Barrister and Solicitor
Legal Writing and Research
Statutory Interpretation - When Provisions Effective - Procedural versus Substantive
Canadian Imperial Bank of Commerce v Deloitte & Touche (Ont CA, 2014)
This case dealt with a statutory provision in the Chartered Accountants Act (CAA) that rendered evidence and orders given in CAA proceedings inadmissible in other proceedings:
 For ease of reference, I will repeat the language of s. 61:
No record of a proceeding under this Act and no document or thing prepared for or statement given at such a proceeding and no decision or order made in such a proceeding is admissible in any civil proceeding, other than a proceeding under this Act or a judicial review relating to a proceeding under this Act. It is helpful to divide s. 61 into two parts for the purpose of considering the impact of the presumption that procedural rules operate retrospectively. The first part of s. 61 identifies the subject matter or substance of the exclusionary rule created by the section. That part of the section answers the question “what material is rendered inadmissible?” The second part of s. 61 identifies the proceedings to which the exclusionary rule applies. This part of the section answers the question “in what proceedings does the exclusionary rule apply?”
 The subject matter of the evidentiary rule created by s. 61 is described in the first three clauses of the section:
• a record of “a proceeding under this Act”;
• a document, thing or statement prepared for or given at “such a proceeding”; and
• a decision or order made “in such a proceeding”.
 All of the material captured by the exclusionary rule created by s. 61 is material related to “a proceeding under this Act”. That phrase describes the documents that are subject to the exclusionary rule.
 The proceedings to which the exclusionary rule applies are identified in the last part of s. 61:
… any civil proceeding other than a proceeding under this Act or a judicial review relating to a proceeding under this Act. As observed by the motion judge, at para. 88, procedural provisions are, in the absence of a legislative indication to the contrary, presumed to have “immediate effect and apply retrospectively to existing proceedings”. While, as noted by Professor Sullivan, the use of the word “retrospective” in this context may be a misnomer, the common law has for at least 150 years presumed the immediate application of all procedural legislation to proceedings whether those proceedings were commenced before or after the enactment of that legislation: Ruth L. Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Markham: LexisNexis, 2008), at pp. 696-98; see also R. v. Dineley, 2012 SCC 58 (CanLII), 2012 SCC 58,  3 S.C.R. 272, at para. 10, Deschamps J., for the majority, and at para. 35, Cromwell J., dissenting.
The evidentiary rule described in s. 61 has no application to a proceeding under the CAA, 2010. It applies to all other civil proceedings, save for those caught by the narrow exception “a judicial review relating to a proceeding under this Act”.
 Rules of evidence are generally regarded as procedural and subject to the presumption of immediate application: R. v. Wildman, 1984 CanLII 82 (SCC),  2 S.C.R. 311, at pp. 331-32; R. v. E. (A.W.), 1993 CanLII 65 (SCC),  3 S.C.R. 155, at p. 189; Dineley; and R. v. Bickford reflex, (1989), 51 C.C.C. (3d) 181 (Ont. CA.). Section 61 is, no doubt, a rule of evidence. Nothing in the language of s. 61 could be read as rebutting the presumption in favour of immediate application.
 I cannot accept the appellant’s submission that s. 61 is a substantive provision in that it removes the plaintiffs’ vested right to rely on the discipline proceedings to support the contention that Deloitte should be estopped from contesting some of the allegations of negligence advanced in this action. Issue estoppel and related concepts are a means of proof and are generally regarded as part of the law of evidence. Where issue estoppel applies, a party relies on the estoppel to establish a fact or facts, and the opposing party is foreclosed from challenging the fact or facts that are the subject of the estoppel: see Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 (CanLII), 2013 SCC 19.