COURT OF APPEAL FOR ONTARIO

CITATION:
Fanshawe College of Applied Arts and Technology v.
    Hitachi, Ltd., 2022 ONCA 144

DATE: 20220216

DOCKET:
    M52987 (C70009)

Lauwers, Huscroft and Coroza
    JJ.A.

BETWEEN

The Fanshawe College of Applied Arts and Technology

Plaintiff

(Respondent/Moving
    Party)

and

Hitachi,
    Ltd., Hitachi Asia, Ltd., Hitachi America, Ltd., Hitachi Displays

Ltd,
    Hitachi Electronic Devices (USA), Shenzhen SEG Hitachi Color Display

Devices,
    Ltd., Hitachi Canada, Ltd., Irico Group Corporation, Irico Group

Electronics
    Co, Ltd., Irico Display Devices Co., Ltd., LG Electronics, Inc.,

LG Electronics
    Taiwan Taipei Co. Ltd., LG Electronics USA, Inc., LG Electronics

Canada,
    Panasonic Corporation F/K/A Matsushita Electric Industrial Co. Ltd.,

Panasonic
    Corporation of North America, Panasonic Canada Inc.,

Koninklijke
    Philips Electronics N.V., Philips Electronics Industries (Taiwan)

Ltd.,
    Philips Da Amazonia Industria Electronica LTDA, Philips Electronics

North
    America Corporation, Philips Electronics Ltd., Samsung Electronics

Co.
    Ltd., Samsung Electronics America Inc., Samsung Electronics Canada Inc.,

Samsung
    SDI Co., Ltd. (F/K/A Samsung Display Device Co.), Samsung SDI Brasil LTDA,
    Samsung SDI America, Inc., Samsung SDI Mexico S.A. De C.V., Shenzhen Samsung
    SDI Co. Ltd., Tianjin Samsung SDI Co., Ltd., Toshiba Corporation, Toshiba
    America Electronic Components Inc., Toshiba America Information Systems Inc.,
    Toshiba of Canada Limited, Beijing Matsushita Color CRT Company, Ltd., Samtel
    Color, Ltd and MT Picture Display Co., Ltd

Defendants

Bridget Moran, Linda Visser and
    Katherine Shapiro, for the moving party

Brett Harrison, Paola Ramirez and
    Anthony Labib, for the responding party Class Action Capital Recovery LLC

Heard: January 25, 2022
by video conference

Lauwers J.A.:

I.

OVERVIEW

[1]

This is a motion to quash in the context of a class
    action for price-fixing related to the sale of cathode ray tube (CRT) products
    by various electronics manufacturers. The action is currently in the settlement
    administration phase. A court-approved Distribution Protocol is in place, which
    sets out a claims process for distributing settlement funds to class members.
    The Protocol provides claimants with a right of appeal against the decisions of
    the Claims Administrator to the Superior Court or its designate. However, the
    Protocol purports to prevent any further appeals.

[2]

Class Action Capital Recovery LLC (CAC) acted
    as a third-party filer for some claimants, but it is not itself a party to the
    class action. CAC seeks to appeal a decision of the motion judge relating to the
    claim reconsideration process.

[3]

Class Counsel move to quash the appeal on
    several bases, focusing on the grounds that the limit on further appeals in the
    Protocol binds this court to quash the appeal under s. 134(3) of the
Courts
    of Justice Act
, R.S.O. 1990, c. C.43, and that CAC does not have standing
    to bring an appeal.

[4]

I would dismiss the motion to quash. This court
    has jurisdiction to hear the appeal from the motion judges order. CAC has
    standing to appeal, and its appeal is not time-barred.

II.

The Background

[5]

After a succession of litigation battles, the
    claims were settled and the settlements were approved by the Superior Court of
    Justice under s. 27.1 of the
Class Proceedings Act,

1992
,
    S.O. 1992, c. 6. RicePoint Administration Inc. was appointed as the Claims Administrator.

[6]

On April 20, 2018, the motion judge approved the
    Distribution Protocol and Notice of Claims Process for the settlement funds. As
    he described in his endorsement of January 6, 2021, the Protocol requires
    claimants to submit Claims Forms detailing their CRT product purchases. They
    were permitted to use a third-party filer for this purpose. A claimant was not
    required to provide supporting documentation for a claim unless selected by the
    Claims Administrator for audit.

[7]

The Claims Administrator was required, under
    para. 43 of the Protocol, to identify deficiencies in a claim and give the
    claimant a chance to address them. The Claims Administrator could then deny all
    or part of the claim. The Protocol gave claimants, under paras. 48-55, a
    limited right of appeal to the Superior Court or its designate for claims over
    $100,000. Paragraph 55 of the Protocol provides that the decision on appeal is
    final and binding and shall not be subject to any further appeal or review
    whatsoever.

[8]

CAC filed claims on behalf of many large,
    institutional claimants. The Claims Administrator decided to select all claims
    filed by third parties for audit. Because of the time that had elapsed since
    the claimants purchases of the CRT products, the operation of the
    institutional claimants document retention policies meant that many were
    unable to produce documentary proof of purchase. The Claims Administrator
    denied the claims, using the same generic notice for each claimant whose claim
    was rejected in its entirety: We are rejecting your claim because you failed
    to provide adequate proof of purchase.

[9]

CAC and the other third-party filers whose
    claims were denied on that basis appealed under the Protocol by way of a motion
    for directions to the Superior Court. Acting in his capacity to hear appeals
    under the Protocol, the motion judge allowed the appeals in part on January 6,
    2021. He held that the Claims Administrator had interpreted documentary proof
    too narrowly and had not given sufficient reasons for denying the claims. He
    remitted to the Claims Administrator every claim in which a declaration
    attesting to the purchase of CRT products and supporting documentation were
    submitted, provided that these documents were submitted on time or that the
    filers should have been given additional time to submit such documentation. The
    other appeals were dismissed.

[10]

CAC and the Claims Administrator then argued about
    the process to be followed for assessing the remitted claims. The Claims
    Administrator took the position that it was only required to reconsider the
    claims on the basis of the documentation in accordance with the motion judges
    directions, and then send out revised decision notices. However, CAC maintained
    that the January 6th order required the Claims Administrator to restart the
    deficiency process as set out at para. 43 of the Protocol, that is, by
    identifying deficiencies in the submitted materials and then giving the
    claimants a chance to correct the deficiencies.

[11]

Both the Claims Administrator and CAC wrote to the
    motion judge seeking guidance. The trial coordinator responded by email on May
    11, 2021 stating:

Justice Grace believes his January 6, 2021
    reasons are clear. Paragraph 75 provides that the allowed appeals are remitted for
    reconsideration and decision in accordance with paras. 45 through 47 of the
    Distribution Protocol Para. 75 does not refer to para. 43. That should
    resolve the dispute concerning deficiency notices.

[12]

On June 25, 2021, the Claims Administrator sent
    reconsideration notices for 115 of the claims submitted by CAC that had
    previously been denied in full. Of these, 55 claims were partially approved and
    60 were rejected. CAC brought another motion for directions on the basis that the
    Claims Administrator had failed to follow the deficiency process ordered by the
    motion judge.

[13]

On September 21, 2021, the motion judge provided
    a brief endorsement declining to revisit the issue. He found that there was no
    evidence that the Claims Administrator had not acted in accordance with his January
    6th instructions, which spoke for themselves.

[14]

CAC filed its notice of appeal to this court on
    October 21, 2021. Class Counsel now seeks to quash CACs appeal.

III.

the Issues:

[15]

The issues raised on this motion to quash are:

1.

Does this court have jurisdiction to hear the
    appeal?

2.

Does CAC have standing?

3.

Is the appeal out of time?

4.

Is the appeal a collateral attack on the January
    6, 2021 order?

I address each issue in turn.

IV.

Analysis

(1)

Does this court have jurisdiction to hear the
    appeal?

[16]

When he took up his responsibility under the
    Protocol, the motion judge did not cease acting in his capacity as a Superior
    Court judge. This is the plain ratio of this courts decision in
Fontaine
    v. Duboff Edwards Haight & Schachter
, 2012 ONCA 471, 111
    O.R. (3d) 461, which involved an appeal from a decision of Winkler
    C.J.O. sitting in his capacity as an administrative judge under the

Court
    Administration Protocol for the Indian Residential Schools Settlement
    Agreement.

This court dismissed the respondents motion to quash the appeal because
    the Settlement Agreement was incorporated into a series of court orders, and
    the orders implementing the Settlement Agreement stated that the courts would
    supervise its implementation. The administrative judges directions finally
    determined the issue in question (i.e., whether legal fee review decisions of
    the Chief Adjudicator were subject to any further appeal or review). His
    directions were incorporated as a final order of a judge of the Superior Court
    of Justice. Therefore, his decision was appealable to the Court of Appeal under
    s. 6(1)(b) of the
Courts of Justice Act
.

[17]

The legislature knows how to oust or modify this courts
    jurisdiction in cognate areas. I point to two examples. The first is the
Arbitration Act
,
1991
, S.O.
    1991, c. 17, which permits rights of appeal to the courts to be limited by an
    arbitration agreement under s. 45. The second is
the
International
    Commercial Arbitration Act
,
2017
, S.O. 2017, c. 2, Sch. 5, s. 11
    (ICAA) and arts. 16 and 34 of the
UNCITRAL Model Law on
    International Commercial Arbitration
, adopted by the United Nations
    Commission on International Trade Law on June 21, 1985, as amended on July 7,
    2006, which has the force of law in Ontario under s. 5 of the ICAA, subject to
    any modifications set out in the Act.
This courts usual jurisdiction to
    hear appeals from orders of Superior Court judges can only be displaced by
    virtue of an agreement if doing so is permitted by statute.

[18]

There is no language in the
Class
    Proceedings Act
or in any other Ontario statute ousting this courts
    jurisdiction. Paragraph 55 of the Protocol is not sufficient, on its own, to
    oust the appellate jurisdiction this court would otherwise have under the
Courts
    of Justice Act
. This fact might counsel caution in the future design of
    class action distribution protocols.

[19]

The consequence is that the appeal rights under s.
    6(1) of the
Courts of Justice Act
presumptively apply. Section 6(1)
    provides:

An appeal lies to the Court of
    Appeal from,

(b) a final order of a judge of the
    Superior Court of Justice, except,

(i) an order referred to in
    clause 19(1)(a) or (a.1), or

(ii) an order from which an
    appeal lies to the Divisional Court under another Act;

[20]

Does s. 6(1) direct the appeal under the Protocol
    to this court or, under s. 6(1)(b)(ii), to the Divisional Court by reason
    of s. 30 of the
Class Proceedings Act
? The Protocol is a settlement
    and is not a decision on the merits to which s. 24 (aggregate damages) or s.
    25 (individual issues) would apply to lead to an appeal governed by s. 30. Section
    30 is silent on the appellate route from an order made on a motion for
    directions brought under the terms of a court-approved settlement agreement:
Parsons
    v. Ontario
, 2015 ONCA 158, 125 O.R. (3d) 168, at para. 39, revd on other
    grounds, 2016 SCC 42, [2016] 2 S.C.R. 162. This court has held that [w]here s.
    30 does not specifically address the appeal route for a particular type of
    order or judgment, s. 6(1)(b) of the
Courts of Justice Act
will govern
    whether an appeal lies to this court or to Divisional Court:
Bancroft-Snell
    v. Visa Canada Corporation
, 2019 ONCA 822, 148 O.R. (3d) 139, at para. 16,
    leave to appeal refused, [2019] S.C.C.A. No. 500 (
Wal-Mart Canada Corp.
)
    and [2019] S.C.C.A. No. 501 (
Home Depot of Canada Inc.
).
Because s. 30 does not specifically address the appeal route for
    this type of order, appeals to this court are governed by s. 6(1) of the
Courts
    of Justice Act
. Under s. 6(1)(b), CACs appeal lies to this court.

(2)

Does CAC have standing?

[21]

Class Counsel argue that because CAC is not a
    party, this courts decisions in
Dabbs v. Sun Life Assurance Co. of Canada
(1998), 41 O.R. (3d) 97 (C.A.), leave to appeal refused, [1998] S.C.C.A. No.
    372 and
Bancroft-Snell
deprive it of standing. In
Bancroft-Snell
,
    this court affirmed
Dabbs
and held that class members appeal rights
    under the
Class Proceedings Act
are not supplemented by the general
    appeal rights under s. 6(1)(b) of the
Courts of Justice Act
.

[22]

In response, CAC submits that
Bancroft-Snell
is distinguishable. It argues that, unlike the situation in
Bancroft-Snell
,
    it is not seeking to appeal an order approving a settlement agreement, but is
    instead seeking to uphold the deficiency process in the Protocol. CAC notes
    that class members did not object to the Protocol because it contained the
    deficiency process. In addition, CAC emphasizes that class members have a
    direct interest in the subject matter of the proceeding, and that the technical
    distinction in the
Class Proceedings Act
between class members and
    parties should not be used to part way with the rights of class members.

[23]

It is too late for Class Counsel to credibly
    dispute CACs standing to advance the interests of its claimant clients, because
    CAC represented them without objection before the motion judge. CAC must be
    understood as having the status of an agent for its clients in this phase of
    the class proceeding. A more formalistic approach would only undermine the
    goals of class proceedings by, for example, requiring each claimant
    inefficiently and expensively to advance its own appeal.

(3)

Is the appeal out of time?

[24]

Rule 61.04 of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194 requires an appellant to serve a notice of appeal within
    30 days of the order appealed from and then to file it within an additional 10
    days. However,
under r. 3.02,
t
he court can extend the time for serving and filing a notice of
    appeal.
On a motion for an extension of time, the
    overarching question is whether the justice of the case requires that an
    extension be given. Relevant considerations include: (a) whether the moving
    party formed a
bona fide
intention to appeal within the relevant time
    period; (b) the length of, and explanation for, the delay; (c) any prejudice to
    the responding parties; and (d) the merits of the proposed appeal:
Enbridge
    Gas Distribution Inc. v. Froese
, 2013 ONCA 131, 114 O.R. (3d) 636, at
    para. 15.

[25]

When does the appeal period start to run? In
Fontaine
    v. Canada (Attorney General)
, 2012 ONCA 206, 289 O.A.C. 190, Watt J.A.
    stated, at para. 57: As a general rule, the time period within which a notice
    of appeal is to be delivered begins to run on the date the order under appeal
    is pronounced by oral or written reasons. He added a caveat that where clarification
    is required because the judgment is uncertain on an issue, the time runs from
    entry, not pronouncement: at para. 59, citing
Byers (Litigation Guardian
    of) v. Pentex Print Master Industries Inc.
(2003), 62 O.R. (3d) 647 (C.A.).

[26]

An appeal lies from a judgment or order, not
    from the reasons for it:
Ross v. Canada Trust Company
, 2021
    ONCA 161, 458 D.L.R. (4th) 39, at para. 53. But where the precise import
    of the reasons is not clear until the judgment is settled, it is reasonable to
    treat that date as the date from which the appeal period begins to run.
    Further, in determining whether to quash an appeal on the basis that it is out
    of time, a panel can consider the factors that inform a decision to extend time:
    see
Gefen v. Gaertner
, 2021 ONCA 631, at para. 11.

[27]

In considering the application of these
    principles, I observe that no formal order was ever entered from the January 6,
    2021 decision. Perhaps that is because the parties could not agree on the
    terms. The letters that the parties sent to the motion judge seeking to clarify
    the meaning of the January 6th decision demonstrate their persistent
    disagreement that was only resolved on September 21, 2021, when the
    motion judges subsequent endorsement was released.

[28]

As noted above, after the Claims Administrator
    adjusted the claims, CAC appealed again on the basis that the Claims
    Administrator had failed to follow the deficiency process ordered by the motion
    judge. That motion was heard on September 21, 2021. The motion judge determined
    that his previous instructions in the January 6th reasons had been clear and
    that the Claims Administrator had complied with them.

[29]

At one level, the determination of when time began
    to run for appeal purposes depends on whether it was clear from para. 75 of the
    January 6th reasons that the full deficiency process was not to be followed for
    the remitted claims. That paragraph states: The allowed appeals are remitted
    to RicePoint for reconsideration and decision in accordance with paras. 45
    through 47 of the Distribution Protocol and these reasons. As noted above, the
    clarifying email sent by the trial coordinator on behalf of the motion judge stated:
    Para. 75 does not refer to para. 43. That should resolve the dispute
    concerning deficiency notices.

[30]

Paragraph 43 of the Protocol, to which the motion
    judge did not refer in his January 6th reasons, provides:

If the Claims Administrator finds that
    deficiencies exist in a Claim Form or other required information, the Claims
    Administrator shall notify the Settlement Class Member, by email or regular mail,
    of the deficiencies. The Claims Administrator shall allow the Settlement Class
    Member thirty (30) days from the date of such notice to correct the
    deficiencies. If the deficiencies are not corrected within the thirty (30) day
    period, the Claims Administrator may reject the Claim Form. The Online Claim
    Portal shall be designed so as to minimize the possibility of deficient Claim
    Forms.

[31]

The appeal will be argued so I am reluctant to
    weigh in, but I am not surprised that CAC viewed the appeal judges trenchant
    criticism of the Class Administrators process in the January 6th reasons at
    paras. 55-57 and 68-75 as implying that the Claims Administrator would conduct
    a broader reconsideration of the claims than the appeal judge stipulated in the
    final endorsement.

[32]

Given the continued dispute about the meaning of
    the January 6th decision, I view the date on which the judgment exhibited
    sufficient certainty for appeal purposes as September 21, 2021, when the motion
    judges subsequent endorsement was released. As a result, the appeal was
    commenced in time.

[33]

Even if I am mistaken, the court has the
    discretion to extend time based on the
Enbridge
factors. CAC was
    obviously forceful in arguing its position throughout. The delay is fully explained.
    There is no prejudice beyond a delay in disbursing the settlement funds. The
    appeal is not frivolous and the justice of the case warrants it being argued.

(4)

Is the appeal a collateral attack on the January
    6, 2021 order?

[34]

I agree with CAC that a collateral attack argument
    is a defence,
not a reason to quash an appeal for want
    of jurisdiction
:
Gratton-Masuy Environmental Technologies Inc. v.
    Ontario
, 2010 ONCA 501, 101 O.R. (3d) 321, at para. 74, leave to appeal requested
    but appeal discontinued, [2010] S.C.C.A. No. 397. This issue must be left to
    the panel hearing the appeal.

V.

Disposition

[35]

I would dismiss the motion to quash with costs
    payable to CAC. If the parties are unable to agree on costs, then CAC may file
    a written submission no more than three pages in length within ten days of the
    date of the release of these reasons; Class Counsel may file a written
    submission no more than three pages in length within ten days of the date CACs
    submission is due.

[36]

Class Counsel advised that this appeal is
    preventing the disbursement of settlement funds because any remaining funds
    will be distributed
pro rata
, so all entitlements must be finalized
    before the distribution can occur. Accepting this submission, I would direct that
    the appeal be heard on an expedited basis.

Released: February 16, 2022 P.L.

P.
    Lauwers J.A.

I
    agree. Grant Huscroft J.A.

I
    agree. S. Coroza J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
White v. Upper Thames River Conservation Authority, 2022 ONCA
    146

DATE: 20220216

DOCKET: C69475

Lauwers, Huscroft and Coroza
    JJ.A.

BETWEEN

John White, Sarah White, Garth
    Williams, Paul Stubbens, Elaine Stubbens, Linda Adams, Steve Ward, Kevin Prust,
    Theresa Prust, James Osmar, Carol Tracy, Barry Nash, Judy Nash, Brent
    Poley, Thane Ulrich, Brian Hanlon, Nancy Hanlon, John Conlon, Joan Conlon, Doug
    Mellor, Norma Mellor, Susan Dawtrey, Claude Guitard, Jamie Mackay, Cindi
    Davis, Rick Brydon, Roy Bissonnette, Dennis Froese, Dave Farnham, Mike Landry,
    Pat Warren, George Clemens, Marilyn Greer, Patrick Kelly, Barb Kelly, Lynn Daly,
    Frank Vandiepenbeek, Frank Sinasac, Gerald Trainor, David Bobier and
    Leslie Putnam

Applicants

(Appellants)

and

Upper Thames River Conservation
    Authority

Respondent

Vedran Simkic and Matthew Helfand, for
    the appellants

Ian Wright, for the respondent

Eli Fellman and Katia Snukal, for the intervener
    Landlord and Tenant Board

Karen Andrews, for the intervener
    Advocacy Centre for Tenants Ontario

Heard: January 28, 2022 by video conference

On appeal from the order of the
    Divisional Court (Justices Harriet E. Sachs, Brian W. Abrams and Michelle OBonsawin),
    dated December 16, 2020, with reasons reported at 2020 ONSC 7822, 154 O.R. (3d)
    133, allowing an appeal from the order of the Landlord and Tenant Board, dated
    June 5, 2018.

Huscroft
    J.A.:

OVERVIEW

[1]

The appellant tenants own homes that sit on land
    leased from the respondent. The homes are the primary residences of many,
    though not all of them.

[2]

The appellants have long-term leases with the
    respondent, first entered in 1983. The leases limit occupancy to weekends
    during the three-month winter period. In other words, for three months out of
    the year, the appellants are not permitted to reside in their homes Monday
    through Friday. The leases were amended in 2004 to permit tenants to choose the
    winter dates when their occupancy limitation runs, but the substance of the
    limitation remains: the appellants are not permitted to occupy their homes
    year-round. Occupancy outside the permitted period is expressly stated to be a
    violation of the terms of this lease and will result in delivery of Notice of
    Lease Termination.

[3]

Despite the clear terms of the lease, the respondent
    has never strictly enforced the occupancy limitation and as a result, many
    tenants live in their homes year-round.
The parties were in the midst of
    renegotiating their leases and the enforceability of the occupancy limitation
    became the subject of a dispute. The appellants applied to the Landlord and
    Tenant Board (the Board) for an order that the
Residential
    Tenancies Act
, 2006
, S.O. 2006, c. 17 applies to their
    tenancies, and an order requiring the respondent to allow them unfettered
    access to and occupation of their homes, year-round.

[4]

The Board held that the Act applies to the parties lease and it
    followed that the tenants ought to have unrestricted access to the rental
    units. The Board added that restricting tenants access would amount to
    substantial interference with their reasonable enjoyment of their rental units,
    in violation of s. 22 of the
Act
. The Divisional Court
    allowed the respondents appeal, holding that s. 22 does not render illegal
    provisions landlords and tenants have agreed upon.

[5]

The application of the Act to the parties lease is no longer contested.
    The sole issue on appeal is the legality of the occupancy limitation in the
    lease.

[6]

In my view, the occupancy limitation is inconsistent with the Act and as
    a result is void. I would allow the appeal for the reasons that follow.

BACKGROUND

The standard of review

[7]

This is an appeal from the decision of the Board
    on a question of law pursuant to s. 210(1) of the Act. As such, the presumption
    of reasonableness review is rebutted and the standard of review is correctness:
Canada (Minister of Citizenship and Immigration) v. Vavilov
, 2019 SCC
    65, 441 D.L.R. (4th) 1, at para. 37. It follows that neither the decision
    of the Board nor the decision of the Divisional Court is entitled to deference.
    Whereas reasonableness review focuses on the decision made and the reasons
    proffered for that decision, under correctness review this court must make the
    decision for itself.

The
Residential Tenancies Act

[8]

The purpose of the Act, as set out in s. 1, is to
"provide protection for residential tenants from unlawful rent
    increases and unlawful evictions, to establish a framework for the regulation
    of residential rents, to balance the rights and responsibilities of residential
    landlords and tenants and to provide for the adjudication of disputes and for
    other processes to informally resolve disputes."

[9]

The Act governs more than the rental of
    apartments in apartment buildings. It also governs situations in which tenants
    own the homes in which they live but rent the land on which those homes sit
    the situation in this case. The Act defines a land lease home as a dwelling
    that is
a permanent structure where
    the owner of the dwelling leases the land used or intended for use as the site
    for the dwelling. The general terms of the Act apply to land lease homes along
    with a number of specific provisions that cover land lease homes and
    communities, none of which are germane to this appeal.

[10]

The Act is remedial legislation designed to redress the imbalance of
    power between landlords and tenants. It removes leases from the ordinary
    contract law principles that would otherwise govern and establishes extensive
    statutory rights for tenants. The Act enjoys primacy over all other
    legislation, save the
Ontario Human Rights Code
, and the parties
    are prohibited from waiving or limiting the protection the Act provides.
The
    key legislative provisions in this regard are ss. 3 and 4:

3
(1)
This Act, except Part V.1, applies with respect
    to rental units in residential complexes, despite any other Act and despite any
    agreement or waiver to the contrary.

(4) If a
    provision of this Act conflicts with a provision of another Act, other than the
Human Rights Code
, the provision of this Act applies.

4
(1) Subject to
subsection
    12.1(11) and section 194,
a provision in a tenancy agreement that is
    inconsistent with this Act or the regulations is void.

The impugned lease provisions

[11]

The
    occupancy limitation is set out in para. 3 of the lease, which provides:

The lease and license permits the Tenant,
    the Tenant's family and guests to occupy the dwelling house and other
    improvements constructed on the lot only at the following times:

(a)

From the first day of March to the 30th day of
    November in each and every year during the term hereof;

(b)

During the months of January, February and
    December, occupancy shall be weekends only commencing on Friday at 1:00 p.m.
    and concluding on Sunday at 9:00 p.m. Where Friday or Monday is a public holiday,
    such shall be included in the weekend with the times so enlarged.

Occupancy of the dwelling house other than
    at the times as herein provided, shall be a violation of the terms of this
    lease and licence and the lease and license shall at the option of the
    Authority become forfeited and such option may be exercised by delivery of
    notice of termination hereunder.

[12]

Appendix B, added in 2004, permits limited choice of the winter dates
    in which the occupancy limitation runs.
During that period, tenants
    may occupy their units only from Sunday night at 9:00 p.m. to

Monday
    morning at 9:00 a.m. Violation of the occupancy limit is a serious matter. The appendix
    states: Occupancy of the dwelling other than at the times provided, is a
    violation of the terms of this lease and will result in delivery of Notice of
    Lease Termination.

DISCUSSION

[13]

The
    parties have a longstanding rental relationship that has always included occupancy
    limitations. It is unclear why the limitations were established. The respondent
    can suggest no purpose for them, nor does anything in the record indicate the
    practice at other conservation authorities in the province. The respondent is
    attempting to establish the legality of occupancy limitations it has chosen not
    to enforce for decades.

[14]

Regardless
    of the provenance or utility of the occupancy limitations, the operation of the
    Act is clear: if the limitations are inconsistent with the Act they are
    rendered void by operation of s. 4.

[15]

Plainly,
    occupancy limitations are not specifically permitted by the Act, but nor are
    they specifically prohibited. The Divisional Court considered that the absence
    of a specific prohibition was determinative, given the parties agreement to
    the limitations. In an apparent application of the
expressio
    unius est exclusio alterius
maxim, the court reasoned that because
    the Act includes some specific prohibitions  for example, the Act prohibits
    no pet provisions  the absence of a specific prohibition of occupancy limitations
    means that they must be permitted. The court reasoned that [i]f there was a
    limitation regarding limiting access or occupation of a residential unit, the
    court would expect there to be a specific section of the
Act
dealing with this issue. The court added: It can hardly be said that when a
    party voluntarily agrees to a provision of the residential agreement that is
    not specifically provided for by the
Act
, this
    leads to a determination that the provision is inconsistent with the
Act
.

[16]

This
    reasoning is untenable. It does not necessarily follow from the specific prohibition
    of some things in an act that other things not specifically prohibited must be
    permitted. Whether this sort of negative implication can be drawn depends on
    context and common sense  as Scalia and Garner note, whether the thing
    specified can reasonably be thought to be an expression of
all
that shares in the grant or prohibition involved: see
Reading Law: The Interpretation of Legal Texts
(
St. Paul, MN: Thompson/West,
2012), at pp. 107-111. In
    this case, there is no reason to suppose that the Legislatures decision to
    prohibit no pet provisions has anything to do with tenants right to occupy
    the units they rent.

[17]

The
    Divisional Courts reasoning begs the question at issue. Voluntary agreement to
    a provision is irrelevant if that provision is not otherwise permitted. In the
    absence of specific authorization or prohibition, the legality of occupancy
    limitations must be determined by consideration of the provisions of the Act as
    a whole.

[18]

This is simply an application of the modern
    approach to statutory interpretation. The purpose of statutory interpretation
    is uncontroversial: it is to determine the intention of the legislature. The
    Supreme Court summarized the modern approach recently in
Vavilov
, at
    para. 117:

A court interpreting a statutory provision
    does so by applying the modern principle of statutory interpretation, that
    is, that the words of a statute must be read in their entire context and in
    their grammatical and ordinary sense harmoniously with the scheme of the Act,
    the object of the Act, and the intention of Parliament:
Rizzo & Rizzo
    Shoes Ltd. (Re)
, [1998] 1 S.C.R. 27, at para. 21, and
Bell ExpressVu
    Limited Partnership v. Rex
, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26,
    both quoting E. Driedger,
Construction of
    Statutes
(2nd ed. 1983), at p. 87. Parliament and the provincial
    legislatures have also provided guidance by way of statutory rules that
    explicitly govern the interpretation of statutes and regulations: see, e.g.,
Interpretation Act
, R.S.C. 1985, c. I-21.

[19]

The
    modern approach to statutory interpretation is now referred to as text,
    context, and purpose: see the helpful discussion by Miller J.A. (dissenting)
    in
R. v. Walsh
, 2021 ONCA 43, 154
    O.R. (3d) 263, at paras. 133-150. In my view, the text, context, and purpose of
    the Act confirm that it contemplates only non-temporary, non-conditional,
    unlimited occupancy arrangements. In short, occupancy limitations in residential
    leases are not permitted.

The security of tenure

[20]

The
    intervener Advocacy Centre for Tenants Ontario and the Board made helpful
    submissions highlighting the security of tenure provisions of the Act
    provisions that the Divisional Court failed to consider. These provisions are
    premised on the notion that the Act establishes ongoing tenancies that may be
    renewed following completion of the initial fixed term. The circumstances in
    which a landlord may take possession of a rental unit from a tenant are strictly
    limited to lawful termination, abandonment, death, assignment, eviction, or a
    Board order  in other words, the end of a tenancy in accordance with the Act.
    Nothing in the Act authorizes a landlord to take possession of a residential
    unit during an ongoing tenancy or assists the landlord in doing so.

[21]

None
    of this is surprising in the context of an Act that is designed to redress the
    imbalance in bargaining power between landlords and tenants. Occupancy limitations
    are at odds with the very scheme of the Act. This is confirmed by the core
    concepts in the Act  tenant and tenancy agreement  both of which are defined
    in s. 2(1) in terms of tenants
right to
    occupy
the units they rent.

[22]

The
    respondent sought to defend occupancy limitations by drawing a distinction
    between tenants right to occupy their rental units, on one hand, and the right
    of the landlord to take possession of those units on the other, asserting that
    the landlord does not take possession of the rental units or occupy them itself
    during the term in which occupation by the tenant is not permitted. This
    purported distinction is illusory. The denial of a tenants right to occupy the
    unit he or she has leased is the problem, and it is irrelevant whether the
    landlord has in some sense taken possession of the unit or simply denied the
    tenant access to it; in either case, the continuity of the tenancy has been
    broken in a manner inconsistent with the Act.

[23]

The
    Act specifically enumerates the forms of living accommodation that are exempt
    from the Act on the basis of seasonal or temporary occupation, and it is common
    ground that the land lease situation in this case is not included. Section 5(1)
    provides:

5
This
    Act does not apply with respect to,

(a) living accommodation intended
    to be provided to the travelling or vacationing public or occupied for a
    seasonal or temporary period in a hotel, motel or motor hotel, resort, lodge,
    tourist camp, cottage or cabin establishment, inn, campground, trailer park,
    tourist home, bed and breakfast vacation establishment or vacation home;

[24]

In
    other words, rather than address seasonal or temporary accommodation
    arrangements in the context of leases covered by the Act, the Legislature
    exempted them all together.

[25]

Thus,
    the Divisional Courts concern that the Boards order would preclude the owner
    of a cottage and a tenant from including a term in a lease permitting the owner
    to occupy the cottage during certain limited times of the year, such as at
    Christmas, is misplaced. Cottage rentals are exempt from the Act by virtue of
    s. 5. Put another way, there is no need to interpret the Act to protect
    seasonal or temporary arrangements for living accommodations. The Legislature
    has adverted to the matter and determined the sorts of seasonal and temporary
    arrangements that are not covered by the Act.

[26]

In
    summary, the Act establishes security of tenure. Occupancy limitations are
    inconsistent with the Act and are rendered void by s. 4. The parties agreement
    to such limitations is simply irrelevant: freedom of contract values cannot be
    invoked to limit the protection the Act provides.

[27]

This
    is sufficient to dispose of the appeal, but because of the way in which the
    matter was argued, both before the Board and Divisional Court, I will discuss
    briefly the concept of reasonable enjoyment under s. 22 of the Act.

The right to reasonable enjoyment

[28]

Section
    22 of the Act provides as follows:

A landlord shall not at any time during a
    tenants occupancy of a rental unit and before the day on which an order
    evicting the tenant is executed substantially interfere with the reasonable
    enjoyment of the rental unit or the residential complex in which it is located
    for all usual purposes by a tenant or members of his or her household.

[29]

The
    Act does not define either the concept of reasonable enjoyment or substantial
    interference with it. These are vague terms that must be fleshed out by Board
    decisions in particular contexts, and a large body of Board case law has
    developed in this regard. In this case, the Board stated that the restriction
    of tenants access to rental units would be a substantial interference with
    the reasonable enjoyment of the rental units. The Divisional Court disagreed,
    stating as follows:

A reading of the ordinary sense of s. 22 of the
Act
does
    not lead to a determination that Upper Thames substantially interfered with the
    reasonable enjoyment of the Tenants
rental
units when
    these Tenants voluntarily agreed to the provision in the lease. To be clear, s.
    22 of the
Act
cannot be read as to indicate that any limitation to
    access to a rental unit during certain periods of time, agreed upon by both
    landlord and tenant, equates to a substantial interference by the landlord with
    the reasonable enjoyment of the rental units. To find otherwise would be to
    unnecessarily limit the ability of landlords and tenants to enter into flexible
    arrangements regarding the leasing of premises.

[30]

As
    I have explained, it was unnecessary for the Board to rely on s. 22. For its
    part, the Divisional Court erred by assuming occupancy limitations to be proper
    by virtue of the absence of a specific prohibition in the Act and tenants agreement
    to include them in their leases. This led the court to conclude that s. 22 was
    at the heart of the appeal, and it had to be interpreted in accordance with the
    parties freedom of contract.

[31]

The
    outcome in this case does not depend on the tenants right of reasonable
    enjoyment. The occupancy limitation in the leases is void because it is
    inconsistent with the Act as a whole and the nature of the tenancies it
    establishes and protects.

Disposition

[32]

I
    would allow the appeal and set aside the order of the Divisional Court.

[33]

The
    appellant is entitled to costs of the appeal in the agreed amount of $10,000,
    all inclusive. The costs in the Divisional Court are reversed. The interveners
    are not entitled to costs.

Released: February 16, 2022 P.L.

Grant
    Huscroft J.A.

I
    agree. P. Lauwers J.A.

I
    agree. S. Coroza J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Trivedi v. Hudd, 2022 ONCA 147

DATE: 20220214

DOCKET: M53120 (C68672)

Thorburn
    J.A. (Motions Judge)

BETWEEN

Jayesh
    Kumar Trivedi

Plaintiff (Appellant/Moving Party)

and

Anthony
    Hudd and Ash Payment Solution Inc.

Defendants (Respondents/Responding Parties)

Jayesh Kumar Trivedi, acting in person

William W. N. Fawcett, for the
    responding parties

Heard: February 11, 2022 by video conference

ENDORSEMENT

[1]

The appellant and
moving
party, Jayesh Kumar
    Trivedi, seeks to set aside the Registrars order dismissing the appeal for
    delay and to extend the time to perfect his appeal.

[2]

On July 22, 2018, the appellant began an action
    for claims arising out of a business dispute between the parties. The
    respondents brought a motion for summary judgment to dismiss the action on multiple
    grounds, including that it was statute-barred by virtue of s. 4 of the
Limitations
    Act, 2002
, S.O. 2002, c. 24, Sched. B, which provides that no proceeding shall
    be commenced after the second anniversary of the day the claim was discovered.

[3]

On August 5, 2020, summary judgment was granted,
    dismissing the action on the grounds that the appellant had failed to commence
    his proceeding within the two-year limitation period and the claim was
    therefore statute barred.

[4]

The appellant filed his notice of appeal to this
    court on time but failed to perfect his appeal within the required time. His
    appeal was dismissed for delay on December 15, 2020. Prior to the dismissal of his
    appeal, the Registrar of this court informed the appellant that the deadline
    for perfecting his appeal had passed and that if he needed further time to
    perfect his appeal, he could obtain consent of the opposing party or bring a
    motion for an extension of time.

[5]

In January 2022, over a year after his appeal
    was dismissed, the appellant filed a motion to set aside the dismissal and
    extend the time to perfect his appeal.

[6]

The overarching principle for determining
    whether an extension of time ought to be granted is whether the justice of the
    case requires it. This includes consideration of: (i) whether the moving party
    formed a
bona fide
intention to appeal within the relevant time; (ii)
    the length of and explanation for the delay; (iii) prejudice to the responding
    parties caused, perpetuated or exacerbated by the delay; and (iv) the merits of
    the proposed appeal:
Enbridge Gas Distribution Inc v. Froese
, 2013 ONCA
    131, 114 O.R. (3d) 636, at para. 15;
Reid v. College of Chiropractors of
    Ontario
,
2016 ONCA 779, at para. 14. Lack of merit alone can be a
    sufficient basis to deny an extension of time:
Enbridge
,
at
    para. 16;
Reid
,
at para. 15.

[7]

It is agreed that the appellant intended to
    appeal within the time for bringing an appeal.

[8]

The delay is lengthy. The appellant explains the
    delay on the basis that due to COVID-19, he lost his job and was on benefits,
    he was not able to seek the assistance of counsel because most of them were
    not meeting the clients for consultations, and family members died overseas as
    a result of the pandemic. The appellants mother, brother-in-law and cousin
    died in 2021. He claims that Now I am again regaining my mental and financial
    strength and therefore I want to pursue this appeal matter.

[9]

While the appellant has undoubtedly experienced hardship
    during this period, there is no evidence of any attempts to contact counsel or
    indeed any steps taken at all to pursue the appeal since December 2020 when the
    appeal was dismissed.

[10]

More importantly, the appeal has little chance
    of success. The motion judges conclusion that the limitation period expired
    prior to the issuance of a statement of claim is a finding of mixed fact and
    law for which the standard of review is palpable and overriding error:
Longo
    v. MacLaren Art Centre
,
2014 ONCA 526, 323 O.A.C. 246, at para. 38.

[11]

The appellants statement of claim asserted that
    when money went missing from the business for reasons unknown in July of 2015,
    the appellant injected his own funds to get the business back up and running.

[12]

The appellant wrote the respondent an email on
    January 28, 2016 stating that if the respondent had a lawyer draw up documents,
    I dont have to take legal action. If not, he would prove that the respondent
    committed negligence. He claimed that he had lost $56,000 and another $13,000
    in residuals that had not been paid. The $56,000 is the subject of this claim
    (while the $13,000 related to an earlier Small Claims Court action that was
    dismissed). The respondent replied on the same day, Do what you have to do Jay
    but remember every action has an equal or greater reaction. The motion judge
    held that this exchange left no doubt about the time of discovery and that
    the email exchange is the equivalent of a smoking gun for the purposes of the
Limitation
    Act, 2002
.

[13]

At this point, the relationship had broken down
    and the appellant knew the respondent would not accede to his demand.

[14]

In his oral submissions, the appellant advised
    that in early 2016, his father passed away and he was suffering depression for
    three months.

[15]

In his grounds of appeal, the appellant claims
    he did not file a claim as he was seeking to settle the dispute through mutual
    friends. He claims that the motion judge failed to consider that the wording in
    his email to the respondent, stating I do not have to take legal action,
    suggested he would try to settle the matter through friends. However, the
    motion judge considered the appellants email to the respondent, including that
    he told the respondent that if the respondent had a lawyer draw up documents then
    he would not have to take legal action. The motion judge found that the
    respondents response indicated as counsel paraphrased, Come get me.
    Therefore, the motion judge found the claim was discovered in the legal sense
    at the latest on the date of the email correspondence, on January 28, 2016.

[16]

I see no error in the motion judges conclusion
    that the email correspondence made it clear that a legal remedy would be
    appropriate. Given the email correspondence, trying to settle the matter through
    friends or negotiation did not stop the limitation period from running. A party
    cannot rely on his own tactical reasons for delaying the commencement of legal proceedings:
Markel Insurance Company of Canada v. ING Company of Canada
, 2012 ONCA
    218, 109 O.R. (3d) 652, at para. 34;
Davies v. Davies Smith Developments
    Partnership
,
2018 ONCA 550, at para. 13.

[17]

In sum, although the claim was discovered by
    January 28, 2016, the appellant did not bring this claim until June 22, 2018, two
    years and six months later, and after the two-year limitation period had
    expired. I can see no palpable and overriding error in the motion judges
    conclusion that would allow this court to interfere with the decision of the
    motion judge, and therefore see no potential merit to this appeal: see
Sutherland
    Lofts Inc. v. Peck
,
2017 ONCA 803, at para. 12.

[18]

Moreover, the justice of the case does not
    require the granting of leave. The dispute began in 2016. When the appellant
    did not perfect his appeal in compliance with the rules in December 2020, and
    his appeal was dismissed for delay, he did not act promptly to file this notice
    of motion: see
Monteith v. Monteith
,
2010 ONCA 78, at para. 21.
    Instead, he filed the notice of motion over a year later. In these
    circumstances, the appellant has not established that the balancing of the
    factors and the justice of the case require an extension of time.

[19]

For these reasons, I find that the appellant has not satisfied the
    test for an extension of time and established that the justice of the case
    requires an extension of time. The motion to set aside the order dismissing the
    appeal for delay and to extend the time to perfect this appeal is therefore
    denied. The respondents seek $1,250 in partial indemnity costs. The moving
    party suggests he is impecunious. Under the circumstances, I make no order as
    to costs.

J.A.
    Thorburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Graham v. Toronto (City), 2022 ONCA 149

DATE: 20220216

DOCKET: C69418

Simmons, Pardu and Brown JJ.A.

BETWEEN

Robyn
    Graham and David Mitchell

Plaintiffs (Respondents)

and

City of Toronto

Defendant (Appellant)

Edona C. Vila, for the appellant

Joel P. McCoy and Alan C. Preyra, for
    the respondents

Heard: February 10, 2022 by video conference

On
    appeal from the order of Justice Eugenia Papageorgiou of the Superior Court of Justice,
    dated April 6, 2021, with reasons reported at 2021 ONSC 2278, 15 M.P.L.R. (6th)
    293.

REASONS FOR DECISION

Overview

[1]

On January 2, 2018 the respondent, Robyn Graham,
    tripped on a pothole in a pedestrian crosswalk in mid-town Toronto. As a result
    of the injuries she suffered, Ms. Graham and her husband, the respondent David
    Mitchell, sued the appellant, the City of Toronto.

[2]

Section 42(6) of the
City of Toronto Act,
    2006
, S.O. 2006, c. 11, Sched. A (the Act) provides that no action shall
    be brought for the recovery of damages against the City for its failure to
    maintain a highway in a reasonable state of repair unless the claimant provides
    the City with written notice of the claim and the injury complained of within
    10 days after the occurrence of the injury. Ms. Graham did not give the City
    notice of her claim until March 22, 2018, just short of three months after her
    trip and fall.

[3]

The City moved for summary judgment dismissing
    the action by reason of Ms. Grahams failure to provide timely notice.

[4]

The motion judge dismissed the Citys motion,
    holding that Ms. Grahams failure to provide the 10-day notice did not bar her action
    as there was a reasonable excuse for the want or sufficiency of the notice and
    the City was not prejudiced in its defence: s. 42(8) of the Act. As well,
    notwithstanding the absence of a cross-motion by Ms. Graham and Mr. Mitchell,
    the motion judge granted them summary judgment dismissing the Citys statutory
    notice defence and declaring that the respondents action was not
    statute-barred by s. 42(6) of the Act, a form of the so-called boomerang or
    reverse summary judgment.

[5]

The City appeals. At the hearing, we dismissed
    the appeal, with reasons to follow. These are those reasons.

[6]

The City advances two grounds of appeal.

First ground:
    The summary judgment was the product of an unfair process

[7]

The City submits that the motion judge acted in
    a procedurally unfair manner by granting the respondents reverse summary
    judgment in the absence of a notice of cross-motion seeking such relief or
    notice to the City of the motion judges intention to grant such a judgment.

[8]

We are not persuaded by this submission.

[9]

As this court observed in
Drummond v.
    Cadillac Fairview Corporation Limited
, 2019 ONCA 447, at paras. 11-12,
    summary judgment motions are intended, in part, to achieve fair and just
    results. Consequently, where a responding party has not filed a notice of cross-motion
    that seeks summary judgment against the moving party yet the motion judge
    intends to grant judgment against the moving party, the court must give the
    moving party some notice of that litigation risk so that the moving party can
    address it. The lack of such notice may render any resulting reverse summary
    judgment unfair.

[10]

There are numerous ways by which a court can
    ensure that, in the absence of a formal cross-motion, a moving party has notice
    of the litigation risk of a reverse summary judgment, including: (i) in those
    judicial regions where scheduling a summary judgment motion must pass through
    some form of triage or practice court, the motion scheduling request form can
    inquire whether the responding party intends to ask for a reverse summary judgment;
    (ii) at the start of a motion hearing, the judge can inquire whether a reverse
    summary judgment will be sought; (iii) if, during the course of the hearing,
    the judge forms the view that he or she might grant a reverse summary judgment,
    the judge should so inform the parties to allow them to respond; or (iv) if,
    during the course of preparing reasons disposing of the motion the presiding
    judge forms the view that granting a reverse summary judgment might be
    appropriate in the circumstances, the judge should so inform the parties and
    afford them an opportunity to make further submissions.

[11]

In the present case, the motion judge adopted
    the latter approach. While her decision was under reserve, the motion judge
    emailed counsel to advise that she usually referred to some well-established
    precedents in my summary judgment decisions. She identified four decisions,
    providing pinpoint cites to specific paragraphs in each. The motion judge
    requested that counsel inform her if they wished to make submissions on the
    cases. Counsel advised that they did not wish to make submissions.

[12]

One of the four cases identified by the motion
    judge was
Meridian Credit Union Limited v. Baig
, 2016 ONCA 150, 394
    D.L.R. (4th) 601, leave to appeal refused, [2016] S.C.C.A. No. 173, with a
    pinpoint citation to para. 17, where LaForme J.A. wrote:

[17] I pause to note that Meridian had not
    brought a cross-motion asking for summary judgment in its favour. However, the
    motion judge did not err by granting summary judgment. Counsel for the
    appellant submitted that all of the relevant evidence was before the court and
    explicitly invited the motion judge to render a decision in favour of either
    party. Two recent decisions from this court make it clear that it is
    permissible for a motion judge to grant judgment in favour of the responding
    party, even in the absence of a cross-motion for such relief:
King Lofts
    Toronto I Ltd. v. Emmons
, 2014 ONCA 215, 40 R.P.R. (5th) 26, at paras.
    14-15; and
Kassburg v. Sun Life Assurance Company of Canada
, 2014 ONCA
    922, 124 O.R. (3d) 171, at paras. 50-52.

[13]

The motion judge was communicating with counsel
    for parties, not a self-represented litigant. Her reference to para. 17 of the
Meridian
    Credit Union
case clearly put counsel on notice that she was considering granting
    a reverse summary judgment; there was no other possible reason for the
    reference. By so doing, the motion judge put the parties on notice of the
    litigation risk of a reverse summary judgment and afforded them an opportunity
    to make submissions, which they declined. In those circumstances, we see no
    unfairness in the procedure followed by the motion judge.

Second ground: The motion judge erred in not
    finding the respondents action barred by s. 42(6) of the Act

[14]

The City submits that the motion judge erred in
    applying the twofold requirements of s. 42(8) of the Act: reasonable excuse and
    no prejudice to the City.

Reasonable
    excuse

[15]

As to the motion judges conclusion that Ms.
    Graham had demonstrated a reasonable excuse for not providing earlier notice,
    the City contends her analysis was tainted by several errors: misinterpreting s.
    42(6); effectively changing the two-prong legal test contained in the Act; and
    improperly considering Ms. Grahams subjective awareness of the significance of
    her injury rather than merely the fact of her injury, thereby wrongfully
    elongating the 10-day notice period.

[16]

We are not persuaded by these submissions.

[17]

As to the first alleged error, the motion
    judges reasons disclose that she identified and applied the prevailing
    jurisprudence of this court concerning ss. 42(6) and 42(8) of the Act. Her
    references to the interpretative principle of reasonableness and the notion of
    a modest excuse were both taken from recent jurisprudence of this court (
Azzeh
    v. Legendre
, 2017 ONCA 385, 135 O.R. (3d) 721, at fn. 4 and para. 75,
    leave to appeal refused, [2017] S.C.C.A. No. 289). In any event, the reasons
    clearly indicate that the motion judge never lost sight of the statutory
    obligation on Ms. Graham to demonstrate a reasonable excuse.

[18]

The other two errors alleged by the City essentially
    amount to asking this court to reweigh the various factors and evidence that
    led the motion judge to conclude Ms. Graham had demonstrated a reasonable
    excuse. We see no basis for this court to do so. To determine whether a
    plaintiff has demonstrated a reasonable excuse, a court must ascertain whether,
    in all of the circumstances of the case, it was reasonable for the plaintiff
    not to give notice until she did:
Seif v. Toronto (City)
, 2015 ONCA
    321, 125 O.R. (3d) 481, at para. 26,
per
Hoy A.C.J.O. (dissenting in
    part, but not on this point). The motion judges reasons disclose that she took
    into account all the circumstances, did not fail to appreciate relevant
    evidence, did not misapprehend the evidence, and did not draw any unreasonable
    inferences. In those circumstances, we see no basis for appellate intervention
    with her finding that Ms. Graham had demonstrated a reasonable excuse.

No prejudice

[19]

The City further submits that the motion judge erred
    in concluding that no genuine issue requiring a trial exists on the issue of
    whether the City would not be prejudiced in its defence by Ms. Grahams failure
    to give the 10-day notice. We are not persuaded by this submission.

[20]

The motion judge noted that the Citys affiant
    admitted that the alleged prejudice rested solely on the fact that the City did
    not take measurements of the pothole before it was repaired. Such measurements
    would be relevant to any defence by the City that it was not liable for keeping
    the crosswalk in a reasonable state of repair because at the time of Ms.
    Grahams fall it had met the minimum regulatory maintenance standards: Act, s.
    42(3)(c). The motion judge identified a large body of evidence that led her to
    conclude that the delay in giving notice would not prejudice the City in its
    defence: (i) Ms. Graham took clear photos of the pothole within the 10-day
    period; (ii) Mr. Mitchell gave evidence that he inspected the pothole on the
    day of the incident and estimated its depth at six inches; (iii) the City took
    photos of the pothole on January 19, 2018, seventeen days after Ms. Grahams
    fall, in response to a complaint about the hole by another person; (iv) the
    City field investigator who took the photos determined the pothole required
    repair, which was quickly done; (v) the City did not adduce any evidence
    explaining why the field investigator did not measure the dimensions of the
    pothole, although it had the opportunity to do so; and (vi) the respondents
    filed an expert report that opined on the dimensions of the pothole using the various
    January 2018 photos, yet the City did not cross-examine the expert.

[21]

Accordingly, ample evidence supported the motion
    judges conclusion that Ms. Graham had satisfied the no prejudice to the City
    in its defence element of s. 42(8) of the Act. We see no reversible error in
    that conclusion.

[22]

Finally, we do not accept the Citys argument
    that the motion judges decision somehow gives rise to the spectre of an
    inconsistent finding being made at trial. The motion judge did not make a
    finding about the dimensions of the pothole. Her decision does not preclude the
    City from advancing a defence that the crosswalk was in a state of proper
    repair based on the minimum standards for pothole repair set out in s. 6 of
Minimum
    Maintenance Standards

for Highways in the City of Toronto
, O.
    Reg. 612/06. Nor does it preclude the trial judge from rejecting the
    respondents experts evidence concerning the dimensions of the pothole.

DISPOSITION

[23]

For the reasons set out above, the appeal is
    dismissed.

[24]

The City shall pay the respondents their costs
    of the appeal fixed in the amount of $17,500, inclusive of disbursements and
    applicable taxes.

Janet
    Simmons J.A.

G. Pardu
    J.A.

David
    Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Feltz Design Build Ltd. v. Larson,
    2022 ONCA 150

DATE: 20220216

DOCKET: C69360

Strathy C.J.O., Roberts and
    Sossin JJ.A.

BETWEEN

Feltz Design Build Ltd.

Plaintiff (Respondent)

and

Kevin Gary
    Larson a.k.a. Kevin Larson, Larson Properties Partnership Group
, Bennington Financial Corp., Cosman Mortgage Capital Corporation
    and Olympia Trust Company

Defendants (
Appellants
)

Eric Kerson, for the appellants

Martha Cook, for the respondent

Heard: February 14, 2022 by
    video conference

On appeal from the judgment of Justice A. Duncan Grace of the
    Superior Court of Justice, dated April 1, 2021, with reasons reported at 2021
    ONSC 2469.

REASONS FOR DECISION

OVERVIEW

[1]

This appeal arises from a decision granting partial
    summary judgment arising out of a construction lien dispute. The appellant
    Larson Properties Partnership Group (LPPG) had retained the respondent Feltz
    Design Build Limited (Feltz) to provide construction services in relation to
    a property in Stratford, Ontario.

[2]

A dispute between the parties arose over alleged
    deficiencies in the construction work undertaken by Feltz and LPPGs refusal to
    provide payment for the work done.

[3]

In September 2019, Feltz registered a lien
    against the property for the unpaid fees. In January 2020, Feltz brought an
    action against the defendants for damages due to breach of contract and breach
    of trust. In October 2020, Feltz moved for summary judgment against the
    defendants LPPG and its principal, Mr. Larson under r. 20 of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194 but not as against the other
    defendants.

[4]

The motion was heard in January 2021. In an
    endorsement dated April 1, 2021, the motion judge granted summary judgment to
    Feltz against LPPG and Mr. Larson and ordered,
inter alia
, LPPG
    and Mr. Larson to pay Feltz $530,764.88 for breach of contract and breach of
    trust.

[5]

Subsequent to the decision on the summary
    judgment motion, in January 2022, on consent of the appellants, the remaining
    aspects of the action against two of the other three defendants (Bennington
    Financial Corp. and Cosman Mortgage Capital Corporation) were resolved by order
    of Rady J., including the lien enforcement proceedings. The third defendant,
    Olympia Trust Company, has been noted in default.

ANALYSIS

[6]

The appellants raise two grounds of appeal.
    First, the appellants argue that the motion judge erred in failing to find a
    genuine issue requiring a trial. Second, the appellants argue that the motion
    judge erred in finding that this matter was appropriate for partial summary
    judgment.

The motion judge did not err in finding no genuine issue
    requiring a trial

[7]

We would not give effect to the first ground of
    appeal.

[8]

The motion judge identified the proper standard
    on a motion for summary judgment under r. 20 of the
Rules of Civil
    Procedure
, citing
Hryniak v. Mauldin
, 2014 SCC 7, [2014] 1 S.C.R.
    87 and stating, at para. 22, [i]f the record assembled by the parties allows
    the motion judge to make necessary findings of fact, apply the law and reach a
    fair and just determination on the merits, there will be no need for a trial.

[9]

The motion judge explained his finding that summary
    judgment was appropriate by reference to the evidentiary record, at paras. 23-26:

[23] A substantial evidentiary record was
    compiled by the parties for the purposes of this motion. The affidavits of
    Hainsley Bailey, the project manager of Feltz and of Mr. Larson conflicted
    in various respects. When faced with allegations of delay, substandard work and
    unjustified billings, it is difficult to avoid an initial impression that the
    matter is unlikely to be ripe for a summary determination.

[24] However, the record did not end with the
    initial exchange of affidavit material. The plaintiff filed a supplementary
    motion record that contained an affidavit of the Consultants representative,
    Robert Ritz. That affidavit provided important context for the payment certificates
    and the certificate of substantial completion.

[25] Cross-examinations were conducted. A
    transcript of the lengthy cross-examination of Mr. Larson was filed. The
    plaintiffs solicitor filed a helpful factum. That was the only one the court
    received.

[26] Based on the totality of the record, I am
    of the view this case can be decided justly at this interlocutory stage. [Footnote
    omitted.]

[10]

On the record before him, the motion judge found
    that the defendants accepted that they owed Feltz money for the work completed
    under the contract but disputed the quantum.

[11]

The motion judge did not accept the defendants
    basis for disputing the quantum. The motion judge stated that counsel for the
    defendants had conceded the weakness of the defendants argument that Feltz had
    offered an all in contract and then charged more than had been quoted. The
    motion judge specifically rejected LPPCs submission that the agreement with
    Feltz was a fixed price contract, noting that the contract provided for an
    hourly rate for Feltz employees.

[12]

Having rejected LPPCs submission on that issue,
    the motion judge found that the contract required payment to be made on the
    certification of LPPCs consultant architect, who was to determine the amount
    owing by LPPC and to issue certificates of payment. After the dispute arose
    between the parties, the architect became involved and certified that Feltzs
    work had been substantially performed and Feltz was entitled to payment of the
    balance of the contract price.

[13]

The motion judge concluded his review of the
    record on the breach of contract claim by finding that LPPC owes Feltz the
    unpaid balance but is simply unwilling or unable to pay: at para. 39.

[14]

With respect to the breach of trust claim, the
    motion judge found that LPPC received funds impressed with a trust for the
    benefit of Feltz and failed to account for and remit those amounts
    notwithstanding certificates of substantial completion of Feltzs work,
    contrary to the trust obligation established under s. 7 of the
Construction
    Act
, R.S.O. 1990, c. C.30.

[15]

The motion judge found LPPC liable for breach of
    trust for the full amount of the outstanding debt, and that Mr. Larson was
    jointly liable given his knowledge and control over LPPCs operations.

[16]

The motion judges findings are entitled to
    deference and clearly were available on the record. We find no error in the
    motion judges analysis or conclusion.

There is no basis for appellate intervention on the
    partial summary judgment issue

[17]

With respect to the second ground of appeal, the
    granting of summary judgment was not partial with respect to the appellants.
    Rather, the judgment addressed the liability of the appellants and Feltzs
    claims against them in their entirety. The partial nature of the summary
    judgment, to the extent it can be characterized as such, related to the fact
    that other parties had encumbrances against the property as well and were
    included as defendants.

[18]

The appellants argue that in granting judgment
    for Feltz against the appellants, the motion judge did not address the narrow
    circumstances in which partial summary judgment will be warranted: see
Baywood
    Homes Partnership v. Haditaghi
, 2014 ONCA 450, 120 O.R. (3d) 438, at para.
    34;
Butera v. Chown, Cairns LLP
, 2017 ONCA 783, 137 O.R. (3d) 561, at
    para. 34; and
Heliotrope Investment Corporation v. 1324789 Ontario Inc.
,
    2021 ONCA 589, at para. 32. The factors to be considered in such a
    determination include whether the matter to be resolved by summary judgment
    could be bifurcated from the remaining litigation, dealt with in an expeditious
    and cost-effective manner, and whether the possibility of inconsistent findings
    by different courts could be avoided:
Butera
, at para. 34;
Malik
    v. Attia
, 2020 ONCA 787, at para. 62.

[19]

In this case, however, the respondent argues
    that the appropriateness of the partial summary judgment is no longer a live
    issue.

[20]

As set out above, subsequent to the motion
    judges decision, the parties have resolved the outstanding aspects of the
    litigation, with the exception of Olympia Trust Company, which has been noted
    in default. Consequently, the respondent takes the position that the partial
    summary judgment is now a full summary judgment decision.

[21]

The respondent relies on
Maystar General
    Contractors Inc. v. International Union of Painters and Allied Trades, Local
    1819
, 2008 ONCA 265, 90 O.R. (3d) 451, where this court held an
    appeal to be moot where the underlying basis for the appeal had fallen away as
    a result of post-judgment developments: at para. 28.

[22]

The appellants accept that there remains no
    concern regarding partial summary judgment with respect to the two defendants
    where the action by Feltz has been dismissed, but contend that since the action
    with respect to Olympia Trust Company remains alive, the partial summary
    judgment ground of appeal remains live as well.

[23]

In the alternative, the respondent contends that
    the motion judges granting of partial summary judgment was appropriate in the
    circumstances under the standard set out in
Hryniak
.

[24]

In our view, there is no basis for appellate
    intervention on this issue in this case. The concerns set out in
Baywood
    Homes
,
Butera
and
Heliotrope
do not arise in this case. No
    aspect of the liability toward Feltz remained in doubt following the judgment
    granted by the motion judge. The issue of any remedies for or against the other
    encumbrancers was a separate and discrete question, and one which for all
    intents and purposes is no longer extant.

DISPOSITION

[25]

For these reasons, we dismiss the appeal.

[26]

Feltz is entitled to costs, which are set at $12,500
    all inclusive.

G.R.
    Strathy C.J.O.

L.B.
    Roberts J.A.

L. Sossin
    J.A.


WARNING

An order restricting publication in
    this proceeding was made under s. 517 of the
Criminal Code
and
    continues to be in effect.  This section of the
Criminal Code
provides:

517(1)         If the prosecutor or
    the accused intends to show cause under section 515, he or she shall so state
    to the justice and the justice may, and shall on application by the accused,
    before or at any time during the course of the proceedings under that section,
    make an order directing that the evidence taken, the information given or the
    representations made and the reasons, if any, given or to be given by the
    justice shall not be published in any document, or broadcast or transmitted in
    any way before such time as

(a)     if a preliminary inquiry
    is held, the accused in respect of whom the proceedings are held is discharged;
    or

(b)     if the accused in respect of whom the
    proceedings are held is tried or ordered to stand trial, the trial is ended.

Failure to comply

(2)     Everyone who fails without
    lawful excuse, the proof of which lies on him, to comply with an order made
    under subsection (1) is guilty of an offence punishable on summary conviction.

(3)     [Repealed, 2005, c. 32, s.
    17]

R.S., 1985, c. C-46, s. 517; R.S.,
    1985, c. 27 (1st Supp.), s. 101(E); 2005, c. 32, s. 17.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Wright, 2022 ONCA 151

DATE: 20220216

DOCKET: M53129

Fairburn
    A.C.J.O. (Motion Judge)

BETWEEN

Her
    Majesty the Queen

Respondent

and

Robert Steven Wright

Applicant

Michael Lacy and Bryan Badali, for the
    applicant

Jeremy D. Tatum, for the respondent

Heard: February 11, 2022 by
    video conference

[1]

A non-publication order under ss. 517 of the
Criminal
    Code
, R.S.C. 1985, c. C-46,
was imposed in this matter at the bail hearing in the court below. That order
    precludes the publication, broadcast, or transmission of any evidence taken,
    information given, representations made, and reasons given.

[2]

The decision in
R. v. Wright
, 2022 ONCA 151
, contains information
    covered by that order.

[3]

Accordingly, the decision will be available on
    the Court of Appeal for Ontarios website once the non-publication order ceases
    to be in effect.

[4]

In the interim, a copy of the full decision is
    available at the Registry of the Court of Appeal for Ontario at 130 Queen
    Street West, Toronto.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Young, 2022 ONCA 153

DATE: 20220217

DOCKET: C67437

Fairburn A.C.J.O., Doherty and
    Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Alexander Young

Appellant

Enje Daniels and Isaac Heo, for the
    appellant

Erica Whitford, for the respondent

Heard: February 10, 2022 by
    video conference

On appeal from the convictions entered
    by Justice Lucy C. Glenn of the Ontario Court of Justice on January 8, 2019.

REASONS FOR DECISION

[1]

This is an appeal from three convictions for sexual assault with a
    weapon.
[1]
The weapons were a belt, a cane, a
    folded piece of plastic siding, and a broken coat hanger. The complainant was
    the appellants wife.
[2]

[2]

The appeal rests solely on an ineffective assistance of counsel claim.
    We dismissed the appeal with written reasons to follow. These are our reasons.

[3]

The appellant focused upon two issues during oral argument. Although the
    factum referred to other issues, all ultimately turned on the credibility of
    the affidavit filed by the appellant as fresh evidence. As will be explained
    below, that affidavit is not credible. We see no need in these reasons to
    address the arguments raised in the factum but not addressed in oral argument.

[4]

First, the appellant claims that the trial was unfair because counsel
    failed to inform him about the available modes of trial and, more specifically,
    about his right to a preliminary inquiry. Second, he claims that the verdict
    was unreliable because counsel failed to lead evidence that the complainant had
    a potential motive to fabricate.

[5]

To succeed on a claim of ineffective assistance of counsel, an appellant
    holds the onus of establishing three things:

(1)

the facts upon which the claim rests (the factual
    component);

(2)

that the facts reveal ineffective representation (the
    performance component); and

(3)

that a miscarriage of justice has resulted from the
    ineffective representation (the prejudice component).

See
R. v. Girn
, 2019 ONCA
    202, 145 O.R. (3d) 420, at para. 91.

[6]

Turning to the first issue, whether the trial was
    rendered unfair because trial counsel failed to adequately inform the appellant
    about the different modes of trial, we are unpersuaded.

[7]

As is typical in appeals involving ineffective
    assistance claims, the fresh evidence includes an affidavit from the appellant
    and a transcript of his cross-examination. That transcript reveals that the
    appellants complaint morphed between examination-in-chief and
    cross-examination. He initially suggested that his counsel did not inform him
    about the various modes of trial. That position changed during
    cross-examination, where he acknowledged that he in fact knew that he could
    have a trial in the Ontario Court of Justice or the Superior Court of Justice,
    and that one of his options in the Superior Court of Justice was to be tried by
    a judge and jury.

[8]

Having acknowledged that fact, the appellants
    complaint seemed to become that he did not actually make a choice, but rather
    wanted whatever [his] lawyer suggested would be  better. At the same time,
    he acknowledged that his primary concern was to obtain an expeditious trial.
    Trial counsels evidence demonstrates that he clearly understood the
    appellants concern about a speedy trial and, therefore, recommended the matter
    be tried in the Ontario Court of Justice.

[9]

We are satisfied that the appellant clearly understood
    the various modes of trial and that he was prepared to accede to counsels
    suggestion as to how to obtain the most expeditious trial.

[10]

As for the appellants suggestion that he was not
    informed about his entitlement to a preliminary inquiry, he has failed to meet
    his onus.

[11]

Trial counsel candidly admits that he has no specific
    recollection of informing the appellant about the potential for a preliminary
    inquiry. While it is trial counsels normal practice to explain this to his
    clients, he acknowledges that he has no specific note or recollection of having
    done so in this case. Therefore, he cannot definitively say that he followed
    his usual practice.

[12]

What counsel does very clearly recall is that he told
    his client about the various modes of trial and was given unequivocal
    instructions about getting the matter to trial as quickly as possible. In his
    view, that meant a trial in the Ontario Court of Justice.

[13]

Counsels lack of memory on this point does not tip the
    scales toward proof that the claim has been made out. This is particularly true
    in the face of a strong presumption of counsels competence: see
R. v.
    G.D.B.
, 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 27. Even assuming that
    information about a potential preliminary inquiry properly falls under the
    rubric of modes of trial, the onus remains squarely on the appellant to prove
    that he was not given this information. In our view, the appellants evidence
    falls well short of establishing this fact.

[14]

For a number of reasons, we do not accept his evidence
    on this point because he lacks credibility. In our view, the appellants
    commitment to the truth is undetectable. For instance, the appellant admitted
    during cross-examination on his affidavit, which was filed in this court as
    fresh evidence, that he lied under oath at trial. Those lies included having testified
    at trial that he would never strike anyone with anything, explaining that he
    had an aversion to doing so because he was hit with a belt as a child. Yet, in
    the fresh evidence filed in this court, the appellant has admitted that he
    struck his wife with objects, including a belt, because she asked him to do so,
    and that he was afraid that he would get a good beating if he did not do as
    she asked. There is no indication in the record that the appellant in any way
    appreciates the fact that his sworn evidence on appeal belies his sworn
    evidence at trial.

[15]

In addition, read as a whole, the appellants evidence
    is entirely self-serving, internally inconsistent, and reflective of either
    intentional lies or memory issues. In our view, his evidence simply cannot be
    trusted.

[16]

In these circumstances, we decide this ground of appeal
    on the basis that the appellant has failed to demonstrate his claim that he was
    not told about the possibility of a preliminary inquiry. This conclusion should
    not be taken as suggesting that a failure to tell a client about the
    possibility for a preliminary inquiry would necessarily result in a miscarriage
    of justice. We leave for another day whether imperfections in the manner that a
    client is told about possible modes of trial are all necessarily equal and have
    the same impact on the fairness of the subsequent trial.

[17]

In this case, though, we need not get into the legal
    consequences arising from such a failure because we are not satisfied that the
    appellant was not told about the preliminary inquiry.

[18]

As to the second issue, the appellant argues that the
    verdict is unreliable because trial counsel failed to lead evidence that the
    complainant had a potential motive to fabricate. That motive to fabricate is
    said to arise from the fact that immediately prior to the police complaint
    being made, the appellant advised the complainant that he would be seeking
    custody of their children. The purported motive to fabricate, then, is said to
    arise from the complainants desire to obtain an advantage in the custody
    dispute.

[19]

We are unable to accept this submission. While there
    was in fact an active custody dispute at the time that the complainant reported
    this matter to the police, the fact is that she had previously made those
    allegations to others long before the matter was reported to the police or the
    custody dispute commenced. Among those she reported to was the appellants
    mother, who confirmed that fact in her evidence at trial.

[20]

In these circumstances, raising motive would have had
    no impact on the result of this case and, therefore, at a minimum, the
    appellant falls short on proving the prejudice component of the test.

[21]

These are the reasons we dismissed the conviction
    appeal.

[22]

The sentence appeal was abandoned.

Fairburn A.C.J.O.

Doherty J.A.

David M. Paciocco J.A.

[1]
While the
      appellant originally sought leave to appeal his sentence, he has since served
      his full sentence and therefore abandoned his sentence appeal.

[2]
While this matter was initially subject to a publication ban under
      s. 486.4 of the
Criminal Code
, R.S.C., 1985, c. C-46, that ban was
      removed at the request of the complainant on April 25, 2019. We have asked for
      and received confirmation of this fact.