COURT OF APPEAL FOR ONTARIO

CITATION: Temelini v. Canada Permanent Trust Company, 2017
    ONCA 410

DATE: 20170519

DOCKET: C62836

Lauwers, Hourigan and Benotto JJ.A.

BETWEEN

Paul Temelini

Plaintiff (Appellant)

and

Canada
    Permanent Trust Company, Canada Trust Company
and

Robert Thorn

Defendants (
Respondents
)

Howard Walch, for the appellant

Gillian B. Dingle and Aria Laskin, for the respondents

Tim Gleason and Rebecca Glass, for the interveners,
    Claudio Martini and Shulgan Martini, Marusic LLP

Heard: May 16, 2017

On appeal from the order of Justice Kevin B. Phillips of
    the Superior Court of Justice, dated November 29, 2016.

REASONS FOR DECISION

[1]

This is an appeal from the order of the motion judge dismissing this
    action for delay.

[2]

In 1984, the appellant, Paul Temelini, commenced an action against the
    RCMP and other defendants for, among other things, malicious prosecution
    resulting from fraud charges, for which he was ultimately acquitted (the RCMP
    Action).

[3]

In the RCMP Action, documentation was produced by the RCMP that led Mr.
    Temelini to believe that he had a cause of action against the respondents.
    Specifically, Mr. Temelini alleges that the respondent, Robert Thorn, an
    employee of the respondent Canada Permanent Trust Company, provided
    confidential financial information about him and his businesses to the RCMP
    during the course of the RCMPs criminal investigation. Mr. Temelini commenced this
    action against Canada Permanent Trust Company, a successor company, and Mr.
    Thorn (the Canada Permanent Action) in 2004, seeking damages for the alleged
    wrongful disclosure.

[4]

By 2016, the Canada Permanent Action had not progressed beyond the
    pleading stage. Mr. Temelini had not delivered an affidavit of documents, no
    discoveries had taken place, and no production had been made. The respondents
    brought a motion to dismiss for delay.

[5]

In granting the respondents motion, the motion judge found that the lengthy
    delay in this case was inexcusable and was attributable to Mr. Temelinis
    decision to prioritize the RCMP Action over the Canada Permanent Action. He
    concluded that while the actions were subject to a common timetable and joint
    case management, the appellant consigned the Canada Permanent Action to
    dormancy while the RCMP Action proceeded to trial. The motion judge also
    found that the death of the key witness for the RCMP constituted prejudice to
    the respondents and that a fair trial was no longer possible.

[6]

On appeal, Mr. Temelini submits that the motion judge erred in not
    considering all of the relevant circumstances in determining whether there was
    a reasonable explanation for the delay. Specifically, he asserts that the
    motion judge erred in failing to take into account the status of the RCMP
    Action and the deliberate deceit perpetrated by his second counsel regarding
    the status of the Canada Permanent Action. Mr. Temelini also submits that the
    motion judge erred when he found that he had prioritized the RCMP Action.

[7]

The interveners, Claudio Martini and Shulgan, Martini, Marusic LLP, were
    Mr. Temelinis lawyers in both the RCMP Action and the Canada Permanent Action
    between 2011 and 2015.  They deny that Mr. Martini ever mislead Mr. Temelini
    regarding the status of the Canada Permanent Action. The interveners support
    Mr. Temelinis position on this appeal that the motion judge erred in
    dismissing the Canada Permanent Action.

[8]

We are not persuaded that there is any basis for appellate interference
    with the motion judges order.

[9]

The motion judge carefully reviewed the circumstances surrounding the
    failure of Mr. Temelini to advance the Canada Permanent Action. He specifically
    considered the impact of an order made in 2008 by Master Beaudoin that the two
    actions be case managed together and subject to a common timetable. He
    highlighted Mr. Temelinis failure to comply with his court-ordered production
    obligations, stating:

How two actions could adhere to a common timetable when a
    unilateral decision is made to disclose documents with respect to one but not
    the other is beyond me. I find that the explanation proffered is insufficient
    to justify the delay caused. The delay was caused by a decision to prioritize
    one action over the other. In my view, that decision is incompatible with the
    clear intention of the order of Beaudoin J., back in 2008. As such, it is
    inexcusable.

[10]

The
    motion judges conclusion was amply supported by the evidence. The
    incontrovertible fact is that, while the RCMP Action proceeded to trial, the
    Canada Permanent Action never advanced beyond the pleading stage after 12 years.
    We accept that the RCMP Action was complex and time-consuming, but that does
    not excuse Mr. Temelinis failure to take any steps to advance the Canada
    Permanent Action.

[11]

In
    finding that the delay was inexcusable, the motion judge also considered and
    rejected Mr. Temelinis argument that the delay was attributable to the conduct
    of his second counsel in the Canada Permanent Action, Mr. Martini. The motion judge
    recognized the disputed evidence regarding Mr. Martinis role in the delay, but
    he reiterated his conclusion that the appellant made a decision to prioritize
    the RCMP action over that as against Canada Permanent and found that the time
    scope of [Mr. Temelinis] non-disclosure to Canada Permanent is so broad that
    it cannot be explained away by the narrow involvement of Mr. Martini. The
    motion judge held that any production failures that took place during Mr.
    Temelinis retainer of Mr. Martini were typical of Mr. Temelinis approach to
    the Canada Permanent Action throughout its duration, not just the discrete
    part handled by Mr. Martini.

[12]

We
    see no error in that analysis. The motion judge was aware of the allegation
    that Mr. Martini deliberately mislead Mr. Temelini by telling him that
    production had been made in the Canada Permanent Action. However, he was
    entitled to discount that evidence given that production had not been made
    prior to Mr. Martinis retainer or after his withdrawal from the case.

[13]

For
    these reasons, the appeal is dismissed. The respondents are entitled to their
    costs of the appeal in the agreed upon all-inclusive sum of $9,000, payable by
    Mr. Temelini. There shall be no costs payable by the interveners.

P. Lauwers J.A.

C.W. Hourigan J.A.

M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: 232169 Ontario Inc. (Farouz Sheesha Café) v.
    Toronto (City), 2017 ONCA 484

DATE: 20170613

DOCKET: C62904

Weiler, van Rensburg and Huscroft JJ.A.

BETWEEN

232169 Ontario Inc. O/A Farouz Sheesha Café, 7923406
    Canada Inc., Club Layal El Sharke Inc., Oum Kulthoum, and Nile Palace Cafe

Applicants (Appellants)

and

The City of Toronto

Respondent (Respondent in Appeal)

Ryan P. Zigler, for the appellants

Kirsten Franz and Leslie Mendelson, for the respondents

Heard: June 6, 2017

On appeal from the judgment of Justice R. F. Goldstein of
    the Superior Court of Justice, dated October 7, 2016.

REASONS FOR DECISION

A.

Overview

[1]

The appellants operate hookah lounges in Toronto. Hookah lounges offer
    beverages and food for sale, but are known primarily as places to socialize or
    relax, and smoke hookahs, a form of water pipe. Hookah lounges charge for the
    use of hookahs and sell shisha, a legal substance that is smoked.

[2]

In 2015, the City of Toronto passed By-Law 1331-2015. The by-law
    prohibits the use of hookah devices in connection with premises, vehicles, or
    things required to be licensed by the City for various purposes.  In
    particular, the by-law prohibits the inhaling or exhaling of smoke from a
    hookah, as well as the holding of an activated hookah.

[3]

The appellants brought an application challenging the validity of the
    by-law. The application judge found as follows:

·

the
    purpose of the by-law is to deal with public health and safety, and that this
    purpose was specifically authorized by the
City of Toronto Act, 2006
,
    S.O. 2006, c. 11;

·

a
    broad and purposive approach should be taken to municipal powers;

·

although
    the City concedes that some hookah lounge operators may go out of business as a
    result of the by-law, the by-law does not have a confiscatory effect;

·

the
    City has the authority to prohibit a business in any event;

·

the
    by-law does not conflict with or frustrate the operation of the
Occupational
    Health and Safety Act
, R.S.O. 1990, c. O.1 (
OHSA
); and

·

the
    City did not act in bad faith.

[4]

The application judge held that the City had the authority to pass the
    by-law and that the by-law was valid.

[5]

The appellants appeal from the judgment dismissing their application.
    The City agreed to suspend the operation of the by-law pending the outcome of
    this appeal.

[6]

For the reasons that follow, the appeal is dismissed.

B.

Issues on appeal

[7]

The appellants raise three grounds on appeal.

[8]

First, they submit that the application judge erred in determining that
    the purpose of the by-law was the protection of health. They characterize the
    purpose of the by-law as the prohibition of hookah lounges, a purpose they say
    is beyond the Citys legislative competence.

[9]

Second, the appellants submit that regardless of the purpose of the
    by-law, it infringes on their property and civil rights to an extent not
    permitted by the
City of Toronto Act
or the common law.

[10]

Third, the appellants submit that the application judge erred in
    concluding that the by-law does not conflict with or frustrate the purpose of
    the
OHSA
.

[11]

We address each of these issues in turn.

(1)

The purpose of the by-law

[12]

The appellants submit that the purpose of the by-law must be determined
    having regard not only to its apparent purpose, but also its effect. They
    characterize health and safety concerns as the
motive
for the by-law,
    but submit that the effect of the by-law is the closure of many, if not most of
    the appellants businesses, and that this is determinative of the by-laws
    purpose.

[13]

The appellants do not submit that the Citys stated purpose  the protection
    of health and safety  is somehow colourable, but say that the primary effect
    of the law will be the closing of hookah lounges, and that this overwhelms the
    Citys health and safety motive when characterizing the purpose of the by-law.

[14]

This argument must be rejected.

[15]

As the application judge noted, the appellants are licensed by the City
    to sell food and may continue to do so. Indeed, they may continue to sell
    shisha. What they cannot do is to permit the smoking of hookah pipes on their
    business premises. There is no doubt that many hookah lounges will suffer
    economic harm as a result of the by-law and may no longer be economically
    viable, but it does not follow that this is the by-laws purpose. The
    protection of public health and safety necessarily has economic impact on the
    operation of the appellants businesses, but that impact is incidental to,
    rather than determinative of, the purpose of the by-law.

[16]

The application judge reviewed the background to the passage of the
    by-law, including the evidence of the Citys Medical Officer of Health, who
    reported to the City Council that hookah smoke was a health hazard to staff and
    patrons of establishments where it was smoked  regardless of what was smoked
    in the hookah. He noted that hookah smoking included some of the same
    carcinogenic chemicals associated with tobacco, and yet many wrongly assumed
    that hookah smoking was less harmful than smoking tobacco. The Medical Officer
    prepared a comprehensive report for the Board of Health that reviewed
    legislative responses from other jurisdictions in Canada and abroad, and
    recommended that hookah smoking in businesses licensed by the City be prohibited.

[17]

In short, there was ample support in the record for the application
    judges conclusion that the purpose of the by-law was the protection of public
    health and safety, a purpose specifically authorized by s. 8(2) of the
City
    of Toronto Act
.

[18]

That is sufficient to dispose of this ground of appeal. It is not
    necessary to determine whether the City has the broader power to prohibit the
    operation of a business.

(2)

Does the by-law infringe property and civil rights?

[19]

The appellants submit that the Citys by-law making power has to be given
    a limited reading in order to minimally impair their common law property
    rights. The appellants describe the legislation as in effect targeting and
    destroying their business property without compensation, a result that should
    be avoided in the absence of clear language in the
Act
or proof that
    the prohibition was necessary or essential to achieve the health and safety
    purpose.

[20]

We disagree.

[21]

The
City of Toronto Act
establishes broad by-law making
    authority. It is not to be given the narrow construction advocated by the
    appellants:
Toronto Livery Association v. Toronto (City)
, 2009 ONCA
    535, 253 O.A.C. 56, at paras. 29-30.

[22]

There is no basis to impugn the application judges finding that the
    by-law was not confiscatory in any event. This is not a case in which the City
    has taken something from the appellants, nor is the by-law tantamount to an
    expropriation. The by-law regulates business establishments otherwise licensed
    by the City. In no sense can the by-law be said to confiscate the appellants
    property.

(3)

Does the by-law conflict with or frustrate the
Occupational Health
    and Safety Act
?

[23]

There is no merit to the appellants submission that the
    by-law conflicts with or frustrates the purpose of the
OHSA
.

[24]

The by-law protects the health and safety of patrons as well as
    employees of businesses. It does not render compliance with the
OHSA
impossible, or even more difficult. On the contrary, the by-law is
    complementary to both the purpose and the provisions of the
OHSA
. Contrary
    to the appellants submission, the
OHSA
does not require the City to
    adopt measures short of a prohibition on hookah smoking in order to protect employment
    in hookah lounges.

C.

Conclusion

[25]

The application judge was alive to the hardship the passage of the
    by-law may occasion for the appellants. However, he recognized that it was not
    the courts role to second-guess policy decisions made by elected municipal
    officials. The
City of Toronto Act
specifically immunizes by-laws
    against judicial review for reasonableness: s. 213. The application judge was
    limited to determining the legal validity of the citys by-law, and he made no
    errors doing so.

[26]

The appeal is dismissed.

[27]

By agreement of the parties, each side will bear its own costs.

K.M. Weiler J.A.

K. van Rensburg
    J.A.

Grant Huscroft
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: 1220510 Ontario Inc. v. Radium-O Developments Ltd.,
    2017 ONCA 490

DATE: 20170613

DOCKET: C63210

MacPherson, Blair and MacFarland JJ.A.

BETWEEN

1220510 Ontario Inc.

Applicant/Respondent
    by

Counter-Application (Respondent)

and

Radium-O Developments Ltd.

Respondent/

Counter-Applicant
    (Appellant)

Gregory Gryguc, for the appellant

Leonardo Mongillo and Sim Chahal, for the respondent

Heard: June 12, 2017

On appeal from the judgment of Justice Ruth E. Mesbur of
    the Superior Court of Justice, dated December 15, 2016.

REASONS FOR DECISION

[1]

The appellant Radium-O Developments Ltd. appeals from the judgment of
    Mesbur J. of the Superior Court of Justice dated December 15, 2016. In her
    judgment, the motion judge enforced a settlement between the parties.

[2]

The respondent 1220510 Ontario Inc. lent $6,000,000 to the appellant in
    a vendor take back mortgage. The mortgage matured on May 7, 2016. The appellant
    had not paid the principal owing and was in default as of that date. The
    respondent started an application for the appointment of a receiver.

[3]

After some negotiations, the respondent made a settlement offer for a
    total amount of $6,162,950.45. This amount included principal, interest, three
    months interest compensation, receivership and legal fees, other fees and
    taxes. The payment had to be made in full by July 8, 2016. The offer contained
    this condition:

[I]f there are any reservations, conditions, qualifications or
    protests attached to the Total Amount Due the payment shall be rejected and
    returned. Payment unreservedly of the Total Amount Due (above) by your and
    acceptance by my client, shall constitute a full and final consensual waiver by
    your client of your clients rights thereafter, if any, to make any
    re-imbursement claim, litigation related or otherwise, for the Total Amount Due
    (above), or any part, portion or fractional amount thereof, to be returned,
    recovered, repaid, assessed, reconsidered or in any way whatsoever recouped in
    favour of your client the defaulting mortgagor.

[4]

On July 8, 2016, the appellant paid the full amount and asked for a
    discharge. The respondent discharged the mortgage.

[5]

On July 11, the appellant disputed the amount charged, specifically the
    legal fees and discharge costs. On August 8, the appellant delivered a costs
    assessment notice. On August 12, the appellant commenced a counter-application
    seeking to be relieved of paying the three months interest compensation and
    receivership costs.

[6]

The respondent moved to enforce the settlement. The motion judge granted
    the motion. With respect to the appellants position, she said:

The respondent cannot now keep the benefit of the discharge and
    protest, after the fact how much was paid. The terms of the offer were clear.
    The respondent accepted them, delivered the funds without condition or protest,
    and took the benefit of the discharge.

[7]

The appellant appeals on two grounds.

[8]

First, the appellant asserts that the motion judge erred in finding that
    there was a settlement because the transaction was unconscionable; the
    appellant had no choice but to pay and the respondent used its position to
    charge for extra fees and costs.

[9]

We do not accept this submission. An agreement to settle an action is a contract.
    Here there was offer and explicit acceptance. Moreover, the appellant received
    the consideration it bargained for  a discharge of the mortgage.

[10]

Second, the appellant contends that the motion judge erred by approving
    the costs and fees relating to the respondents steps in pursuit of the
    appointment of a receiver. These costs and fees, say the appellant, are in the
    nature of a penalty and violated s. 8 of the
Interest Act
, R.S.C.
    1985, c. I-15.

[11]

Again, we are not persuaded by this submission. The steps taken to
    potentially appoint a receiver were entirely reasonable in light of the
    appellants default. And the three months interest compensation did not
    violate s. 8 of the
Interest Act
: see
Mastercraft Properties Ltd.
    v. EL EF Investments Inc.
(1993), 14 O.R. (3d) 519 (C.A.) and
Irwin
    Mintz, In Trust v. Mademont Yonge Inc. and Paul Montgomery
, 2010 ONSC 116.

[12]

The appeal is dismissed. The respondent is entitled to its costs of the
    appeal fixed at $20,000, inclusive of disbursements and HST.

[13]

For the sake of completeness, and in accordance with the agreement of
    the parties, we confirm that the costs assessment in the Superior Court of
    Justice is now moot.

J.C. MacPherson J.A.

R.A. Blair J.A.

J. MacFarland J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: 2441472 Ontario Inc. v. Collicutt Energy Services,
    2017 ONCA 452

DATE: 20170605

DOCKET:
C61735

Juriansz, Lauwers and Hourigan JJ.A.

BETWEEN

2441472 Ontario Inc.

Appellant

and

Collicutt Energy Services Corp.

Respondent

K. William McKenzie, for the appellant

Howard D. Krupat and Brendan Clancy, for the respondent

Heard: March 31, 2017

On appeal
from the decision of the
    Honorable Justice Robert MacKinnon J. of the Superior Court of Justice dated
    January 22, 2016 with reasons reported at 2016 ONSC 566
.

Lauwers J.A.:

[1]

The respondent Collicutt Energy Services Corp
    sold a piece of equipment known as a heat and power package and chiller HVAC to
    the appellant 2441472 Ontario Inc. (244) for about $520,000. The full amount
    of the purchase price was not paid.

[2]

The appellants failure to pay spawned a number
    of actions which led to five motions before the motion judge. In one of them,
    the appellant challenged Collicutts assertion that it had a valid purchase
    money security interest in the equipment registered under the
Personal
    Property Security Act,
R.S.O. 1990, c. P.10 (PPSA). It moved for an
    order to strike out and declare void the PPSA registration
. The
    appellant appeals the motion judges order dismissing the appellants motion.

[3]

244 is the plaintiff and Collicutt is the defendant in the action in
    which Collicutts motion was brought.  In the action 244 claims damages in the
    amount of $2,500,000, punitive damages in the amount of $1,000,000 and
    injunctive relief restraining Collicutt from interfering with 244s business
    relations. The statement of claim asserts that the equipment Collicutt
    delivered to 244 was late and inadequate. The claim for damages relates to
    delay and unforeseen costs. The claim for punitive damages is based on alleged
    interference with 244s business relations. Collicutt counterclaims for damages
    because 244 did not pay for the equipment in full.

A.

The Order under Appeal

[4]

The appellant argued on the motion below that since
    the alleged security agreement was never signed by Collicutt, it is not a valid
    security agreement, and therefore it is not effective to create a security
    interest under the PPSA.

[5]

On this issue, the motion judge gave the
    following reasons, at paras. 5-9:

Collicutt registered a Financing Statement on the
PPSA
system on June 15, 2015, recording the agreement between itself, 244, and
    2363265 Ontario Inc. (herein "236"). A Financing Change Statement was
    registered June 29, 2015.

Plaintiff's counsel argues that, since there was never any
    produced signed security agreement between his client and Collicutt, both
    financing statements were improper and both should be vacated. He points to s.
    11(2)(a) of the
PPSA
which in its material parts provides that the
    debtor must have signed a security agreement. He argues there was none. I
    disagree.

On April 9, 2014, Mr. Kocken, a principal of both 244 and 236,
    executed a Credit Application and Terms and Conditions of Sale which provided
    that title to, property in and ownership of the parts sold remain with
    Collicutt until all amounts were paid. Mr. Kocken signed on behalf of MCS
    Energy as that company's "VP" operations. MCS Energy is a business
    name of 236 and is a named defendant in Collicutt's Toronto trust action.

By December 12, 2014, Collicutt was issuing invoices to MCS Energy
    ("236") relating to its supply of the Heat and Power Package. Those
    invoices reserved title to the vendor. On that date Mr. Clydesdale, a principal
    of both MCS Energy and 244, directed Collicutt to re-issue its invoices to 244,
    rather than to 236. In addition, on June 5, 2015, Mr. Kocken on behalf of 244,
    signed an Equipment Purchase Agreement relating to that Heat and Power Package.
    It provided that title in the collateral at all times remained exclusively with
    Collicutt until its customer's payment in full of all amounts due was made. The
    security interest granted was a purchase money security interest (PMSI).

When considered as a whole these three documents satisfy me
    both that 236 and 244 intended to grant and did grant in writing to Collicutt a
    security interest in the Heat and Power Package. Accordingly, the plaintiff's
    motion for a discharge of Collicutt's security interest in that package is
    dismissed.

[6]

The appellant submits that the motion judge
    erred in law because under the PPSA there must be a security agreement signed
    by the appellant in favour of the respondent before notice may be registered
    under the PPSA security registration system.

[7]

The respondent disputes that submission on the
    merits, but also raises a procedural issue, arguing that this court has no
    jurisdiction over the appeal because the motion judges decision is
    interlocutory and the appeal should have been brought to the Divisional Court
    under s.19(1) of the
Courts of Justice Act,
R.S.O. 1990, c.
    C.43
.

B.

The Issues

[8]

The appeal raises two issues. The first is
    whether the order under appeal is final, giving this court jurisdiction to hear
    the appeal, or whether it is interlocutory and falls within the Divisional
    Courts jurisdiction under the
Courts of Justice Act
. The second issue is whether the motion judges order was correct.
    In view of my determination that the order is interlocutory, I do not reach the
    second issue.

C.

Is the Order under appeal interlocutory or
    final?

(1)

The Governing Principles

[9]

An interlocutory order is one that does not determine the real matter in
    dispute between the parties. It does not determine the very subject matter of
    the litigation, but rather only a collateral matter:
Hendrickson v. Kallio
,
    [1932] O.R. 675, at p. 678. The classic test is whether the order finally
    disposes of the rights of parties:
Hendrickson
, at p. 680.
    Furthermore, an order that disposes of an issue raised by the defence, thereby
    depriving the defendant of a substantive right that could be determinative of
    the entire action, is final:
Ball v. Donais
(1993), 13 O.R. (3d) 322
    (C.A.).

(2)

The Arguments on Appeal

[10]

The appellant argues that the order was final because the judge
    said there was a security agreement, decision that will bind the appellant in
    the lawsuit. The order finally
disposes of a substantive issue
    in the case, which is whether the respondent has a valid security interest in
    the equipment.
The order is therefore final unless this court reverses
    it.

[11]

The
    respondent argues the order was interlocutory for four reasons. First, the
    order did not determine any real matter in dispute between the parties. Second,
    the order did not terminate the action. Third, the order determined only a
    collateral issue because the PPSA registration is not referred to in any of the
    pleadings but only arose on the motion. Fourth, the order does not determine a
    claim or defence. The respondent asserts that the PPSA registration only
    determines what remedy might be available to the appellant if it is successful
    in the lawsuit. It is no more final than an order for security for costs or a
    preservation order.

(3)

The Principles Applied

[12]

I
    conclude that the order below was interlocutory for the following reasons.

[13]

The
    notice of motion giving rise to the decision below sought, an order striking
    out, vacating, or declaring void all PPSA registrations which were registered
    by the Defendant against the Plaintiff. The ground offered in the support of
    this request asserted that [t]he Defendant has no security interest in the equipment
    which is listed in the PPSA registration and does not have a security agreement
    for any equipment.

[14]

The
    jurisdictional basis for this aspect of the motion, nor any other aspect of it,
    was not pleaded. In particular, no sections of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194, nor the PPSA were mentioned. The motion was not framed
    as a motion for summary judgment or the determination of an issue before trial.

[15]

The
    motion judge dismissed the PPSA aspect of the motion. The provision in the
    formal order relating to it simply reads:

THIS COURT ORDERS THAT the Plaintiffs motion for a discharge
    of the Defendants security interest in the Heat and Power Package is
    dismissed.

[16]

As
    this court noted in
Ashak v. Ontario (Family Responsibility Office)
,
    2013 ONCA 375, 115 O.R. (3d) 401, at para. 13, in most instances, the content
    of the formal order is integral to determining what has been decided against a
    party in a fashion that is binding. It is well-established that an appeal lies
    from the order, not from the reasons given by the judge making it:
Ashak
,
    at para. 13;
Grand River Enterprises v. Burnham
(2005), 197
    O.A.C. 168 (C.A.), at para. 10.

[17]

In
    the summary judgement context, this court has said that purported findings of
    fact or law by a motion judge who dismisses a summary judgment motion do not
    have binding effect in the subsequent proceeding unless the judge invokes the
    power to make such findings under rr. 20.04 or 20.05:
Skunk v. Ketash
,
    2016 ONCA 841, 94 C.P.C. (7th) 141, at paras. 35-36. A motion judge who intends
    to make such findings should specifically say so, and the order should refer to
    the relevant rule:
Skunk
, at paras. 35-36.

[18]

In
    his reasons for dismissing the motion for discharge of the respondents PPSA
    registrations, the motion judge engaged in an analysis of whether or not a
    valid security interest existed. He considered whether an agreement between the
    parties gave rise to a security interest. He purported to find that there was a
    valid security agreement between the parties, and dismissed the motion.

[19]

However,
    in the absence of explicit language from the motion judge finally determining
    the enforceability of any agreement between the parties, I am not persuaded
    that the motion judge did so. While he referred to documents passing between
    the parties, he only did so in support of his conclusion that there was no
    basis to discharge the PPSA registration. The motion judge simply expressed his
    reasoning for dismissing the motion. The formal order does not contain any
    final determinations, nor is there a disposition section in the reasons which
    purports to do so. The formal order simply dismisses the motion.

[20]

Moreover,
    the validity of the PPSA registration is not the real issue in dispute between
    the parties. The real issue is who owes what to whom in relation to the
    equipment and its alleged deficiencies. The existence of, or basis for, a
    security interest in the equipment is not addressed in the statement of claim
    or in the statement of defence and counterclaim. Collicutts counterclaim
    claims, amongst other relief, damages for breach of contract. The issue of the
    enforcement of the net debt, if any, owed to Collicutt is derivative to, and not
    determinative of, the real issue.

[21]

The
    order is interlocutory. This court has no jurisdiction over the appeal and it
    is quashed with costs payable by the appellant to the respondent in the amount
    of $5,000 inclusive of disbursements and taxes. However, the appellant is free
    to pursue an appeal to the Divisional Court.

Released: RGJ JUN 05 2017

P. Lauwers J.A.

I agree. R. G.
    Juriansz J.A.

I agree. C.W.
    Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Allto Construction Services Ltd. v. Toronto and Region Conservation Authority, 2017 ONCA 488

DATE: 20170612

DOCKET: C61686

Weiler, van Rensburg and Huscroft JJ.A.

BETWEEN

Allto Construction Services Ltd.

Plaintiff/Appellant

and

Toronto and Region Conservation Authority,
Aplus
    General Contractor Inc.
, Peter Martins, Accent Building Sciences, and Naji
    Hassan

Defendants/
Respondent

Doug LaFramboise, for the appellant

Lena Wang, for the respondent

Heard: June 5, 2017

On appeal from the order of
    Justice P. Sutherland of the Superior Court of Justice, dated January 11, 2016.

REASONS FOR DECISION

[1]

The appellant Allto Construction Services Ltd.
    (Allto) sued the respondent Aplus General Contractor Inc. (Aplus) for
    $163,202.98, the amount alleged to be owing under a subcontract to install a
    sewage system during the construction of a pool for the Heart Lake Conservation
    Area for the Toronto and Region Conservation Authority (the Owner).
The
    appellant appeals the trial judgment dismissing its claim.

[2]

At the conclusion of oral argument, we allowed
    the appeal for reasons to follow. These are those reasons.

Discussion

[3]

In our view the trial judge erred in principle
    when he concluded that the appellant did not prove it was owed the amount it
    claimed.

[4]

In its amended statement of defence Aplus denied
    owing the amount claimed, pleaded that during its work Allto damaged an on-site
    irrigation system for which Aplus incurred repair expenses of $33,611.85, and
    asserted that Allto had overbilled Aplus $5,135.85 for additional risers which
    were included within its original scope of work. Aplus asserted a set-off and
    counterclaim in the amount of $38,747. Allto also pleaded that it was a term of
    the parties contract that payment would be made only if and when Aplus
    received payment for the work from the Owner. While the original statement of
    defence asserted that Allto had not yet been paid by the Owner, this was
    removed from the amended pleading.

[5]

In her opening to the trial judge, Apluss
    counsel described the theory of the defence case as quite simple  that Allto
    had overbilled Aplus (for an extra for risers) and that Allto damaged the
    irrigation system as part of its work, did not fix the damage and that Aplus
    incurred expenses to repair the damage.

[6]

Two witnesses testified at trial. The
    appellants witness, Larry Acchione, identified the purchase order issued by
    Aplus. He testified that the work had been performed. He confirmed, under
    cross-examination, that Allto was owed the amount claimed in the statement of
    claim ($163,202.98). The respondents witness, Sanjeev Desai, did not
    contradict any of this evidence and confirmed the work had been performed
    without deficiencies.  By the end of the trial it was obvious that Allto was
    not claiming for the amount that Aplus asserted was an extra. The only material
    point of dispute in the evidence was with respect to whether Aplus had damaged a
    sprinkler head in the irrigation system, and the cost of its repair.

[7]

In his reasons for judgment dismissing the
    action, the trial judge stated that the evidence showed, on a balance of
    probabilities, that the parties entered into a contract for a price of
    $288,150, that Allto performed the work with no deficiencies, and that there
    was an amount outstanding for the work it performed. He referred to submissions
    that there was no evidence at trial of invoices for the work performed or an
    accounting of the amount billed by Allto and paid by Aplus. The trial judge
    dismissed Alltos claim after finding that Allto failed to meet its burden to
    satisfy the court it was owed the amount claimed in the statement of claim.

[8]

The trial judge also dismissed Apluss
    counterclaim. He found that Allto had damaged the irrigation system, but
    rejected Apluss evidence on the repair cost of $33,611.85, as well as the
    argument that the repair cost had been admitted by Aplus.

[9]

In our view, the trial judges reasons
    demonstrate reversible error. The central issue in this case was whether Allto
    caused damage to an irrigation system sprinkler head, if so, the reasonable
    cost of repair, and whether Aplus was entitled to a set-off for this amount
    from the balance of the contract price. While Aplus denied the amount owing, it
    admitted the contract (which it confirmed through a purchase order), and
    Alltos performance of the work. Other than the claimed set-offs, there was no
    other credit claimed by Aplus. Mr. Acchione provided oral evidence that the
    amount claimed had not been paid. In the circumstances of this case, this was
    sufficient to establish Alltos outstanding claim. There was no requirement for
    any further proof through invoices or a statement of account.

[10]

The respondent asked that, if this court were to
    allow the appeal, any judgment should be reduced by the cost of its repairs to
    the irrigation system, notwithstanding that its counterclaim was refused by the
    trial judge and there is no cross-appeal. The respondent says that the trial
    judge erred in rejecting its evidence on this issue, and in failing to give
    effect to deemed admissions from an unanswered request to admit. We do not give
    effect to this argument.

[11]

First, the respondents claim for set-off was not
    made out on the trial record. The trial judge charitably described Apluss
    evidence of the cost to repair the damaged sprinkler head as unreliable. On
    its face, Apluss documentation was suspect and the amount for the repair of a
    sprinkler head unreasonable. Second, the trial judge was entitled to interpret
    the deemed admissions as he did  as admitting an entitlement to a back-charge
    but not a right to the amount the respondent claimed.

[12]

In these circumstances, there is no basis for a
    set-off to the amount claimed by the appellant.

Disposition

[13]

The appeal is therefore allowed. The appellant
    shall have judgment for the sum of $174,518.38. This amount includes
    pre-judgment interest under the
Courts of Justice Act
, R.S.O. 1990, c.
    C.43
.
in the sum of $11,315.40, calculated at the rate of 1.3% per annum
    from the date of issuance of the statement of claim, February 7, 2012.

[14]

The trial judges costs award is set aside and
    the appellant shall have its costs of the action in the sum of $16,000. Costs
    of the appeal to the appellant in the sum of $7,800, inclusive of HST and
    disbursements.

K.M. Weiler J.A.

K. van Rensburg J.A.

Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Amyotrophic Lateral Sclerosis Society of Essex

County v. Windsor (City), 2017 ONCA 555

DATE: 20170630

DOCKETS: C63030, C63032, C63246,
    C63247 and M47662

Hoy A.C.J.O., van
    Rensburg and Roberts JJ.A.

BETWEEN

Amyotrophic Lateral Sclerosis Society of Essex
    County

Plaintiff/Appellant

and

The Corporation of the City of Windsor

Defendant/Respondent

BETWEEN

Belle
    River District Minor Hockey Association Inc.

and Essex County Dancers
    Incorporated

Plaintiffs/Appellants

and

The Corporation of the City of Tecumseh

Defendant/Respondent

Robert B. Bell and Brian N. Radnoff, for the appellants

Brendan van Niejenhuis and Fredrick Schumann, for the
    respondents

Heard: June 20, 2017

On appeal from the orders of Justice Terrence Patterson
    of the Superior Court of Justice, dated November 1, 2016 and January 13, 2017.

van Rensburg
    J.A.:

[1]

These appeals arise in the context of related class actions, commenced
    in 2008 and certified in 2012, that are being case managed by Patterson J. (the
    case management judge).

[2]

The appellant charitable organizations seek remedies for what they
    characterize as unconstitutional or illegal taxation by the respondent
    municipalities. They take issue with bingo license and administration fees the
    municipalities charged.

[3]

The appeals are from four orders of the case management judge, two in
    each proceeding.

[4]

First I will deal with the orders dated January 13, 2017, granting a
    motion to lift orders in the two proceedings dated June 9, 2016, protecting
    from disclosure the identities of persons who opted out of the class (the
    protective orders). The respondents moved to quash the appeals to this court
    on the basis that the orders lifting the protective orders are interlocutory
    and that the route of appeal is to the Divisional Court with leave, under s.
    19(1)(b) of the
Courts of Justice Act
, R.S.O. 1990, c. C.43. The court
    granted the motion to quash these appeals, with reasons to follow.

[5]

Second, I will address with the appeals of orders of the case management
    judge dated November 1, 2016, refusing leave to the appellants to amend their
    amended statements of claim. These appeals were dismissed following oral
    argument, with reasons to follow.

A.

Motion to Quash: Appeals of the January 2017 Orders

[6]

Some background to the January 2017 orders is useful. The proceedings
    were certified as class actions in 2015. The opt-out period ran from January 15
    to May 15, 2016. The respondents organized a campaign to encourage class
    members to opt out. The case management judge determined the respondents went
    over the line and created undue influence, and consequently ordered that
    those who had opted out be given a reconsideration period, which ran from
    August 11 to October 10, 2016.

[7]

During the reconsideration period, the case management judge ordered the
    respondents not to communicate further with class members. Separately, and on
    consent, the protective orders were made, permitting the respondents counsel
    to know the number and identities of opt-outs, but preventing them from sharing
    this information with their clients. The protective orders also provided for
    any information filed with the court revealing the identity of opt-outs to be
    sealed, however no such information was filed.

[8]

Once the reconsideration period ended, the respondents counsel sought
    to lift the protective orders so they could share the opt-out information with
    their clients. They asserted the protective orders were interim only for the
    reconsideration period, which had expired. Class counsel did not oppose the
    provision of information as to the number and identities of opt-outs to the
    respondents clients, but sought conditions to protect the confidentiality of
    such information and a declaration that the implied and deemed undertaking
    rules applied to the information concerning the opt-outs. Class counsel argued
    that if the identities of the opt-outs were disclosed, the public would be able
    to deduce the identities of the class members.

[9]

The case management judge ordered that the protective orders be lifted
    immediately. He characterized the protective orders as similar to sealing
    orders and, in determining whether the protective orders should be continued or
    lifted, applied the test in
S
ierra Club of Canada v.
    Canada (Minister of Finance)
, 2002 SCC 41, [2002] 2 S.C.R. 522
, requiring
    a serious risk to an important interest. He concluded that there was
    insufficient evidence of a serious threat to the commercial interests of the
    appellants in this case. He observed that, while anonymity is part of class
    actions, and it is not unusual that a potential class members identity is not
    known in the early stages of a class action, the identity of the class members
    would become public in any event when they proved their claims, and at an
    earlier stage if leave were granted to conduct cross-examinations. The case
    management judge concluded that, in any event, the protective orders were made
    on an interim basis and only related to the reconsideration issue, which had
    expired.

[10]

In their appeals, the appellants assert that the case management judge
    erred in treating the motion as if it were a request for a sealing order and in
    failing to consider whether the implied or deemed undertaking rules apply to
    the information at issue and whether any conditions should be imposed on the
    respondents with respect to the use of the information.

[11]

As the point of departure, I note that the January 2017 orders were made
    in the case management judges exercise of his authority under s. 12 of the
Class
    Proceedings Act, 1992
, S.O. 1992, c. 6 (the CPA).  The fact that the
    protective orders and the January 2017 orders were made under s. 12, which
    provides for orders to be made respecting the conduct of a class proceeding, does
    not necessarily determine the character of such orders as interlocutory. Section
    30 of the CPA provides for a non-exhaustive list of orders that may be appealed
    and the routes of appeal. There is no reference in s. 30 to orders made under
    s. 12. When a judge of the Superior Court makes an order under the CPA that is
    not referred to in s. 30, the
Courts of Justice Act

governs the
    appeal route:
Locking v. Armtec Infrastructure Inc.
, 2012 ONCA 774, 299
    O.A.C. 20, at para. 8;

Waldman v. Thomson Reuters Canada Limited
,
    2015 ONCA 53, 330 O.A.C. 142, at para. 5;
Parsons v. Ontario
, 2015
    ONCA 158, 125 O.R. (3d) 168, at para. 39.

The question here is whether
    the January 2017 orders are final and appealable to this court under s. 6(1)(b)
    or whether they are interlocutory and appealable to the Divisional Court with
    leave under s. 19(1)(b) of the
Courts of Justice Act
.

[12]

The respondents contend that the January 2017 orders are interlocutory
    because they do not determine the real matter in dispute between the parties
    the very subject matter of the litigation:
Hendrickson v. Kallio
,
    [1932] O.R. 675 (C.A.), at p. 678.

[13]

In support of their contention that the orders are final, the appellants
    make two main arguments.

[14]

First, they say that while the orders in question do not dispose of an
    issue in dispute in the litigation, they are
res judicata
and therefore final,
on the issue of
    whether the identities of opt-outs can be disclosed without any qualifications,
    and respecting the application to such information of the deemed and/or implied
    undertaking rules.

[15]

In
Waldman
,

MacFarland J.A. rejected a similar argument, stating, at para. 22, [t]his
    submission presumes that, to be a final order, an order need only dispose
    finally of whatever issue was before the motion judge irrespective of whether
    the order terminates the action or resolves a substantive claim or defence of
    the parties. Were that so, the distinction between interlocutory and final
    orders would cease to exist. Further, as stated in
Hendrickson
,
at p. 678
, an interlocutory order may be final in the sense that it determines
    the very question raised by the application but it is interlocutory if the
    merits of the case remain to be determined.

[16]

Stoiantsis v. Spirou
, 2008 ONCA 553, 91 O.R. (3d) 184, a
    decision relied on by the appellants, involved an order that determined a
    preliminary factual matter in a medical malpractice action. Although the issues
    in the action were only partially resolved, the order was final because its effect
    was to deprive the defendants of a defence that could have been determinative
    of the entire action. Similarly, in
Almrei v. Canada (Attorney General)
,
    2011 ONCA 779, 345 D.L.R. (4th) 475, also referred to by the appellants, the
    finding, in a summary judgment motion, that issue estoppel from a prior
    proceeding did not apply, deprived the appellant of a substantive right that
    could have been entirely determinative of the defendants liability.

[17]

Here, by contrast, while the orders are
res judicata

on
    the question of whether the identities and other information concerning the
    opt-outs can be revealed, they are not
res judicata

and did not
    determine on any final basis any substantive issue or right that could be
    determinative of the action.

[18]

Second, the appellants assert that the orders are final because they
    directly affect the substantive rights of the opt-outs, who are not parties to
    the litigation. The appellants rely on
Hollinger Inc. v. The Ravelston Corp.
,
    2008 ONCA 207, 89 O.R. (3d) 721, a case involving the appeal of an order
    continuing a protective order that sealed motion material making it unavailable
    to the public. This court characterized the order as final, in the context of
    an appeal by the Globe and Mail newspaper.

[19]

The
Hollinger
case is readily distinguishable from the present
    case because it involved the final determination of the rights of a third party
    who brought an application before the court. An order that is otherwise
    interlocutory does not become final, as between the parties, simply because it affects
    the rights of a third party:
Royal Trust Corporation v. Fisherman
(2001),
    55 O.R. (3d) 794 (C.A.), at para. 12. Here the appellants are the
    representative plaintiffs in the action. The opt-outs are not parties to the
    litigation, nor, as counsel emphasized in argument before this court, are they
    represented by or owed any duties by the appellants counsel.

[20]

I therefore reject the appellants contention that, because the order may
    affect the rights of those who have opted out of the class, the order is final.
    As between the parties to the litigation, it is an interlocutory order that
    does not determine any rights or issues in the proceedings on a final basis.

[21]

Finally, the case management judge observed that the protective orders
    were interim in nature, designed to safeguard the integrity of the
    reconsideration period and that they should not outlast it. As the protective
    orders were interim only, a decision to lift a protective order that was in
    place for a period that has expired is in effect a decision not to continue a
    protective order. Such an order is interlocutory. See
Hollinger
, at
    paras. 52-59.

[22]

For these reasons the court quashed the appeals of the January 2017
    orders.

B.

Appeal: November 2016 Orders

[23]

After the opting out period had expired, the
    appellants sought to amend the statements of claim in both actions
nunc
    pro tunc
.

[24]

In the actions as currently framed, the
    representative plaintiffs seek declarations that the lottery licensing fees and
    lottery administration fees paid by the plaintiffs and the other class members
    to the defendant municipalities are taxes levied without legislative and
    constitutional authority and are
ultra vires

the defendant municipalities.  They also claim an accounting of
    lottery licensing fees and administrative fees
paid
    by the plaintiffs and other class members

from and
    after October 24, 1993, and restitution in accordance with the accounting.

[25]

The proposed amendments, in addition to the
    declarations, seek an accounting of licensing and administration fees
received by the municipalities
found to
    be levied without authority or
ultra vires
,
    and disgorgement of such fees, with an alternative claim of restitution of fees
    charged to the plaintiffs and other class members in accordance with the
    accounting. The proposed amendments respond to the opting out, and seek to
    recover for the class, fees received by the respondents from persons no longer
    in the class.

[26]

The case management judge refused the proposed
    amendments on the basis that they would fundamentally change the nature of the
    actions that had been certified. He had case managed the actions since 2008,
    and had provided three certification orders. In his opinion the language of the
    claims was clearly an action for refund of monies paid by individual class
    members. The case management judge rejected the appellants arguments that
Kingstreet
    Investments Ltd. v. New Brunswick (Finance)
, 2007 SCC 1, [2007]
    1 S.C.R. 3 supported the amendments.
Kingstreet

involved claims of individual taxpayers for recovery of user fees
    admitted to have been an unlawful tax. The court held that the plaintiffs
    claims were for recovery of taxes as a public law remedy and not based on
    unjust enrichment. The case management judge noted, among other things, that
Kingstreet
did not support the appellants argument that any tax paid gives
    rise to a claim for disgorgement of all monies received by the government for
    the entire tax paid. The case management judge also observed that the
    amendments would result in improperly taking funds from those who had opted out
    for distribution to the remaining members of the class.  The case management
    judge also refused amendments to the statements of claim to claim aggregate
    damages on the basis that such amendments were unnecessary.

[27]

The appellants advance a number of arguments on
    appeal. They say the amendments should be permitted, notwithstanding that the
    action is already certified, as the amendments do not change the character of
    the claim but only clarify the remedy they are seeking, that the amendments were
    or should have been anticipated by the respondents, and there is no prejudice. The
    appellants contend that the respondents agreed that the statements of claim
    disclosed a cause of action under s. 5(1)(a) of the CPA, at the time the
    actions were certified  and that at all times they were asserting a

Kingstreet

claim. At their highest, the amendments
    seek a different remedy (disgorgement) for the same cause of action, and should
    be permitted because no new or additional material facts are pleaded. The
    appellants contend that the remedy of disgorgement is consistent with the
    behaviour modification goal of class proceedings. They also assert that it is
    premature to consider the effect of the amendments on opt-outs, and that the
    court can, if appropriate, avoid any windfall to the plaintiffs and other class
    members that exceed the amount of illegal fees they paid to the defendants.

[28]

I would not give effect to these arguments. The
    proposed amendments are not simply the clarification of a cause of action
    already pleaded, nor do they advance a different remedy for the same alleged
    cause of action or wrong. The amendments seek to recast the claim from one for
    the return of fees paid by class members to a claim for disgorgement of
all
allegedly illegal license and
    administrative fees for bingo operations paid to the respondent municipalities
    within the class period, including those not paid by members of the class.
    Accordingly, the acknowledgment that the claim, as originally pleaded,
    disclosed a cause of action does not assist the appellants in respect of
    amendments that seek to reconfigure the claims.

[29]

Contrary to the appellants arguments, although
Kingstreet

is relevant to the claims as currently pleaded, it does
    not support the proposed amendments. While
Kingstreet

recognizes that a claim can be made for repayment of illegal taxes as
    a public law remedy, it is not authority for a claim for the disgorgement of
all
allegedly illegal fees obtained by
    the respondents during the class period, including those paid by persons other
    than class members. And, characterizing the remedy sought by the appellants as
    a disgorgement does not assist the appellants. Disgorgement permits a
    plaintiff to claim not only its own loss but also the profit or gain of the
    defendant as a result of the wrong to the plaintiff. It is not a vehicle for a
    plaintiff (or a certified class) to pursue a claim for relief owed to someone
    else, who is essentially a stranger to the action. In my view, there is no
    reasonable prospect that the appellants proposed claim for repayment of
    allegedly illegal taxes paid by persons other than class members would succeed.
    The class actions objective of behaviour modification cannot serve to justify
    an amendment that is otherwise not supportable.

[30]

I note that the appellants based their arguments
    in support of the amendments almost entirely on the authority of
Kingstreet
.
As I have explained, I agree with the
    case management judge that
Kingstreet

does
    not support the amendments the appellants seek to make at this stage of the
    already certified class proceedings. There is another aspect of the case
    management judges decision, however, that I would not endorse. At para. 20 of his
    reasons, the case management judge suggested that the Supreme Courts decision in
Alberta v. Elder Advocates of Alberta Society
,
    2011 SCC 24, [2011] 2 S.C.R. 261 narrowed the
Kingstreet

constitutional/public law remedy when illegal taxes were paid to
    cases where the statute was subsequently declared unconstitutional, and that
    the plaintiffs in this case do not claim the unconstitutionality of the
    relevant statutes, resulting in his opinion that the
Kingstreet

remedy was not available. I do not necessarily agree that
Elder
    Advocates

narrowed
Kingstreet

in the manner suggested by the case management judge, or with his
    characterization of the appellants claims in these proceedings. I do however
    agree with the balance of what he says at para. 20, that in these proceedings
    each class members claim is limited to the gain received by the defendants
    from the individual class member and that any refund would only allow the
    individual plaintiffs to recover the defendants gain attributable to the wrong
    done to them.

[31]

Finally, with respect to the proposed amendments
    to claim aggregate damages, the parties agree that the appellants will be able
    to advance such a claim in the proceedings (although the availability of
    aggregate damages is not admitted), whether or not it is asserted in the
    pleadings. Accordingly, there is no need for such an amendment.

C.

Disposition

[32]

For these reasons the appeals of the January 2017
    orders were quashed and the appeals of the November 2016 orders were dismissed.
    The respondents shall have their costs in the amounts agreed between the
    parties: $3,000 for the motion to quash and $15,000 for the dismissed appeals,
    both amounts inclusive of HST and disbursements.

K. van Rensburg J.A.

I agree Alexandra Hoy
    A.C.J.O.

I agree L.B. Roberts
    J.A.

Released: June 30, 2017


COURT OF APPEAL FOR ONTARIO

CITATION: Bakshi v. Global Credit & Collection Inc., 2017
    ONCA 548

DATE: 20170630

DOCKET: C63056

LaForme, Hourigan and Paciocco JJ.A.

BETWEEN

Sanchin Bakshi

Plaintiff (Appellant)

and

Global Credit & Collection Inc.

Defendant (Respondent)

John E. Callaghan and Kenneth Alexander for the
    appellant

David Milosevic and Caroline Garrod for the respondent

Heard: June 27, 2017

On appeal from the order Justice Edward P. Belobaba of
    the Superior Court, dated November 11, 2016, with reasons reported at 2016 ONSC
    4610.

REASONS FOR DECISION

[1]

The appellant, Sachin Bakshi, was one of several hundred debt collectors
    whom the respondent, Global Credit & Collection Inc., laid off when the
    respondent lost its contract with its most important client, Capital One. After
    the lay-offs, Capital One and the respondent entered into a settlement agreement
    (the Settlement Agreement) in which Capital One agreed to pay $6.675 million
    to the respondent in exchange for a broad mutual release of claims. The
    appellant became representative plaintiff in a class action in which the class
    of debt collectors sued the respondent. He alleged that the respondent had breached
    part of each class members employment contract (the Commission Agreement) by
    failing to pay commissions on the payment made under the Settlement Agreement.

[2]

After certification of the class proceeding, the respondent and the
    appellant each brought motions for summary judgment on the common issues. The
    motion judge awarded summary judgment in the respondents favour and thereby
    dismissed the class action.

[3]

The appellant appeals from the summary judgment order, alleging that the
    motion judge erred in: (1) interpreting the Commission Agreement as
    disentitling him from receiving any commissions while laid-off; (2)
    interpreting the payment under the Settlement Agreement as reflecting a settlement
    of the respondents potential damages claim for extraordinary expenses and
    defamation; and (3) holding that a motion for summary judgment was an
    appropriate procedure for resolving the common issues in the class action.

[4]

We are not persuaded that the motion judge made any reversible error.

[5]

Before turning to the errors alleged by the appellant, it is important
    to take note of the applicable standard of review. Neither the Commission
    Agreement nor the Settlement Agreement are standardized contracts. The
    interpretation of these agreements will have no impact beyond the interests of the
    parties before the court and we are not satisfied that there are any extricable
    questions of law. Accordingly, the standard of review is a palpable and
    overriding error:
Ledcor Construction Ltd. v. Northbridge Indemnity
    Insurance Co.
, 2016 SCC 37, [2015] 2 S.C.R. 23, at paras. 21-26.

[6]

With respect to the interpretation of the Commission Agreement, the
    appellant submits that the motion judge overlooked the fact that he remained an
    employee of the respondent during his temporary lay-off. He relies on s. 56(4)
    of the
Employment Standards Act, 2000
, S.O. 2000, c. 41, in support of
    his position that the Notice of Temporary Lay-off he received from the
    respondent did not terminate his employment because the respondent did not
    specify a recall date and promised to continue to provide employment benefits
    to him. Given that he remained employed during the temporary lay-off, the
    appellant submits that the motion judge erred when he reasoned that the
    employment contract did not entitle him to commissions during periods when he was
    not working the account.

[7]

We do not accept this argument. We agree with the submission of the
    respondent that the motion judge did not dismiss the claim under the Commission
    Agreement based on a finding that a collector had to be employed or actively working
    an account to be entitled to commissions. The dispositive finding was that a
    collector had to exceed a breakeven financial target set by the respondent to
    be entitled to commission, and a laid-off employee could not possibly be
    collecting monthly payments sufficient to exceed the monthly breakeven
    requirement. Exceeding ones breakeven multiple was a condition of commission
    entitlement under the Commission Agreement. It required at a minimum,
    collection of three times an employees salary. The commissions were not
    earned because the employees could not comply with that condition as they
    were not engaged in collection. We see no palpable and overriding error in the
    motion judges analysis on this point. Accordingly, there is no basis for
    appellant interference.

[8]

The motion judge found that the Settlement Agreement was a settlement of
    a potential damages claim for extraordinary expenses and defamation that the
    respondent was actively considering, arising out of a lawsuit the respondent
    was threatening based on Capital Ones conduct leading to the severance of
    their business relationship: see para. 33 of his reasons. The motion judge acknowledged
    that Capital Ones recitation in the consideration provision stated that the
    $5.7 million was payment for US and Canadian Card payments. He also referred
    to a statement by Capital One that in offering this payment it had used the
    present value of the amount that the respondent would have earned on its U.S.
    and Canadian accounts with Capital One had Capital One not terminated their
    relationship. However, he concluded that a reasonable interpretation of Capital
    Ones statement was merely that Capital One had used that formula for its own
    internal book-keeping purposes in quantifying what it would be prepared to pay
    by way of settlement.

[9]

The appellant submits that the motion judge erred in his interpretation
    of the Settlement Agreement by considering evidence tendered by the respondent
    regarding its subjective intent in entering into the contract and in not
    recognizing that there was no admissible evidence before him that suggested in
    any way that Capital One viewed the settlement as being for defamation or
    extraordinary expenses. It is the appellants submission that properly
    interpreted the payment provided for in the Settlement Agreement was designed
    to reflect the loss of revenue on the return of post-dated cheques to Capital
    One and, accordingly, it was to be included in the calculation of commissions.

[10]

In our view, it is unnecessary to consider these submissions. Even if the
    Settlement Agreement could be interpreted as including a payment for returned
    post-dated payments, given our conclusion on the first issue that the class
    members had not earned any commissions, they would not be entitled to receive
    any commissions on such a payment.

[11]

Finally, we are not persuaded that the motion judge erred in determining
    this case on the basis of a summary judgment motion. It was the appellants
    counsel who wrote to the motion judge to state that the parties agreed that the
    motion judge had sufficient evidence before him to decide whether all or any
    part of the Settlement Agreement was for commissions on post-dated payments.
    The appellant never argued in the court below that summary judgment was
    inappropriate. Indeed, he brought his own motion for summary judgment of the
    common issues.

[12]

The appeal is dismissed. The respondent as the successful party is
    entitled to its costs of the appeal, which we fix at the agreed upon sum of $20,000,
    plus disbursements.

H.S.
    LaForme J.A.

C.W. Hourigan J.A.

David M. Paciocco
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Bajouco v. Green, 2017 ONCA 493

DATE: 20170615

DOCKET: M47338 (M46187)

Strathy C.J.O., Brown and Huscroft JJ.A.

BETWEEN

Florips Bajouco

Moving Party

and

Cindy Green

Responding Party

Florips Bajouco, acting in person

George Pakozdi, for the responding party

Heard: In writing

REASONS FOR DECISION

A.

Motion before this Court

[1]

Florips Bajouco moves for reconsideration of this courts decision denying
    leave to appeal, pursuant to rule 59.06(2) of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194, relying on fresh evidence and alleging fraud. The
    responding party, Cindy Green, seeks an order prohibiting Ms. Bajouco from
    making further motions in this proceeding without leave.

[2]

While this motion was under consideration by the court, Ms. Bajouco
    wrote to the Registrar of the court making unsworn allegations relating to this
    matter. We decline to consider this correspondence.

B.

Background

[3]

Ms. Bajouco and Ms. Green are neighbours. Ms. Green claimed damages as a
    result of flooding of her basement bathroom on four occasions between 2011 and
    2013. Before the Small Claims Court, Ms. Green alleged that her basement was
    flooded because of the periodic detachment of a downspout on Ms. Bajoucos
    property. Ms. Bajouco denied that her downspout was responsible for the
    flooding. She instead suggested that the flood might have been caused by sewer
    backup, water flow from the street, or Ms. Greens own downspout.

[4]

The trial judge found in favour of Ms. Green and awarded damages of
    $8,800.77, plus costs and disbursements of $1,515.12.

[5]

Ms. Bajouco appealed to the Divisional Court. The Divisional Court
    dismissed her appeal and ordered costs against her in the amount of $3,000. It
    noted, at para. 9:

Although Bajouco has raised several issues on her appeal, most
    of them seek to impugn the trial judges assessment of the evidence at trial
    and to have this Court rehear the case. In my view, none of the points argued
    on behalf of Bajouco amount to demonstrating any reversible error of law or
    palpable or overriding error with respect to any findings of fact made by the
    trial judge or with respect to her application of the law to those facts.

[6]

Ms. Bajouco sought leave to appeal to this court. This court denied her motion
    for leave to appeal on June 29, 2016.

[7]

Ms. Bajouco brought a motion seeking a stay of proceedings pursuant to
    rule 63.02 pending disposition of her motion for reconsideration. Justice Pardu
    denied the stay on February 22, 2017. She held, at para. 27, that [g]iven the
    nature of the factual issues now raised, the absence of any error by the
    Divisional Court and the hurdle faced by the moving party in obtaining a change
    in the decision of this court refusing leave, I am not persuaded that a stay of
    enforcement should be granted.

[8]

In seeking reconsideration of this courts decision denying leave to
    appeal, Ms. Bajouco relies on alleged fresh evidence she says she discovered in
    August 2016. According to Ms. Bajouco, this evidence is crucial to the
    decision made at the [Small Claims Court] trial. She also alleges Ms. Green
    committed fraud.

C.

Analysis

[9]

Before considering the test for granting leave to appeal, it is
    necessary to consider the alleged fresh evidence that Ms. Bajouco seeks to
    adduce.

(1)

Fresh Evidence

[10]

Ms. Bajouco seeks to adduce a floor plan that she claims shows that Ms.
    Greens bathroom is located on the west side of the basement, rather than the
    east. Ms. Bajouco argues that this is contrary to Ms. Greens testimony before
    the Small Claims Court. This is supposedly relevant because Ms. Greens
    downspout is on the west wall and Ms. Bajoucos downspout is on the east wall.

[11]

Ms. Bajouco also says that the bathroom is directly over Ms. Greens
    sewer line. From this, she asserts that either Ms. Greens own downspout or back-up
    water from the sewer caused the flooding.

[12]

Ms. Bajouco also relies on a photograph that she claims demonstrates the
    City of Toronto found 50 percent calcium obstruction in the sewer line. She
    submits that the calcium obstruction could have caused the flooding. The photograph
    provided by Ms. Bajouco is dated July 30, 2016. She also provides photographs
    depicting work performed by the City of Toronto on the sewer and drainage
    system in October and November 2016.

[13]

Ms. Bajouco seeks to adduce documents in support of her claim that Ms.
    Green misrepresented her true identity to the courts. She submits that the land
    registration documents indicate the owner of the land is Cynthia Green,
    rather than Cindy Green (as Ms. Green identified herself at trial).

[14]

Ms. Bajouco also submits that Ms. Green fabricated invoices and letters
    from the contractors.

[15]

The test governing the admissibility of fresh evidence on appeal was
    outlined by the Supreme Court in
R. v. Palmer
, [1980] 1 S.C.R. 759, at
    p. 775. It requires satisfaction of the following four criteria: (i) the
    evidence could not have been adduced at trial; (ii) the evidence must be
    relevant in that it bears on a decisive or potentially decisive issue; (iii)
    the evidence must be reasonably capable of belief; and (iv) the evidence must
    be such that, if believed, it could reasonably, when taken with the other
    evidence adduced at trial, be expected to have affected the result.

[16]

The proposed fresh evidence does not satisfy the
Palmer
test. As
    Pardu J.A. noted in dismissing the motion for a stay, most of the matters
    described as fresh evidence were, in fact, dealt with at trial.

[17]

At trial, Ms. Bajouco suggested that the flooding was caused by Ms.
    Greens own downspouts since the bathroom is located on that side of the house.
    The trial judge rejected this possibility by finding Ms. Bajouco liable.

[18]

Further, it is not clear how the floor map was obtained and whether it
    is accurate and reliable.

[19]

The flooding occurred between 2011 and 2013. The relevance of calcium in
    the sewer lines and construction work done by the City of Toronto in 2016 is tenuous
    at best and could not reasonably be expected to have affected the result at
    trial.

[20]

The issue at trial was liability for the flooding of Ms. Greens
    basement. Nothing about the name listed on the land registration documents is
    relevant to the determination of that issue.

[21]

Finally, Ms. Bajouco had an opportunity to challenge the accuracy of the
    letters and invoices from the contractors at trial. She simply repeats these
    allegations here without providing any additional evidence that would call into
    question the validity of these documents.

[22]

Accordingly, we decline to admit the fresh evidence.

(2)

Leave to Appeal

[23]

Ms. Bajouco seeks leave to appeal on the basis that the trial judge
    improperly relied on Ms. Greens allegedly false testimony and documents,
    failed to provide sufficient reasons, improperly reversed the burden of proof,
    and applied the wrong causation test.

[24]

The test for granting leave to appeal from a final decision of the
    Divisional Court acting in its appellate capacity was established by this court
    in
Sault Dock Co. Ltd. v. Sault Ste. Marie (City)
, [1973] 2 O.R. 479
    (C.A.). Such decisions are intended to be final and review of those decisions is
    the exception to the general rule:
Sault Dock
, at p. 480.

[25]

Leave may be granted in cases that present an arguable question of law
    or mixed fact and law on the interpretation of legislation; the interpretation,
    clarification or propounding of a general rule or principle of law; the
    interpretation of a municipal by-law where the point in issue is a question of public
    importance; or the interpretation of an agreement where the point in issue
    involves a question of public importance:
Sault Dock
, at p. 481.

[26]

The court may also grant leave where special circumstances make the
    matter one of public importance, or where it appears in the interests of
    justice that leave should be granted:
Sault Dock
, at p. 481. Finally,
    leave may be granted where there is a clear error in the judgment below:
Sault
    Dock
, at p. 481.

[27]

This case does not fall into any of the above categories. The proposed
    appeal is largely fact-based and does not raise questions that are of
    importance to the public generally. There is also no clear error below.

[28]

Most of Ms. Bajoucos proposed grounds of appeal seek to impugn the
    trial judges assessment of the evidence and to retry the case. Even if the
    purported fresh evidence was admissible, it would not justify granting leave in
    this matter.

[29]

The arguments about the sufficiency of reasons, burden of proof, and
    causation were appropriately addressed by the Divisional Court. The only matter
    that was seriously at issue before the trial judge was the cause of the
    flooding. The evidence before the trial judge was capable of supporting a
    finding that Ms. Bajoucos waterspout was responsible for the basement
    flooding.

[30]

There is no basis for this court to vary its earlier order. The motion
    for reconsideration is dismissed.

(3)

Prohibition on Further Motions

[31]

The responding party seeks an order under rule 2.1.02. Pursuant to rule
    2.1.02(3), when the court makes an order staying or dismissing a motion that
    appears to be frivolous, vexatious or an abuse of process, the court may also
    make an order prohibiting the moving party from making further motions in a
    proceeding without leave.

[32]

This court will monitor motions relying on rule 59.06 to ensure that the
    motion is not frivolous, vexatious or otherwise an abuse of process:
Hoang
    v. Mann Engineering Ltd.
, 2015 ONCA 838, at para. 15.

[33]

We are satisfied that in the context of this entire proceeding,
    including Ms. Bajoucos attempt to adduce fresh evidence and her recent
    correspondence with the Registrar, this motion is vexatious and an abuse of
    process and an order should issue under rule 2.1.02.

D.

disposition

[34]

For these reasons, the motion for reconsideration is dismissed, with
    costs to the responding party in the amount of $3,500, inclusive of
    disbursements and all applicable taxes. Ms. Bajouco is prohibited from bringing
    further motions in these proceedings without leave of the court.

George R. Strathy
    C.J.O.

David Brown J.A.

Grant Huscroft J.A.