison, through his lawyer, put Ms Katz’s firm on notice of a potential claim for negligence

regarding the effect of paras. 10 and 13 of the agreement and, in particular, the possibility that they were not alternative, but cumulative entitlements. 6 Mr. Andison and Ms Brandt were unable to settle this disagreement, so the matter was set down for trial on December 9, 2008. Mr. Andison filed a pre-trial motion to lead parol evidence regarding the agreement, which motion was heard by the trial judge prior to the trial.

In his ruling on December 3, 2008 ( 2008 MBQB 323 , 234 Man.R. (2d) 207 ), the judge dismissed the motion and, in the course of doing so, stated that the agreement was clear and unequivocal and that there was nothing in it to restrict Mr. Andison’s responsibility under para. 13. 7 Following receipt of those reasons, and being of the view that this was an indication of the likely outcome of this issue at trial, Mr. Andison instructed his lawyer to settle the matter. A settlement agreement was entered by the parties in which Mr.

Andison agreed to pay Ms Brandt the value of the Winnipeg condominium of $350,000 and to pay the cost of insurance on his life of $1,000,000 for the rest of his life, this being 50 per cent of the life insurance required by the pre-nuptial agreement. Those premiums were approximately $9,000 per year at that time. 8 Within one year of the trial judge’s decision, Mr. Andison filed his application for leave to commence an action against Ms Katz under s. 14(1) of the Act . III.

STANDARD OF REVIEW 9 The parties are in agreement, as am I, that the standard of review on this appeal is correctness on a question of law and palpable and overriding error on a question of fact or on a question of mixed fact and law, unless there is an extricable question of law within the question of mixed fact and law. (For a fuller explanation of the standard of review in a civil case, see Tuteckyj v. Winnipeg (City) , 2012 MBCA 100 at paras. 8-13 and the cases listed in para. 9 therein.) 10 The parties are not in agreement regarding the characterization of the grounds of appeal, Mr.

Andison taking the position that the appeal raises a question of law and Ms Katz taking the position that it raises only a question of mixed fact and law. In my view, based on their arguments, their grounds of appeal are as set out in para. 1 of these reasons. IV.

THE ACT 11 The relevant provisions of the Act are as follows: Extension of time in certain cases 14(1) Notwithstanding any provision of this Act or of any other Act of the Legislature limiting the time for beginning an action, the court, on application, may grant leave to the applicant to begin or continue an action if it is satisfied on evidence adduced by or on behalf of the applicant that not more than 12 months have elapsed between (

a) the date on which the applicant first knew, or, in all the circumstances of the case, ought to have known, of all material facts of a decisive character upon which the action is based; and (

b) the date on which the application was made to the court for leave. Reference to material facts 20(2) In this Part any reference to a material fact relating to a cause of action is a reference to any one or more of the following, that is to say: (

a) The fact that injuries or damages resulted from

an act or omission. (

b) The nature or extent of any injuries or damages resulting from

an act or omission. . . . . . Nature of material facts 20(3) For the purposes of this Part, any of the material facts relating to a cause of action shall be taken , at any particular time, to have been facts of a decisive character if they were facts which a person of his intelligence, education and experience, knowing those facts and having obtained appropriate advice in respect of them, would have regarded at that time as determining , in relation to that cause of action, that , apart from any defence based on a provision of this Act or any other Act of the Legislature limiting the time for bringing an

action, an action would have a reasonable prospect of succeeding and resulting in an award of damages or remedy sufficient to justify thebringing of the actions. [emphasis added] Where facts deemed to be outside knowledge 20(4) Subject to subsection (5), for the purposes of this Part, a fact shall, at any time, be taken not to have been known by a person,actually or constructively if (

a) he did not then know that fact; (

b) in so far as that fact was capable of being ascertained by him, he had taken all actions that a person of his intelligence, education andexperience would reasonably have taken before that time for the purpose of ascertaining the fact; and (

c) in so far as there existed, and were known to him, circumstances from which, with appropriate advice, the fact might have beenascertained or inferred, he had taken all actions that a person of his intelligence, education and experience would reasonably have takenbefore that time for the purpose of obtaining appropriate advice with respect to the circumstances. V. THE GROUNDS OF APPEAL (

i) Did the application judge commit an error of law in his

interpretation of

Part II of the Act? 12 Mr. Andison argued that the application judge committed two errors of law: - the first alleged error is that the application judge misinterpreted the law when he found that the possibility that Mr. Andisonwould be held legally responsible to pay the amounts set out in para. 13 of the agreement was a fact – according to Mr.

Andison, apossibility is not a fact; and - the second alleged error is that the application judge ignored the question of the “decisive character” of the facts, so that even if apossibility is a fact, the application judge did not deal with the requirement that the fact must be of a decisive character. 13 Regarding the first alleged error of law, being whether a possibility is a fact, that can only be determined by looking at thefacts of the case as they relate to the applicable law.

It is not an extricable question of law, but rather a question of mixed fact and law. 14 Regarding the second alleged error of law, it is clear that the application judge did not ignore the question of the “decisivecharacter” of the facts.

In his reasons, he stated as follows: - at para. 28, he quoted the relevant sections of the Act, including s. 14(1)(a), which states that the period for filing the applicationbegins to run from the date on which the applicant knew or ought to have known of all material facts of a decisive character, and s. 20(3),which provides a definition of material facts of a decisive character; - at para. 35, he stated that the determinative question is the date on which Mr.

Andison first knew or ought to have known, in all ofthe circumstances of the case, of all material facts of a decisive character upon which his proposed action is based; - at para. 49, he referred to the decision in Budd v.

Cardoso (1996), (MB CA), 113 Man.R. (2d) 101 (C.A.),noting that Budd received medical reports from several doctors and the Court of Appeal considered which of those reports would haveprovided Budd with material facts of a decisive character upon which he could base an action; - at para. 61, he concluded that knowing the precise amount of damages was not a material fact of a decisive character; and - at para. 62, he found that, as of August 16, 2007, Mr.

Andison knew, in all the circumstances of the case, all of the material facts ofa decisive character upon which his action was based. 15 Thus, it is clear that the application judge was aware of and applied the “question of the decisive character of the facts,” so hedid not commit any error of law in failing to do so. 16 Despite Mr. Andison’s arguments to the contrary, his appeal is really only based on the question of whether the applicationjudge erred in his determination of when he had knowledge of all material facts of a decisive character.

Whether the facts in this casewere of a “decisive character” can only be determined by looking at the facts of the case. Thus, it is a question of mixed fact and law,not a question of law. (ii) Did the application judge commit an error of mixed fact and law in his application of

Part II of the Act to the facts of this case? The Application Judge’s Decision

17 The application judge’s key findings are as follows (at paras. 56, 58, 61-62): Based on the fact of and the content of King’s October 26, 2005 correspondence, it would be reasonable to assume that Andison had knowledge of Katz’s breach of duty and the resulting harm in the immediate form of legal costs as well as the potential for further damages if Brandt was to receive a favourable

interpretation of paragraphs 10 and 13 of the Agreement. In other words, he would have had an awareness of the source of the injury, that is, the allegedly negligent manner in which the Agreement was prepared and the causal relationship between the harm and Katz’s negligence. However, as of August 16, 2007, Brandt’s position relating to the

interpretation of paragraphs 10 and 13 of the Agreement became crystal clear. She stated unequivocally in her amended answer that she would be pursuing the cumulative relief which she says she was entitled to pursuant to those provisions of the Agreement. This representation was made within the context of the divorce proceeding. Andison could not have been left with any doubt as to her intention. Based on the decision in Swan River , [2002 MBCA 99 , 166 Man.R. (2d) 129 ] I conclude that knowing the precise amount of damages was not a material fact of a decisive character.

As of August 16, 2007, Andison had already incurred damages by way of legal fees and was aware that further damages might flow from Katz’s negligence. I therefore find that as of that date, Andison first knew, in all the circumstances of the case, of all material facts of a decisive character upon which his action was based. This application was not filed until November 24, 2009, well beyond the 12-month period set out in s. 14(1) of the Act . Accordingly, Andison’s application is dismissed with costs. The Appellant’s Position 18 Mr.

Andison’s position is that the application judge erred in finding that he had knowledge of the material and decisive facts prior to receiving Goodman J.’s decision on December 3, 2008. He argues that it was only upon receiving that decision that he knew, and reasonably could have been expected to know, that his lawyer had failed to draft the pre-nuptial agreement in accordance with his instructions.

In other words, it was only upon learning the outcome of the alternative/cumulative issue that he was in possession of all of the material facts of a decisive character. 19 In his factum, he further explained his position as follows: The learned application judge in essence held that the possibility of an adverse finding was all that was required to toll the twelve month period for filing an application pursuant to

Section 14, as opposed to that possibility’s becoming a reality. It is submitted that this is a misapplication of

Part II of The Limitation of Actions Act and hence a reversible error of law. …. With respect the date upon which the applicant became aware of the position being advanced by Brandt is a complete red herring. The overriding issue, it is submitted, is the date upon which the possibility became reality, and that was not until December 3, 2008 at the earliest. 20 Mr. Andison argues, in the alternative, that it was only upon receiving Goodman J.’s decision that he knew the extent of his damages, the “extent of damages” being identified as a “material fact” in s. 20(2) (

b) of the Act . The Respondent’s Position 21 Ms Katz’s position is that the application judge did not err in his finding that the application for leave was not brought within 12 months from when Mr. Andison knew, or ought to have known, of all of the material facts on which the cause of action is based. 22 She argues that Mr. Andison knew by October 26, 2005, that being the date of his lawyer’s letter to her law firm putting it on notice of a possible claim, that the agreement that she had drafted was apparently and allegedly not drafted in accordance with his instructions. She further argues that Mr.

Andison also knew by that date that he was incurring legal fees to negotiate this issue and that he was likely to suffer further damage, should his

interpretation of the agreement not be accepted. Her position is that the question of damages is not whether Mr. Andison knew the precise quantum of damages, but whether he appreciated that they would be something other than nominal. 23 In any event, Ms Katz’s position is that, by August 16, 2007, at the latest, when the amended answer was filed alleging that paras. 10 and 13 of the pre-nuptial agreement were cumulative and not alternative, Mr. Andison knew that some damage had been suffered by way of legal fees and that there was a likelihood of future damage if the issue was decided against him.

Analysis The Cause of Action 24 To understand what constitutes “material facts of a decisive character” in relation to an action, as those words are used in

Part II of the Act , it is helpful to understand the elements of the cause of action – here, negligent provision of services. (See Burke et al. v. Heaton et al. , 2003 MBCA 104 at paras. 21-22 , 177 Man.R. (2d) 213 .) 25 The jurisprudence governing this issue was reviewed at length by this court in Burke . In that case, the plaintiffs alleged that, between 1979 and 1981, the defendant lawyer gave them negligent advice respecting legal documentation used to create a limited partnership to hold investment properties in Florida.

Their investments failed when they lost the properties in 1986, and they sued the lawyer and others in 1988. The defendant lawyer raised a limitation defence, arguing that the cause of action arose in 1981, when he

gave the advice and arranged for the plaintiffs to sign the agreement at issue. The plaintiffs argued that their cause of action against thelawyer arose only in 1984, when the property was foreclosed upon and their investments were totally lost. 26 After reviewing the jurisprudence, Monnin J.A., for the court, stated as follows (at paras. 24, 30): The plaintiffs have focussed their argument on the concept of deprivation and that loss only occurs when deprivation arises. Theplaintiffs argue that in this case the deprivation occurred when the fraud occurred and they were in fact deprived of their security.

Myview of this argument is that the plaintiffs are equating deprivation with quantum of loss and not the loss itself. The loss to the plaintiffsoccurred when the defendant Greenberg negligently had them enter into the new agreement. Had Heaton never acted fraudulently, theamount of the plaintiffs’ loss could well have been nominal but that remains an issue of quantum and not an issue of when the loss in factoccurred. …. Quite to the contrary the case law is clear on the point and in this case it is not an issue of evidence or lack thereof. Thedamage occurred when the defendant Greenberg gave the advice.

By suing the claim in 1988 the plaintiffs were past the six-yearlimitation period. 27 Thus, it is clear that the damage component of the cause of action is not to be equated with the plaintiff’s ultimate financialloss and also that the damage occurs when the would-be plaintiff acts on the negligent advice, rather than when the actual financial lossoccurs. (See also Central Trust Co. v. Rafuse, (SCC), [1986] 2 S.C.R. 147 at 217-20, and the decision of Monnin J.A.,for the majority, in Sentinel Self-Storage Corp. v.

Dyregrov et al., 2003 MBCA 136 at para. 19, 180 Man.R. (2d) 85.) 28 In many cases the quantum of damages at the time of the negligence will be minimal and the final damages will not beknown unless and until some future contingency occurs. The fact that the contingency may never be realized, and therefore the would-be plaintiff may never suffer more than a nominal loss, does not change the fact that there was damage or a detriment on the taking of thenegligent advice sufficient to complete the tort. For example, in Central Trust Co. v.

Rafuse, the contingency that Central Trust wouldsuffer a loss became a reality when the shareholders defaulted on the loan, yet the court held that the damage occurred at the earlier dateof the signing of the mortgage (subsequently determined to be void), not on the later date of the default on the loan.

In Burke, thatcontingency was realized when there was a foreclosure on the property and the would-be plaintiffs lost their investment, yet the damageoccurred when the investment deal was completed and not on the foreclosure. 29 This outcome resulted in an injustice to many would-be plaintiffs, as the limitation period for bringing a claim would haveexpired before they were aware that they had suffered any loss.

This led to the adoption of procedures to extend the limitation period,the two major ones being the judge-made discoverability rule that is in place in some jurisdictions and the legislated extension that is inplace in others. With the passage of

Part II of the Act, Manitoba adopted the legislated extension as the procedure for overcoming thisinjustice. (See Weselak v. Beausejour District Hospital No. 29 (1986), (MB KB), 45 Man.R. (2d) 196 (Q.B.), aff’d onother grounds (1987), (MB CA), 49 Man.R. (2d) 86 (C.A.); Rarie v. Maxwell (1998), (MB CA),131 Man.R. (2d) 184 (C.A.); and Burke at para. 26.) 30 It is clear that, in this case, the cause of action arose on April 21, 1997, when Mr. Andison and Ms Brandt signed the pre-nuptial agreement. That is the date on which the damage occurred, in that Mr.

Andison entered into an agreement that was not inaccordance with his instructions to his lawyer. He had, at that point, a deficient agreement. The extent of that deficiency was contingenton future events – those being that he and his wife would separate and that she would advance a claim for an

interpretation of the pre-nuptial agreement that was not in accordance with his instructions to his lawyer. The fact that the determination of the quantum ofdamages depended on the occurrence of those events does not change the character of the events in 1997. 31 An understanding of the elements of the tort answers Mr. Andison’s concern that it would be contrary to common sense toforce the parties to commence proceedings before they knew that they would be liable and the amount of that liability. This questionwas addressed by the English Court of Appeal in Knapp and Knapp v.

Ecclesiastical Insurance Group Plc and Smith, [1998] Lloyd’sRep. I.R. 390, a case dealing with a claim of professional negligence against an insurance broker. Lord Justice Hobhouse concluded (atp. 402): …. … [t]he plaintiffs paid their renewal premium without getting in return a binding contract of indemnity from the insurancecompany. They had acted to their detriment: they did not get that to which they were entitled.

The fact that how serious theconsequences of the negligence would be depended upon subsequent events and contingencies does not alter this; such considerations goto the quantification of the plaintiffs’ loss not to whether or not they have suffered loss. The risk of loss existed from the outset and inthe absence of better evidence would have to be evaluated and assessed as a risk and damages awarded accordingly.

Part II of the Act 32 The provisions in the Act to extend the limitation period that are relevant in this case are ss. 14(1) and 20(3) (at para. 11 ofthese reasons).

Section 14(1) states that the extension of time will begin to run on “the date on which the applicant first knew, or, in allthe circumstances of the case, ought to have known, of all material facts of a decisive character upon which the action is based.” Section20(3) defines the nature of material facts as being of a decisive character if they were “facts which a person … would have regarded atthat time as determining … that … an action would have a reasonable prospect of succeeding and resulting in an award of damages orremedy sufficient to justify the bringing of the actions.” 33 This provision in the Act makes it clear that material facts of a decisive character do not require certainty or near certaintyregarding either the prospect of success or of the amount of the damages that would flow in the event that the cause of action isultimately proved.

All that is required is that the would-be plaintiff knew or ought to have known of facts that indicate a “reasonableprospect of [the action] succeeding” and that the action would result in damages “sufficient to justify the bringing of the actions.” 34 This legislation was applied in Budd, a case arising out of a claim of medical malpractice and professional negligence. The

issue was whether “material facts of a decisive character” as found in s. 14(1) required that the applicant have an expert report statingthat the would-be defendant, a surgeon, was negligent, and this court found that such an opinion was not required (at para. 30).

HelperJ.A., for this court, agreed that, upon receipt of the January 1993 medical report that questioned the procedure adopted by the surgeonand his technique and related the applicant’s symptoms to the surgery, the applicant had all of the material facts that he required toproceed with an action, notwithstanding that the 1993 report did not opine that the surgeon was negligent. There was an argument thatthe cause of action did not arise until the receipt of a later report in 1995 that stated definitively that the treatment was not appropriate,but that position was rejected by this court.

Application to the Facts of This Case 35 Mr. Andison argues that he “did not have knowledge of a material fact – that he would have to make payment to Brandtunder para. 13 of the pre-nuptial agreement – before December 3, 2008.” In other words, he is arguing that he had to be certain that hewould suffer a loss before he had all of the material facts of a decisive character. 36 This is a misstatement of what constitutes material facts of a decisive character.

As noted above, all that is required is that hehave knowledge of material facts that indicate a “reasonable prospect of [the action] succeeding,” not that he be certain or nearly certain. Knowledge of material facts does not equate with a determination of the legal effect of those facts. Just like the applicant in Budd did nothave to have a report that the surgeon was negligent in order to have all of the material facts of a decisive character regarding his claim,Mr.

Andison did not require the decision of Goodman J. that he would have to make the payment to Ms Brandt before he had all of thematerial facts of a decisive character regarding his claim. In fact, Goodman J. did not say that he had to make the payment to Ms Brandt,as that was not the issue before him on the motion. Given that he was also to be the trial judge, however, his obiter comments made thatoutcome following the trial more certain than it had been before his decision. 37 Mr.

Andison had the required material facts by the time that his lawyer wrote to Ms Katz’s law firm on October 26, 2005, toput it on notice of the potential negligence claim against it. The particulars of the claim against Ms Katz are all set out in the letter. Mr.Andison was not certain or nearly certain at that time that the action would succeed, in the same way as the applicant in Budd was notcertain or nearly certain that his claim would succeed, but, as I said earlier, neither certainty nor near certainty is required.

He had, atthat time, knowledge of the material facts that indicated that there was a reasonable prospect of the action succeeding, which made themfacts of a decisive character, and that is all that is required under

Part II. 38 That Ms Brandt was truly serious about pursuing her position was made clear by August 16, 2007, when she filed heramended answer in which she claimed that the two provisions were cumulative. Given that this date, as well, is more than 12 monthsprior to Mr. Andison filing this application, he would still be out of time to proceed, so it does not matter which of these two dates fillsthe requirements of s. 14(1) in this matter. 39 Mr. Andison argues, in the alternative, that he did not know the “extent” of his damages prior to December 3, 2008, and thatthis was a material fact required pursuant to s. 20(2)(

b) of the Act. He says that it would not have been appropriate for him to havecommenced an action on “the possibility” that he might be held responsible. Again, he is importing a requirement of certainty, or nearcertainty, into the definition of “material facts of a decisive character,” and that is not what is required in the statute. Section 20(2)(b)must be read together with s. 20(3), which states that all that is required is that he know that the action would result in damages sufficientto justify bringing the actions. There is no requirement that he has to know the amount of those damages with any degree of certainty. 40 In this case, he knew by October 26, 2005, that, if his

interpretation of the pre-nuptial agreement was not accepted, the resultwould be that he would have to pay Ms Brandt the sum in para. 13 of the agreement and that he would have incurred legal fees in theprocess. This was clearly a sum sufficient to justify the bringing of the action. Thus, he knew the nature and potential extent of hisdamages. 41 The application judge found that Mr. Andison knew of all material facts of a decisive character by August 16, 2007, the dateof the filing of the amended answer.

While I would have found that he had that knowledge at the earlier date of October 26, 2005, theapplication judge was correct in his finding that Mr. Andison did not file his application within the 12-month time-frame required bys. 14(1) of the Act and in dismissing the application. 42 For these reasons, it is clear that the application judge did not commit any error in his application of

Part II of the Act to thefacts of this case, and he certainly did not commit a palpable and overriding error. 43 I have one comment regarding a concern raised by Mr. Andison. He questioned the likely outcome of a proceedingcommenced against Ms Katz before he had a final decision on his liability to Ms Brandt, given that he would not then know the extent ofhis loss. He argued that such a proceeding would be premature.

The short answer to this is to be found at para. 31 herein, whichindicates that the matter could proceed without that issue being finally resolved. 44 In addition, there were at least two alternative courses of action available to him to enable him to await the outcome of theproceedings with Ms Brandt and, at the same time, avoid being met with a limitation defence. The first would be for Mr. Andison toraise the issue with Ms Katz to see if they could arrive at an agreement to stop the limitation clock from running until that underlyingissue had been resolved and his liability determined.

The second would be for Mr. Andison to commence his proceeding within therequired limitation period or extended period and then have it adjourned pending the outcome of the action between himself and MsBrandt, which adjournment could be done either by consent or on motion to the court. This is not intended to be an exhaustive list ofalternative solutions. VI. THE CLAIM OF INDEMNITY 45 Mr. Andison is seeking leave to advance a new position not raised before the application judge. This court set out the criteriafor permitting a party to raise a new issue for the first time on appeal in R. v.

C.J. (1997), (MB CA), 115 Man.R. (2d)72. Speaking for the court, Scott C.J.M. stated as follows (at paras. 4-5):

The law is clear that an appellate court will only allow an issue to be raised for the first time on appeal in exceptional circumstances …. The authorities noted above state that an issue may only be argued de novo at the appellate level when it could not have been properly raised or anticipated in the court below, and where it is clear that the relevant facts are already on the record. Neither of these criteria ha[s] been met in this case. 46 We have not received any satisfactory explanation for Mr.

Andison not having raised this issue before the application judge, and we have been left to conclude that it could have been raised at that earlier time, had he thought of it. Thus, there is no evidence of any exceptional circumstance explaining this delay. 47 Further, this court does not have all of the facts before it. Ms Katz has not filed any factual material because it was not relevant to Mr. Andison’s

Part II application (see s. 15(2) of the Act ), but that means that it is not now before the court. Counsel for Ms Katz had agreed to have this new matter put before this court, but, on further reflection during argument, he became of the view that the request should not be granted. 48 The arguments that would support a claim for indemnity were not well-developed. For example, neither counsel was aware of the recent case of R. v. Imperial Tobacco Canada Ltd. , 2011 SCC 42 , [2011] 3 S.C.R. 45 , that appears to be very relevant to this issue.

Frankly, while not making any definitive decision on this point, it is difficult to see where there can be any claim for indemnity that does not rest on the claims that are the subject of the

Part II application, but that matter will have to be resolved in a further hearing, if Mr. Andison pursues this claim. 49 In any event, if Mr. Andison is correct, the limitation period on that proposed claim has not yet expired, so he can still file the claim in indemnity in the Court of Queen’s Bench. 50 For all of these reasons, the application for leave to advance this new position should not be granted. VII. DISPOSITION OF THE APPEAL 51 For the above-noted reasons, I would dismiss both Mr.

Andison’s appeal and his request to raise a new position on appeal, with costs to Ms Katz. __________________________ J.A. I agree: _______________________ C.J.M. I agree: _________________________ J.A.