COURT OF APPEAL FOR ONTARIO

CITATION: Clarke v. Sun Life Assurance Company of Canada,
    2020 ONCA 11

DATE: 20200108

DOCKET: C67056

Brown, Huscroft and Trotter JJ.A.

BETWEEN

April Clarke

Plaintiff (Respondent)

and

Sun Life Assurance Company of Canada

Defendant (Appellant)

Linda Plumpton and Davida Shiff, for the appellant

Allan Chapnik, for the respondent

Heard: December 18, 2019

On appeal from the
    order of Justice Janet Leiper of the Superior Court of Justice dated May 14,
    2019, with reasons reported at 2019 ONSC 2942, 147 O.R. (3d) 55.

BROWN
    J.A.:

OVERVIEW

[1]

Sun Life Assurance Company of Canada brought a summary judgment motion
    to dismiss, as statute-barred, Ms. Clarkes action for long-term disability
    benefits under a group policy of insurance. The motion judge dismissed the
    motion and, instead, declared that Ms. Clarkes action was not statute-barred as
    the limitation period for the action commenced on June 19, 2017, a little over
    a year before Ms. Clarke issued her claim. Sun Life appeals, asking this court
    to set aside the order below and dismiss Ms. Clarkes action.

[2]

For the reasons set out below, I would allow the appeal in part.

BACKGROUND
    FACTS

[3]

Ms. Clarke was employed by Canada Post. Sun Life was the insurer for
    Canada Posts group disability insurance plan. Ms. Clarke was a member of the
    plan.

[4]

Under the plan, an insured employees eligibility for total disability
    benefits was determined by reference to two periods of time. In the first
    period, which covered the plans elimination period and the following 24
    months, the plan treated as totally disabled an insured who was prevented
    from performing the essential duties of her regular or Own Occupation. For
    the period beyond the 24 months, the plan treated an insured as Totally Disabled
    for Any Occupation if she was prevented from engaging in any commensurate
    occupation for which she was or became reasonably qualified by education,
    training, or experience.

[5]

Ms. Clarke made a claim for long-term disability benefits after she
    stopped working due to health problems in 2011.  In a letter dated March 19,
    2012, Sun Life denied her claim, stating that it was unable to establish her
    total disability from returning to her own occupational duties. The letter
    informed Ms. Clarke that three levels of appeal were available to her. The
    appeal process was not a term of the plan of insurance but a practice by Sun
    Life that its counsel described as the operationalization of the duty of good
    faith of the insurer.

[6]

Ms. Clarke appealed.

[7]

By letter dated February 24, 2014, Sun Life wrote to Ms. Clarke to tell
    her that it had approved disability benefits for the Own Occupation period,
    which had ended in April 2013. The letter went on to tell Ms. Clarke that the
    medical information she had provided did not support her claim for Any
    Occupation total disability benefits. Specifically, the letter stated:

The current medical information in your file does not appear to
    support Total Disability from Any Occupation. Therefore your last payment date
    is
April 25, 2013
and your LTD file is now closed.

Should you feel Totally Disabled from Any Occupation, you will
    need to provide medical information for our review. You will need to [provide]
    objective medical information including diagnosis, treatment, complications to
    date preventing you from working in any occupation.
Kindly note this is
    your responsibility.
[Emphasis in original.]

[8]

On February 26, 2014, Ms. Clarke and her union representative spoke to
    Sun Life and advised that she would appeal the Any Occupation phase. Sun
    Lifes call record of that conversation went on to state: Union Rep stated
    that PMs [Plan Members] doctor dont think that PM is TD any [Totally
    Disabled Any Occupation], but due to a recent surgery in January/2014, PM needs
    few more months of LTD [long-term disability] benefits, she said maybe 1 more
    year of LTD benefits.

[9]

The record before us does not disclose any further contact between Ms.
    Clarke and Sun Life over the next three years.
[1]
It was not until March 2017 that Ms. Clarke provided Sun Life with further
    medical information for her Any Occupation claim.

[10]

By letter dated April 24, 2017, Sun Life informed Ms. Clarke that your
    request for a review of our decision is now being considered at the first level
    of appeal.

[11]

On June 19, 2017, Sun Life wrote to Ms. Clarke about the decision at
    the appeal process. The letter reviewed the merits of Ms. Clarkes claim for Any
    Occupation benefits, explaining in some detail why it maintained the position
    that she did not qualify for Any Occupation total disability benefits. The
    letter stated: [W]hile we are pleased that we could issue payments for a
    considerable period, the current information on file is not sufficient to
    overturn our prior decision. Like the February 24, 2014 letter, the June 19,
    2017 letter advised Ms. Clarke that her file was closed; as well, it did not
    use the word deny in its text.

[12]

The June 19, 2017 letter informed Ms. Clarke that a final level of
    appeal was available. The letter concluded with a statement that Sun Life had
    not included in its previous communications with Ms. Clarke:

Our consideration of an appeal shall not constitute a waiver of
    any of our rights under the policy or otherwise, including with respect to the
    applicable limitation period. If you decide to take legal action against Sun
    Life, please be advised that your claim is subject to a limitation period. This
    limitation is set out in the
Limitations Act, 2002
[S.O. 2002, c. 24,
    Sched. B] or in the applicable contractual provisions.

[13]

On August 2, 2018, Ms. Clarke issued her statement of claim seeking the payment
    of arrears of long-term disability benefits from the cessation of payments on
    April 25, 2013.

[14]

Sun Life brought a motion for summary judgment to dismiss the action as
    statute-barred, which the motion judge denied. Sun Life appeals.

ANALYSIS

The day on which the injury,
    loss or damage occurred

[15]

The motion judge started her analysis under the
Limitations Act,
    2002
by considering the date the injury, loss or damage occurred: ss.
    5(1)(a)(i) and (b). The motion judge did not accept Sun Lifes submission that
    the February 24, 2014 letter marked the time at which Ms. Clarke first knew
    that an injury, loss or damage had occurred. She described the letter as
    equivocal and noted that it did not use the language of refusal or denial:
    at para. 21. She concluded that it was not clear that the words used by the
    Sun Life letter of February 24, 2014 [were] a denial of disability benefits
    that amounted to injury, loss or damage: at para. 23. She ultimately found,
    at para. 30, that the limitation period commenced with the denial communicated
    to Ms. Clarke by Sun Life on June 19, 2017, notwithstanding that that letter
    also did not use language of denial.

[16]

With respect, the motion judge erred in law by failing to apply the
    principle stated by this court in
Pepper v. Sanmina-Sci Systems (Canada)
    Inc.
, 2017 ONCA 730, [2018] I.L.R. I-5996, at para. 1, that an insured has
    a cause of action for breach of contract against her insurer when the insurer
    stops paying long-term disability benefits. In its February 24, 2014 letter,
    Sun Life informed Ms. Clarke that her disability benefits terminated as of
    April 25, 2013, which was the date the Own Occupation benefits period ended.
    Sun Life went on to state that it would not pay Any Occupation benefits.
    Accordingly, by February 24, 2014, a loss, injury or damage had occurred that
    would have been known to a reasonable person with the abilities and in the
    circumstances of Ms. Clarke:
Limitations Act, 2002
, ss. 5(1)(a)(i) and
    (b).

[17]

I note that in reaching her conclusion on s. 5(1)(a)(i), the motion
    judge relied on the decision of the Divisional Court in
Western Life
    Assurance Company v. Penttila
, 2019 ONSC 14, 144 O.R. (3d) 198. The motion
    judge appears to have misapplied
Western Life Assurance
on the issue
    of when an insured knows that a loss, injury or damage has occurred. As that
    decision clearly stated, at para. 17, the parties agreed that for the purposes
    of s. 5(1)(a)(i) the insured knew that a loss had occurred on the date her
    benefits came to an end, which is the governing principle as stated in
Pepper
.

A proceeding would be an appropriate means

[18]

The motion judge next considered the issue of when a proceeding would be
    an appropriate means to remedy the loss, injury or damage:
Limitations Act,
    2002
, ss. 5(1)(a)(iv) and (b). For the reasons that follow, I conclude
    that the motion judge failed to conduct the analysis required by the Act on
    this point.

[19]

The discoverability analysis required by ss. 5(1) and (2) of the Act
    contains cumulative and comparative elements.

[20]

Section 5(1)(a) identifies the four elements a court must examine cumulatively
    to determine when a claim was discovered. When considering the four s.
    5(1)(a) elements, a court must make two findings of fact:

(i)       The court must
    determine the day on which the person with the claim first knew all four of
    the elements. In making this first finding of fact, the court must have regard
    to the presumed date of knowledge established by s. 5(2): A person with a
    claim shall be presumed to have known of the matters referred to in clause (1) (a)
    on the day the act or omission on which the claim is based took place, unless
    the contrary is proved; and

(ii)      The court must also
    determine the day on which a reasonable person with the abilities and in the
    circumstances of the person with the claim first ought to have known of the
    four elements identified in s. 5(1)(a).

Armed with those two findings of fact, s. 5(1) then
    requires the court to compare the two dates and states that a claim is
    discovered on the earlier of the two dates: see
Nasr Hospitality Services
    Inc. v. Intact Insurance
, 2018 ONCA 725, 142 O.R. (3d) 561, at paras. 34-35.

[21]

Accordingly, as part of her cumulative and comparative discoverability
    analysis, the motion judge was required to determine (i) the day on which Ms.
    Clarke first knew  that, having regard to the nature of the injury, loss or
    damage, a proceeding would be an appropriate means to seek to remedy it (s.
    5(1)(a)(iv)) and (ii) the day on which a reasonable person with the abilities
    and in the circumstances of Ms. Clarke first ought to have known of that matter
    (s. 5(1)(b)).

[22]

The motion judges reasons disclose that she failed to make any specific
    finding about either date.

[23]

Although the motion judge noted, at paras. 30(iii) and (iv), that Ms.
    Clarkes three-year delay in providing additional medical information was
    unexplained and her evidence was silent as to her knowledge, intentions or
    assumptions about the matter, the motion judge was not prepared to draw any
    inferences from this absence of evidence. Read as a whole, her reasons disclose
    that she was not able to determine when Ms. Clarke first knew that a proceeding
    would be an appropriate means to seek to remedy her injury.

[24]

In that circumstance, the motion judge was required to deal with s. 5(2)
    of the Act, which presumes that a person with a claim knows of the matters in
    s. 5(1)(a) on the day the act or omission on which the claim is based took
    place, unless the contrary is proved. Applying the presumption requires the
    court to assess whether the claimant had acted with due diligence in determining
    if she had a claim:
Miaskowski v. Persaud
, 2015 ONCA 758, 393 D.L.R.
    (4th) 237, at paras. 24-27. The motion judge did not deal with the s. 5(2) presumption
    or the related obligation of the insured to act with due diligence.

[25]

Given the motion judges failure to make the requisite findings of fact
    in respect of ss. 5(1)(a)(iv), (b), and (2), her conclusion that Sun Life had
    not established the elements of a limitation defence under ss. 4 and 5 of the Act
    lacked an adequate legal and factual foundation. For that reason, her order must
    be set aside.

[26]

I do not consider this to be an appropriate case to exercise this
    courts fact-finding powers under
Courts of Justice Act
, R.S.O. 1990,
    c. C.43, s. 134(4), in respect of ss. 5(1)(a)(iv), (b), and (2), including the
    issue of Ms. Clarkes due diligence. No examinations for discovery or
    cross-examinations have been conducted in this proceeding. A fuller record is
    required to assess, for the purposes of the s. 5(1)(a)(iv) analysis, the
    significance of the informal appeal process offered by Sun Life and engaged by
    Ms. Clarke, including whether that process constituted an alternative process with
    a reasonably certain or ascertainable date on which it runs its course or is
    exhausted, as required by
Presidential MSH Corporation v. Marr Foster &
    Co. LLP
, 2017 ONCA 325, 135 O.R. (3d) 321, at para. 48. Accordingly, the remaining
    issues related to the limitation period defence are more appropriately
    determined through some form of trial.

DISPOSITION

[27]

I would grant the appeal, set aside the order of the motion judge, and
    direct that the action proceed to trial.

[28]

The parties agreed that the successful party on the appeal should be
    awarded costs of $10,000, inclusive of disbursements and applicable taxes. Success
    on the appeal has been divided. Accordingly, I would fix the costs of the
    appeal at $10,000 but order that they be payable in the ultimate cause of the
    action.

Released: DB JAN 08 2020

David Brown J.A.

I agree. Grant
    Huscroft J.A.

I agree. Gary Trotter
    J.A.

[1]
This unexplained lengthy period of inactivity by Ms. Clarke in pursuing an
    appeal factually distinguishes this case from the situation in
Western Life Assurance Company v. Penttila
,
    2019 ONSC 14, 144 O.R. (3d) 198 (Div. Ct.), a case relied upon by Ms. Clarke.
    The lack of contact between the insured and insurer over the three-year period
    differentiates this case from the circumstances in
Kassburg v. Sun Life Assurance Company of Canada
,
    2014 ONCA 922, 124 O.R. (3d) 171.


COURT OF APPEAL FOR ONTARIO

CITATION: Conroy v. Vassel, 2020 ONCA 14

DATE: 20200108

DOCKET: C67278

Sharpe, Juriansz and Trotter JJ.A.

BETWEEN

David Conroy, Dana
    Conroy and Collin Conroy

Plaintiff/Appellant

and

Donna Vassel

Defendant/Respondent

David Conroy, in person

Joseph Figliomeni and Jonah Waxman, for the respondent

Heard and released orally: January 6, 2020

On appeal from the
    order of Justice Michael A. Penny of the Superior Court of Justice, dated July
    8, 2019.

REASONS FOR DECISION

[1]

The appellant no longer appeals the dismissal of his property claim. He
    appeals only the dismissal of his action for spousal support and return of the
    bracelet. His real concern is the costs award made by the motion judge.

[2]

In our view, the motion judge did not err by striking the statement of
    claim. It was an inappropriate method to present the claims advanced by the
    appellant. However, reading the record as a whole, we do not see this so much
    as a case of abuse of process as the product of confusion on the part of an
    in-person litigant. The appellant did offer to amend and refile his proceedings
    on a case management motion and was told to proceed on the basis of the
    existing record. When making his costs order the motion judge said that the
    costs order made by Justice Belobaba was apparently not a sufficient message.
    In our view, there was no clear message but rather confusion on the part of
    this in-person litigant.

[3]

In these circumstances, we reduce the costs of the motion from $7,500 to
    $2,500 but otherwise, dismiss the appeal. No order as to costs of this appeal.

R.J. Sharpe J.A.

R.G. Juriansz J.A.

Gary Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Elbasiouni v. Brampton (City), 2020 ONCA 43

DATE: 20200124

DOCKET: M50596

Feldman, Brown and Zarnett JJ.A..

BETWEEN

Ahmed
    Elbasiouni

Moving Party

and

The Chief Building Official (CBO) the Corporation
    of the City of Brampton

Responding Party

Ahmed Elbasiouni, acting in person

Charles A. Painter, for the responding party

Heard: In writing January 22, 2020

REASONS FOR DECISION

[1]

The appellant seeks leave to appeal a decision of the Divisional Court,
    dismissing appeals from three orders of the Superior Court affirming the
    dismissal of an appeal from a decision of the Chief Building Official of the
    City of Brampton.

[2]

Motions for leave to appeal from the Divisional Court under s. 6(1)(a)
    of the
Courts of Justice Act
, R.S.O 1990, c. C.43, are heard by this
    court in writing and in most cases, they are disposed of without reasons.

[3]

In this case, the respondent took the position that the motion for leave
    should be dismissed on the basis that there is no appeal to this court
    available, and in the alternative, that leave should not be granted applying
    the criteria under the
Sault Dock test: Sault Dock Co. Ltd. v. Sault Ste.
    Marie (City)
, [1973] 2 O.R. 479 (C.A.).

[4]

The purpose of these reasons is to clarify that leave to appeal to the
    Court of Appeal in accordance with s. 6(1)(a) of the
Courts of Justice Act
remains available for a decision of the Divisional Court made under s. 26 of
    the
Building Code Act
, 1992
,

S.O. 1992, c. 23. Such
    leave is not precluded by ss. 25 and 26 of the
Building Code Act
,
    1992
, which provide that a decision of an inspector or chief building
    official may be appealed first to a judge of the Superior Court, and then to
    the Divisional Court on the grounds and with the powers set out in those
    sections.

[5]

The motion for leave to appeal is dismissed on the alternative ground, with
    costs fixed at $500.00 inclusive of disbursements and HST.

K.
    Feldman J.A.

David
    Brown J.A.

B.
    Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Gajewski (Re), 2020 ONCA 4

DATE: 20200106

DOCKET: M50960 (C67007)

Strathy
    C.J.O. (Motions Judge)

IN
    THE MATTER OF:  BARTOSZ GAJEWSKI

AN
    APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti, for the appellant/responding
    party

Joanne Stuart, for the respondent/responding
    party, Attorney General of Ontario

Michele
    Warner, for the respondent/responding party, the Person in Charge of the Centre
    for Addiction and Mental Health (CAMH)

Sheila Block,
    for the moving party (proposed intervener), K.N.

Michael
    Davies, for the moving party (proposed intervener), the Empowerment Council

Heard: November 6, 2019

REASONS
    FOR DECISION

[1]

K.N. seeks leave to intervene as a person
    interested in this appeal from a disposition of the Ontario Review Board in
    respect of the appellant, Bartosz Gajewski. The motion is brought pursuant to rr.
    23 and 38(3) of the
Criminal Appeal Rules
, SI/93-169, and r. 13 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194.

[2]

The Empowerment Council, Systemic Advocates in
    Addiction and Mental Health, also seeks leave to intervene if K.N.s motion is
    successful.

[3]

I dismissed K.N.s motion with reasons to
    follow. These are my reasons.

I.

Background

[4]

In 2003, Mr. Gajewski became infatuated with
    K.N. She had done nothing to give him reason to be, and his feelings for her
    were not in any way reciprocated. He was later charged with criminal harassment
    and threatening bodily harm against her. The charges were withdrawn after he
    entered into a peace bond.

[5]

Mr. Gajewski had no further contact with K.N.
    until September 17, 2009 when the index offences occurred.

[6]

He dragged her from her car and down the street
    and attempted to kidnap her in the name of Jehovah God under a delusion that
    she and her father were involved in a conspiracy to commit crimes against him.
    He was charged with the index offences, assault and forcible confinement of
    K.N. He was subsequently diagnosed as suffering from a delusional disorder of a
    persecutory nature.

[7]

K.N. was injured in the course of the attack. The
    attack has had a lasting impact on her. To this day, she remains terrified of
    Mr. Gajewski. If granted leave to intervene, she proposes to submit that the
    Board erred in failing to impose a geographic boundary as a term of Mr.
    Gajewskis release in order to protect her psychological and physical security.

[8]

To put her motion in context, it is necessary to
    briefly review the history of this matter before the ORB and in this court.

II.

Proceedings before the ORB

[9]

On March 24, 2011, Mr. Gajewski was found not
    criminally responsible by reason of a mental disorder. He has been under the
    jurisdiction of the Ontario Review Board since that date.

[10]

At his annual hearing in 2012, the ORB ordered
    that Mr. Gajewski be detained in the Secure Forensic Unit at CAMH. In 2013 and
    2014, the ORB found that he remained a significant threat to the safety of the
    public and ordered that he continue to be detained in the Secure Forensic Unit,
    with privileges up to and including accompanied hospital and ground privileges.
    Mr. Gajewski appealed both decisions. The appeals were heard on April 24, 2014
    and May 6, 2015 respectively, and were dismissed by this court: 2014 ONCA 332; 2015
    ONCA 332.

[11]

In December 2015, Mr. Gajewski was transferred
    to the General Unit at the hospital. At his annual review in 2016, the ORB
    found that the appropriate disposition was detention in the General Unit, with
    indirectly supervised entry into the community of Toronto on passes for up to
    seven days. The Board also ordered that Mr. Gajewski refrain from coming within
    500 metres of K.N.: 2016 CarswellOnt 17990.

[12]

The Crown appealed, arguing that the condition
    allowing Mr. Gajewski indirectly supervised entry into the community was
    unreasonable, and that K.N.s father should also have been included in the 500-metre
    boundary condition. This court allowed the appeal in part, holding that K.N.s
    father should be included in the restriction, but that the indirectly
    supervised entry into the community was not unreasonable: 2017 ONCA 354.

[13]

The issue of a boundary or geographic restriction
    in the terms of Mr. Gajewskis release  the subject of K.N.s proposed
    intervention submissions  was first raised by the Crown at his annual review
    in 2016. In the event Mr. Gajewski was granted indirectly supervised passes or
    community living, the Crown sought to create an exclusion zone around the
    area where K.N. and her father lived and worked. K.N. and her father appeared
    at the hearing, but after inconclusive attempts by the parties to resolve the
    issue, the Board observed:

[The Crown] sought a boundary condition in the
    disposition in the event the accused was permitted to exercise indirectly
    supervised passes or to live in the community. Possible boundaries were
    proposed and discussed but, in the absence of information regarding the addresses
    at which the victim lives and works, no agreement was reached with respect to
    the issue.

[14]

The Board did not accept the Crowns submission
    that a geographic boundary should be imposed. It held:

The panel is of the opinion an area of
    exclusion with defined boundaries provides illusory reassurance to victims of
    crime, and finds an area of exclusion around individuals more effective in
    securing those persons safety than a defined geographical area. The panel
    devoted considerable thought to ensuring the safety of the victim in this
    matter and concluded a moving exclusion zone better fulfills that goal. Victims
    are entitled to feel secure wherever they may be and not only within a defined
    area. Combining the two adds no further security. Accordingly, Mr. Gajewski
    will be prohibited from attending within 500 metres of anywhere [K.N.] lives,
    works, worships, or is known by him to be.

[15]

The Crown renewed its request for a geographic
    boundary at the 2018 annual hearing. A majority of four of the five Board
    members declined to alter the 2016 disposition: 2018 CarswellOnt 9761. The
    dissenting member found that the risk to the safety of the public could be
    minimized by including in the disposition a geographic envelope within which
    Mr. Gajewski would not be allowed to travel. She stated:

Imposition of this geographic restriction
    could have an additional benefit in that it could also serve to impede any
    efforts at surveillance by Mr. Gajewski. In addition, I believe that a
    non-contact clause with the victim of the offence and her father as described
    in the reasons of the majority should also be included.

[16]

The Crown did not appeal the disposition.

[17]

At his 2019 annual review, which is the subject
    of this appeal, the Crown, relying on the dissent in the 2018 decision, again
    sought a boundary restriction. In support of the argument, K.N. filed a victim
    impact statement, as she had done at previous hearings. The statement noted
    that, while K.N. understood that a person deemed NCR should have access to the
    best possible treatment in order for the potential to improve and be able to
    return to the community, the ORB was tasked with protecting her and her
    father. She claimed that a boundary restriction is the only circumstance that
    can to some degree ensure [her] safety and that of [her] father. Mr. Gajewskis
    attending psychiatrist, who had testified at previous hearings, opined that a
    geographic boundary restriction was unnecessary.

[18]

The Board unanimously rejected the Crowns
    request, finding that a geographic boundary was unnecessary: 2019 CarswellOnt
    10003. The hearing panel included the member who had dissented at the 2018
    hearing. The Board stated:

We note that Mr. Gajewski has not had any such
    limitations for over a year and there has been no indication that there has
    been any attempts to contact the victim or members of her family. Given the
    fact that there has been no attempt to contact the victim, and a Detention
    Order which would permit the Hospital and the police to move quickly if there
    were to be any attempt to contact, we are of the view that it is unnecessary to
    include a geographical boundary limitation in the upcoming disposition.

[19]

However, the Board maintained the condition
    requiring Mr. Gajewski to refrain from contacting K.N., her father, or her
    lawyer, and not knowingly coming within 500 metres of K.N. or her father.

III.

Mr. Gajewskis Condition

[20]

K.N. submits that the evidence demonstrates that
    Mr. Gajewskis delusional beliefs are persistent and unchanged, and that he
    lacks insight into his illness and the need for treatment.

[21]

For the purpose of this motion, I accept that
    K.N. has a reasonable concern for her physical and psychological well-being and
    for that of her father.

IV.

The Parties Submissions

[22]

K.N. does not seek to intervene as a friend of
    the court in the traditional sense. Nor does she seek to intervene by virtue of
    her status as a past victim of Mr. Gajewskis delusions. She asserts a direct
    interest in the appeal because she is the only target of Mr. Gajewskis
    persistent delusions and her future safety is at issue. She maintains that her
    safety should have been the Boards paramount consideration when it considered
    whether Mr. Gajewski was a significant risk to the safety of the public.

[23]

Because the Crown has not appealed the ORBs
    refusal to impose a geographic boundary, she points out that her voice will not
    be heard unless she is granted leave to intervene. She says that the Board
    erred in law in finding that it was unnecessary to impose a geographic
    boundary, when the test was whether the boundary was desirable. Applying this
    higher standard was an error in law.

[24]

Counsel on behalf of the Hospital takes no
    position on the proposed intervention. Nor does counsel on behalf of the
    Attorney General, although she points out that it is unprecedented in the
    context of Ontario Review Board appeals to grant intervenor status to a
    complainant.

[25]

Counsel for Mr. Gajewski says that K.N.s motion
    contravenes a basic rule of interventions  it raises an issue that is not
    raised by the parties and is therefore unfair and prejudicial to Mr. Gajewski.
    Moreover, the issue of a geographic boundary has been raised and dealt with at
    the past three annual reviews (2016, 2018, and 2019) and has each time been
    resolved against the position taken by K.N. The Crown, which has put a voice to
    K.N.s concerns, has finally accepted this position and it is time for K.N. to
    do the same.

[26]

As noted above, the Empowerment Council will not
    pursue its request for intervener status if K.N. is not granted leave.

V.

Analysis

[27]

It is beyond dispute that absent a constitutional
    issue, leave to intervene is seldom granted in criminal appeals:
R. v.
    McCullough
(1995), 24 O.R. (3d) 239 (C.A.), at p. 243. A proposed
    intervener must be able to make a useful contribution beyond that which would
    be offered by the parties and without causing an injustice to the immediate
    parties:
McCullough
, at p. 243;
R. v. Bedford
, 2009 ONCA 669,
    98 O.R. (3d) 792, at para. 2, quoting
Peel (Regional Municipality) v. Great
    Atlantic & Pacific Co. of Canada Ltd.
(1990), 74 O.R. (2d) 164 (C.A.),
    at p. 167. In criminal appeals, the primary concern is fairness and the
    appearance of fairness:
R. v. K.A.R.
(1992), 76 C.C.C. (3d) 536
    (N.S.C.A.), at p. 540, citing
R. v. Finta
(1990), 1 O.R. (3d) 183
    (C.A.), at p. 186.

[28]

No party identified any case in which a
    complainant has been granted leave to intervene in an ORB appeal. However, K.N.
    cites three cases in support of her position:

·

In
R. v. McCullough
, the accuseds
    counsel was granted leave to intervene because the trial judge had ordered him
    to pay certain costs of the proceedings below;

·

In
R. v. K.A.R.
, the victim of a sexual
    assault was granted leave to intervene, because the appellant sought an order
    pursuant to s. 683 of the
Criminal Code
, R.S.C. 1985, c. C-46, for
    production of her former psychiatrists file: see also
R. v. J.L.
,
    1995 CarswellOnt 3536 (C.J.), affd [1997] O.J. No. 4953 (C.A.); and

·

In
R. v. Bernardo
(1995), 38 C.R. (4th)
    229 (Ont. C.J.), LeSage A.C.J.O.C. granted the parents of the victims leave to
    intervene to argue that the public should be excluded from the courtroom during
    the playing of videotaped evidence. He observed that the circumstances were
    strikingly unusual and that the parents had a unique and different
    perspective on the issue.

[29]

In my view, none of these cases bear any
    resemblance to the circumstances of this case. Both
McCullough
and
Bernardo
involved applications by non-complainants and dealt with issues distinct from
    those at play here. While
K.A.R.
involved an application by a
    complainant, the order at issue concerned her privacy interests, which would
    not have been adequately addressed without her participation. The decision to
    allow a complainant to make submissions regarding the production of her medical
    records accords with the production regime established several years later by
    the Supreme Court of Canada in
R. v. OConnor
, [1995] 4 S.C.R. 411,
    and the subsequent statutory scheme enacted by Parliament (ss. 278.1-278.9, the
Mills
regime:
R. v. Mills
, [1999] 3 S.C.R. 668). The
Charter
principles of privacy and equality motivating the protection of sexual violence
    complainants and their records are not engaged in this case.

[30]

Another decision involving an intervention
    application by a complainant is
R. v. OConnor
(1993), 82 C.C.C. (3d)
    495 (B.C.C.A.). In that case, four complainants who had been sexually assaulted
    by a priest while attending a residential school sought leave to intervene in a
    Crown appeal. The appeal was from a judicial stay of proceedings made during
    the course of the trial as a result of Crown disclosure delays that
    disadvantaged the accused. The complainants sought to make submissions regarding
    the proper law and procedure governing the disclosure of complainants confidential
    information in sexual assault cases. The court denied leave to intervene,
    observing that the complainants personal interest in the proceedings would
    make it impossible for them to address the issues before the court in a
    detached manner.

[31]

While the circumstances are somewhat distinct
    here  the complainants in
OConnor
had launched parallel civil
    proceedings against the accused  similar fairness concerns are engaged. Permitting
    K.N. to make submissions would prejudice Mr. Gajewski, as her arguments are
    targeted at restricting Mr. Gajewskis liberties beyond the restrictions
    already imposed by the Board. In my view, there is no basis on which to grant
    K.N. leave to intervene and it would be unfair to Mr. Gajewski to do so.

[32]

The
Criminal Code
provides a mechanism
    for the complainant to have a voice in the sentencing stage through a victim
    impact statement: s. 722. This applies to ORB proceedings as well: s. 672.5(14).
    K.N. filed a victim impact statement.

[33]

In addition, her concerns with respect to a
    boundary restriction were articulated by the Crown on three occasions, in 2016,
    2018, and 2019. They were rejected by a majority of the Board in 2018 and
    unanimously in 2016 and 2019. The Board, possessed of expertise in its field,
    articulated sound reasons as to why a moving restriction would be more
    efficacious than a geographic one.

[34]

I respectfully agree with the observations of
    the Court of Appeal for British Columbia in
OConnor
, that
    complainants do not have special status in law by reason of being the persons
    named in the indictment: at p. 503. An essential feature of the criminal law
    is its public nature. A crime is, in fact, not a wrong against the actual
    person harmed  but a wrong against the community as a whole: at p. 503,
    quoting Alan W. Mewett & Morris Manning,
Criminal Law
, 1st ed.
    (Toronto: Butterworths, 1978), at p. 14.

[35]

I accept K.N.s argument that she, not the
    community, is at risk. However, as a member of the community, K.N.s concern
    was addressed by the ORB pursuant to its mandate to determine whether Mr.
    Gajewski poses a significant threat to the safety of the public. Where there is
    a concern regarding whether or not the Board has carried out its mandate effectively,
    it is the Crowns responsibility to speak for the community.

VI.

Disposition

[36]

For these reasons, I would dismiss the motion
    for leave to intervene.

G.R.
    Strathy C.J.O.


COURT OF APPEAL FOR ONTARIO

CITATION: H.M.B. Holdings Limited v. Antigua and Barbuda,
    2020 ONCA 12

DATE: 20200109

DOCKET: C66765

Simmons, Pardu and Nordheimer JJ.A.

BETWEEN

H.M.B. Holdings Limited

Applicant (Appellant)

and

The Attorney General
    of Antigua and Barbuda

Respondent (Respondent)

Lincoln Caylor and Nina Butz, for the appellant

Steve Tenai and Sanj Sood, for the respondent

Heard: November 7, 2019

On appeal from the order of
    Justice Paul Perell of the Superior Court of Justice, dated March 4, 2019,
    reported at 2019 ONSC 1445.

Pardu J.A.:

A.

Overview

[1]

The underlying facts in this conflict of laws case are undisputed.
    Antigua and Barbuda (Antigua) expropriated property owned by H.M.B. Holdings
    Limited (HMB). The Judicial Committee of the Privy Council ordered Antigua to
    compensate HMB for the expropriation (Privy Council judgment).

[2]

HMB brought a common law action to enforce the Privy Council judgment in
    British Columbia. The British Columbia Supreme Court granted HMBs action
    (British Columbia judgment).

[3]

HMB then applied, pursuant to the
Reciprocal Enforcement of
    Judgments Act
, R.S.O. 1990, c. R.5 (
REJA
)
, to register the British Columbia judgment in Ontario. The
    Superior Court of Justice of Ontario dismissed HMBs application. HMB now
    appeals from this dismissal.

[4]

The application judge refused registration on several bases. It was
    common ground before him that section 3(b) of the
REJA
required  as a
    prerequisite to registration in Ontario  Antigua to have been carrying on
    business in British Columbia at the time of the lawsuit there. The application
    judge found as a fact that Antigua was not carrying on business in British
    Columbia at the relevant time.

[5]

The application judge also considered section 3(g) of the
REJA
,
    which bars registration under the
REJA
if a judgment debtor would have a good defence if an
    action were brought on the original judgment. The parties
    disputed whether original judgment referred to the British Columbia judgment
  or the Privy Council judgment.

[6]

The application judge found that it would circumvent the
REJA
s
    purposes to permit registration in Ontario of a ricochet judgment, which is a
    judgment of a reciprocating province that was itself the result of a common law
    action to enforce a judgment obtained in a non-reciprocating jurisdiction under
    the
REJA
. Accordingly, original judgment could not include ricochet
    judgments. In turn, the original judgment in this case was the Privy Council
    judgment. Since Antigua would have had a good defence under the
Limitations
    Act 2002
, S.O. 2002, c. 24, Sch. B,
had
    a common law action to enforce the Privy Council judgment been brought in
    Ontario, registration should not be permitted.

[7]

HMB argues that the application judge erred in failing to:

(1)

apply the legal criteria for
    carrying on business more liberally, to find Antigua was carrying on business
    in British Columbia at the relevant time; and

(2)

interpret original judgment to
    mean the British Columbia judgment, not the Privy Council judgment.

[8]

I would not give effect to these arguments and would dismiss the appeal.
    The application judge did not err in finding that Antigua was not carrying on
    business in British Columbia at the relevant time. Consequently, section 3(b)
    of the
REJA
bars HMB from registering the British Columbia judgment in
    Ontario under the
REJA
. It is thus unnecessary to consider the second
    issue regarding the meaning of original judgment.

B.

Background

[9]

This appeal requires interpreting and applying the
REJA
. The
    relevant statutory provisions are as follows:

Definitions

1.

(1)
In
    this Act,

judgment means a judgment or
    an order of a court in any civil proceedings whereby any sum of money is
    payable
, and includes an award in proceedings on an arbitration if the
    award has, in pursuance of the law in force in the province or territory where
    it was made, become enforceable in the same manner as a judgment given by a
    court therein; (jugement)

judgment creditor means the person by whom the
    judgment was obtained, and includes the executors, administrators, successors
    and assigns of that person; (créancier en vertu du jugement)

judgment debtor means the person against whom the
    judgment was given, and includes any person against whom the judgment is
    enforceable in the place where it was given; (débiteur en vertu du jugement)

original court, in relation to a judgment, means
    the court by which the judgment was given; (tribunal dorigine)

registering court, in relation to a judgment, means
    the court in which the judgment is registered under this Act. (tribunal
    denregistrement)

Registration of judgment

2.

(1)
Where
    a
judgment has been given in a court in a reciprocating
    state, the judgment creditor may apply to any court in Ontario
having
    jurisdiction over the subject-matter of the judgment, or, despite the
    subject-matter, to the Superior Court of Justice at any time within six years
    after the date of the judgment
to have the judgment
    registered in that court
, and on any such application the court may,
    subject to this Act, order the judgment to be registered.

Conditions of registration

3.
No
    judgment shall be ordered to be registered under this Act if it is shown to the
    registering court that,

(a) the original court acted without jurisdiction; or

(b)
the judgment debtor, being
    a person who was neither carrying on business nor ordinarily resident within
    the jurisdiction of the original court, did not voluntarily appear or otherwise
    submit during the proceedings to the jurisdiction of that court; or

(g)
the judgment debtor would have a good defence if an action were
    brought on the original judgment
.

[Emphasis added].

[10]

For
    the purposes of determining whether Antigua was carrying on business in British
    Columbia, the relevant activity is Antiguas Citizenship by Investment
    program (CIP).

[11]

The
    CIP aimed to encourage investments in real estate, businesses, and in Antiguas
    National Development Fund by offering citizenship to investors and their
    families in exchange for such investments. The CIP was administered by an
    Antiguan government agency, the Citizenship Investment Unit (CIU).

[12]

The
    Antiguan government engaged Authorized Representatives to facilitate
    introductions to potential investors. As mandated by legislation, the CIU
    appoints representatives and service providers to promote, advertise, and
    disseminate information about the CIP.

[13]

At
    the time of the British Columbia action, Antigua had four Authorized Representatives
    in that province. These were limited term appointments. These representatives
    were not agents of the Antiguan government. They carried on other businesses
    unrelated to the CIP.

[14]

Authorized
    Representatives have no authority to review or approve any application. They
    assist prospective investors by providing them with information about CIP and completing
    preliminary forms to send to Authorized Agents based in Antigua.

[15]

Authorized
    Agents assist applicants to obtain information for the application process,
    collect the required fees, and send the completed package to the CIU. In
    Antigua, the CIU decides to approve or deny the application. Authorized
    Representatives do not liaise with the Antiguan government or the CIU. If the
    application is ultimately approved, the Authorized Representative may be paid a
    commission, through the Authorized Agent.

[16]

The
    CIP program did not particularly target Canadian or British Columbia residents.
    Since the programs inception in October 2013, only nine CIP applications were
    made by persons born in Canada.

[17]

Antigua
    did not maintain an office in British Columbia. It did not have employees or
    agents there. It did not attend in British Columbia for any purpose related to
    the CIP. It did not contract with prospective investors there or approve
    applications there. It did not deal with prospective investors there, did not
    trade in goods there, or engage in regular advertising of services there.

C.

Analysis

[18]

Antigua
    was served with the originating documents in the British Columbia action but
    did not appear or otherwise submit during that proceeding to the British
    Columbia courts jurisdiction. Accordingly, under s. 3(b) of the
REJA
,
    Antigua had to be carrying on businesswithin the jurisdiction of the original
    court for registration to occur under the
REJA
. For the purposes of
    this issue, original court meant the Supreme Court of British Columbia.

[19]

The
    parties agreed that if Antigua did not carry on business in British Columbia,
    the British Columbia judgment could not be registered in Ontario.

(1)

Application judges decision

[20]

The
    application judge observed that whether a party is carrying on business in a
    province is a question of fact. Citing
Chevron Corp. v. Yaiguaje,
2015 SCC 42, [2015] 3 S.C.R. 69
, the
    application judge noted that for a party to be carrying on business within a
    province, he or she must have a meaningful presence in the province and that
    presence must be accompanied by a degree of business activity over a sustained
    period of time.

[21]

He
    also referred to the holding in
Club Resorts Ltd. v. Van Breda
, 2012
    SCC 17, [2012] 1 S.C.R. 572, at para. 87, that carrying on business requires
    some form of actual, not only virtual, presence in the jurisdiction, such as
    maintaining an office there or regularly visiting the territory of the
    particular jurisdiction. Active advertising in the jurisdiction and an
    internet presence would not suffice to establish that a corporation was
    carrying on business in a particular jurisdiction.

[22]

The
    application judge concluded that Antigua was not carrying on business in
    British Columbia:

[52] In my opinion, the Antiguan
    Government was not carrying on business in British Columbia. It had no physical
    presence in the province, and it did not carry on any sustained business
    activity in the province. The four Authorized Representatives in British
    Columbia were undoubtedly carrying on business in British Company [
sic
],
    but the representatives were not agents or Licensed Agents of the Antiguan
    Government, and they were carrying on their own businesses that were
    independent of the businesses of the Antiguan Government, even if one assumes
    that the Citizenship by Investment Program is a business as distinct from a
    government activity that has a commercial aspect to it.

[54] The Antiguan Governments
    Program is not particularly focused on any jurisdiction - other than Antigua
    and Barbuda - where it appears to have been quite successful in bring
    entrepreneurs to the country. The Program has no particular focus on British
    Columbia or on Canada for that matter. Since the inception of the Program,
    there have been 1,547 applications to the Antiguan Government from around the
    world of which only nine have been from persons born in Canada.

(2)

Arguments on appeal

[23]

HMB
    argues that the application judge ought to have interpreted the legal criterion
    more liberally, given the desirability of recognizing judgments from sister
    provinces. HMB relies on
Wilson v. Hull
, 1995 ABCA 374, 34 Alta. L.R.
    (3d) 237, submitting that carrying on business only requires a defendant to
    have some direct or indirect presence in the state asserting jurisdiction,
    accompanied by a degree of business activity which is sustained for a period of
    time.

[24]

HMB
    submits that considering the usual indicia outlined in
Wilson

    physical presence in the jurisdiction, employment of salespersons, agents or
    other representatives or employees, commercial relationships with other
    residents of the jurisdiction, and advertising business activity or selling of
    products (here, they suggest citizenship)  mandates a conclusion that Antigua
    was carrying on business in British Columbia.

[25]

In
    oral submissions, counsel for the appellant conceded that the Authorized
    Representatives in British Columbia were not agents or employees of Antigua. Counsel
    also acknowledged Antigua had no physical presence in British Columbia. Despite
    this, he argued that the presence of the Authorized Representatives in British
    Columbia, involved in the process of selling passports through the CIP, was
    sufficient to constitute carrying on business in that location.

[26]

Antigua
    asserts that the record supports the application judges factual findings, and
    that there were no compelling indicia that Antigua was carrying on business in
    British Columbia. They submit that the application judges decision was
    consistent with
Wilson
and other existing jurisprudence that assess
    the degree of connection required to constitute carrying on business in a
    place. Antigua relies on
Sgromo v. Scott
,
2018 ONCA 5, 78 B.L.R. (5th) 37, and
Yemec v.
    Atlantic Lottery Corp.
, 2012 ONSC 4207, 41 C.P.C. (7th) 362, to point out
    that even active advertising within a province would not be enough to establish
    that an entity was carrying on business in that province. Additionally,
    marketing products through an agency also would not mean that the party
    retaining the agency was therefore carrying on business in the province,
    particularly where the party did not maintain a physical presence in nor
    regularly visit the jurisdiction.

(3)

Conclusion

[27]

It
    is common ground that deference is owed to the factual finding that Antigua was
    not carrying on business in British Columbia. Absent a palpable and overriding
    error, there is no basis for appellate intervention.

[28]

The
    application judge did not err in summarizing or applying the legal test for
    what constitutes carrying on business. His analysis was consistent with
Wilson
,
    which was relied upon by the HMB and approved of in
Chevron.
In
Wilson
,
    a buyer made regular purchases of equipment in Idaho from a seller located in
    Idaho, and transported that equipment to Alberta over a period of 11 months. The
    majority in
Wilson
found this activity did not amount to the buyer
    carrying on business in Idaho.

[29]

I
    can identify no error in the application judges assessment of whether Antigua
    was carrying on business in British Columbia. He weighed a multitude of factual
    circumstances and concluded the test was not met. This factual finding is owed
    deference.

[30]

This
    is quite apart from the question of whether the activity in question
    government promotion of investment in Antigua in exchange for citizenship  can
    be said to amount to business at all.

[31]

This
    is sufficient to support dismissing the application for registration of the
    British Columbia judgment under the
REJA
and dismissing this appeal.

[32]

The
    trial judges interpretation of carrying on business does not deprive parties
    like HMB of a remedy, provided they bring the action within the applicable
    limitation period. HMB could have brought a common law action in Ontario upon
    the Privy Council order of May 27, 2014, provided it did so within the
    applicable two-year limitation period in Ontario. There would have been no
    jurisdictional hurdle to bringing such an action. As noted in
Chevron,
at para. 3:

In an action to recognize and
    enforce a foreign judgment where the foreign court validly assumed
    jurisdiction, there is no need to prove that a real and substantial connection
    exists between the enforcing forum and either the judgment debtor or the
    dispute. It makes little sense to compel such a connection when, owing to the
    nature of the action itself, it will frequently be lacking. Nor is it
    necessary, in order for the action to proceed, that the foreign debtor
    contemporaneously possess assets in the enforcing forum. Jurisdiction to
    recognize and enforce a foreign judgment within Ontario exists by virtue of the
    debtor being served on the basis of the outstanding debt resulting from the
    judgment.

[33]

The
    only prerequisite is that the foreign court had a real and substantial
    connection with the litigants or with the subject matter of the dispute,
    matters not in issue in this case:
Chevron
at para. 27. This relaxed
    threshold is justified in part because enforcement of a foreign judgment is
    generally limited to measures within the jurisdiction where the enforcement
    action is brought. An enforcing courts judgment generally has no coercive
    force outside that jurisdiction:
Chevron
, at para. 46. The substantive
    defences to an action to enforce a foreign judgment are limited, for example,
    fraud, denial of natural justice, or public policy:
Chevron
, at para.
    77.

[34]

The
REJA
provides a more convenient and expedited way to recognize and
    enforce judgments, but in these circumstances imposes a threshold requiring
    that the defendant have been carrying on business in the jurisdiction from
    which the judgment sought to be registered was obtained.

[35]

It
    is therefore unnecessary to consider whether the application judge was correct
    to conclude that registering a ricochet judgment would run counter to the
REJA
s

legislative objectives
.
I do not express agreement or
    disagreement with those conclusions but leave that question for another day,
    when it is necessary to dispose of an appeal.

D.

Disposition

[36]

On theses grounds, I would dismiss the appeal with costs to Antigua and
    Barbuda in the agreed sum of $17,500 partial indemnity, all inclusive.

G.
    Pardu J.A.

I
    agree Janet Simmons J.A.

Nordheimer J.A. (dissenting):

[37]

I
    have reviewed the reasons of my colleague. I do not agree with the conclusion
    that she reaches. In my view, the application judge erred in refusing to
    register the judgment under the
Reciprocal Enforcement of Judgments Act
,
    R.S.O. 1990, c. R.5 (
REJA
).

E.

Analysis

[38]

My
    colleague has set out the background facts along with the relevant legislative
    provisions so there is no need for me to repeat them.

(1)

Antigua and Barbuda Was Carrying on Business in British Columbia

[39]

The
    first issue is whether Antigua and Barbuda (Antigua) was carrying on business
    in British Columbia. I conclude that it was. The application judge made a
    palpable and overriding error in concluding otherwise. He did so, both on any
    common-sense view of the facts, and by applying a restrictive interpretation as
    to what constitutes carrying on business in the context of the principles
    underlying the reciprocal enforcement of foreign judgments.

[40]

My
    colleague says that the application judge did not err in summarizing or
    applying the legal test for what constitutes carrying on business: at para.
    28. I disagree. In interpreting and applying s. 3(b) of the
REJA
, the
    application judge erred in principle by failing to follow the clear direction
    of the Supreme Court of Canada enunciated in
Chevron Corp. v. Yaiguaje
,
    2015 SCC 42, [2015] 2 S.C.R. 69. Instead, he applied the principles from
Club
    Resorts Ltd. v. Van Breda
, 2012 SCC 17, [2012] 1 S.C.R. 572, which have no
    application in a case such as this where the judgment that the creditor seeks
    to enforce is itself a judgment issued for the enforcement of a foreign
    judgment. The decision in
Chevron
is clear that
Van Breda
does not apply to the recognition and enforcement of foreign judgments.
Van
    Breda
is a case about jurisdiction at first instance. As Gascon J. said,
    at para 41:

To accept Chevron's argument would
    be to extend
Van Breda
into an area in which it was not intended to
    apply, and in which it has no principled reason to meddle. In fact, and more
    compellingly, the principles that animate recognition and enforcement indicate
    that
Van Breda's
pronouncements should not apply to recognition and
    enforcement cases.

[41]

As
    Gascon J. pointed out in
Chevron
, courts must take a different
    approach to the question of jurisdiction when considering the enforcement of a
    foreign judgment as opposed to a claim of first instance based on events that
    occurred outside of Canada. As Gascon J. said at para. 27: Canadian courts,
    like many others, have adopted a generous and liberal approach to the
    recognition and enforcement of foreign judgments.

[42]

Consistent
    with this approach, in considering whether a party was carrying on business for
    the purpose of the
REJA
, and where the judgment to be registered is
    itself a judgment issued for the enforcement of a foreign judgment, that
    requirement should be interpreted in a fashion that establishes a very low bar.

[43]

In
    my view, the conduct of Antigua in British Columbia easily satisfies the
    requirement for carrying on business when a generous and liberal approach is
    taken to the determination of that factor. Antigua had hired companies to
    promote their Citizenship by Investment program (CIP). It is acknowledged
    that the purpose of the CIP was to generate monies for Antigua. Through the
    CIP, Antigua, in essence, sold citizenship in that country in exchange for the
    payment of significant sums by those desiring, for their own purposes, to
    obtain that citizenship. The evidence shows that Antigua received many millions
    of dollars through the CIP.

[44]

The
    application judge found that Antigua was not carrying on business in British
    Columbia because it did not have a physical presence in British Columbia and
    because it did not carry on any sustained business activity. The application
    judge erred in both of these respects. In order to carry on business for the
    purpose of the
REJA
, interpreted contextually in light of the facts of
    this case, one does not need a physical presence. Indeed, in this digital age,
    it is often unnecessary to have any physical presence in order to carry on a
    business.

[45]

The
    application judge found that Antigua did not have any sustained business
    activity in British Columbia That finding is a palpable and overriding error.
    The fact is that Antigua had promoted its CIP in British Columbia to citizens
    of that province for several years. There is no need for a specific length of
    time to have passed to determine whether someone is carrying on business. While
    admittedly a one-off transaction might not constitute carrying on business,
    neither is it necessary for transactions to be carried out for decades to
    constitute carrying on business in this context.

[46]

Further,
    the application judges reliance on the fact that the authorized
    representatives carried on their own businesses as justifying his conclusion
    that Antigua was not carrying on business through them, is entirely
    inconsistent with commercial reality. There are many businesses who act as
    agents for other companies, while maintaining their own business operations,
    and that does not change the fact that those companies carry on business
    through them.

[47]

Even
    if one accepts that the authorized representatives were not agents in the
    strict legal sense, as the appellant conceded, that does not change the fact
    that Antigua was carrying on business through them in British Columbia. Indeed,
    that would appear to be the sole reason why Antigua had authorized
    representatives in that province.

[48]

I
    note that the authorized representatives received a commission for each
    successful application that they directed to Antigua. I also note that the
    terms of the letters from Antigua appointing companies as authorized
    representatives use the following language to describe their role: [A]n
    approved Representative and Service Provider of the Citizenship by Investment
    Programme.

[49]

The
    fact remains that Antigua was promoting its CIP through these authorized
    representatives in British Columbia. It was promoting its product to the
    citizens of that province and encouraging citizens of that province to
    participate in it. In my view, that is sufficient to constitute carrying on business
    for the purposes of registering a judgment under the
REJA
that itself
    resulted from the enforcement of a foreign judgment in the reciprocating
    jurisdiction. I would add, on this point, that I would include within the
    ordinary meaning of the term carrying on business any government projects
    that have a commercial aspect. There is no reason to interpret that term in a
    fashion that would exempt governments from its application and thus render
    governments immune from the
REJA
.

[50]

I
    repeat that this analysis must be undertaken against the backdrop of what
    Gascon J. in
Chevron
described as an approach that favoured generous
    enforcement rules: at para. 42. The provisions of the
REJA
must be
    interpreted in a fashion that supports that approach. The application judges
    conclusion, as affirmed by my colleague, is not faithful to that approach.
    Indeed, the application judges conclusion permits Antigua to continue to avoid
    its financial obligations to the appellant, as determined by the Judicial
    Committee of the Privy Council (JCPC). On this point, I repeat the observation
    made by Gascon J. in
Chevron
, at para. 75:

Cross-border transactions and
    interactions continue to multiply. As they do, comity requires an increasing
    willingness on the part of courts to recognize the acts of other states.

(2)

The Original Judgment was Granted in British Columbia

[51]

As
    a result of my conclusion, I must address the second issue and that is the
    meaning of original judgment in s. 3(g) of the
REJA
. In my view, that
    term clearly refers to the judgment that was granted in British Columbia. To
    conclude otherwise would yield a result where the word original is given a
    different meaning in s. 3(g) than it clearly bears in the definition section of
    the legislation. In s. 1(1) original court is defined as the court by which
    the judgment was given. There can be no dispute that, in this case, judgment
    means the British Columbia judgment since it is that judgment that is sought to
    be registered. Therefore, the original court is the British Columbia court.

[52]

If
    the application judges interpretation of s. 3(g) is correct, the term
    original judgment would mean something different than the term original
    court. The application judge would have the former term refer to the JCPC
    judgment and the latter term refer to the British Columbia court. There is no
    rational basis for interpreting the two terms in that manner or for having the
    same word in the same statute mean two entirely different things. The
    legislator is presumed to express itself with consistency, such that the same
    word is presumed to have the same meaning throughout a statute:
R. v.
    Zeolkowski
, [1989] 1 S.C.R. 1378, at p. 1387.

[53]

Here,
    there is nothing that warrants overturning this presumption. The application
    judge erred by interpreting original judgment so as to distinguish between
    different types of judgments made by the reciprocating jurisdiction, a
    distinction that the legislator did not make. His interpretation undermines the
    purpose of the
REJA
, which is to facilitate the enforcement of
    judgments properly issued by reciprocating jurisdictions.

[54]

Since
    the original judgment, in this context, means the British Columbia judgment,
    Antigua did not have a good, or indeed any, defence to that action. It does not
    suggest that it did. That is not surprising given that the British Columbia
    judgment sought to enforce the obligation that fell on Antigua when the JCPC
    issued its judgment, having found Antiguas defence to the underlying claim
    brought against it to be wanting.

F.

Conclusion

[55]

I
    would allow the appeal and order that the British Columbia judgment be
    registered.

[56]

I
    would award the appellant its costs of the appeal in the agreed amount of
    $40,000 inclusive of disbursements and HST.

Released: January 9, 2020

GP

I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Hydro Hawkesbury v. ABB Inc., 2020
    ONCA 53

DATE: 20200128

DOCKET: C67238

Hoy A.C.J.O., Doherty J.A. and
    Marrocco A.C.J. (
ad hoc
)

BETWEEN

Hydro
    Hawkesbury

Plaintiff

and

ABB Inc.
and
Pioneer Transformers Ltd.

Defendants (
Appellant
/
Respondent
)

Tara L. Lemke, for the appellant

Jacqueline Horvat and Alexandria Chun, for the
    respondent

Heard and released orally: January 16, 2020

On appeal from the order of Justice Robert Pelletier of the Superior
    Court of Justice, dated June 26, 2019, with reasons reported at 2019 ONSC 3930.

REASONS
    FOR DECISION

[1]

The appellant appeals the motion judges stay of
    crossclaims between it and its co-defendant, the respondent ABB AB. In its
    crossclaims against ABB, the appellant seeks consequential damages arising as a
    result of a defective tap changer manufactured by ABB, supplied to the
    appellant, and included in a transformer the appellant sold to Hydro Hawkesbury.
    The transformer failed because of the defective tap changer and the motion
    judge granted Hydro Hawkesbury summary judgment against the appellant for
    breach of contract.

[2]

The appellants also appealed from that judgment,
    and we have provided separate reasons for dismissing that appeal.

[3]

After granting Hydro Hawkesburys motion for summary
    judgment against the appellant, the motion judge stayed the crossclaims because
    he found that the standard terms and conditions referred to as Orgalime
    applied to ABBs supply of the tap changer to the appellant. Those terms included
    clauses requiring that disputes between the appellant and ABB are to be resolved
    under the Rules of Arbitration of the International Chamber of Commerce and
    clauses governing substantive law, and  most significantly  excluding
    liability for consequential loss.

[4]

On appeal, the appellant argues that the motion
    judge erred in concluding that Orgalime applied. Relying on
Tilden Rent-a-Car
    Co. v. Clendenning
, 18 O.R. (2d) 601
,
    the appellant argues that ABB was required to specifically bring these clauses in
    Orgalime to its attention and failed to do so.

[5]

The motion judge considered
Tilden
and concluded
    that proper notice and tacit acceptance of the General Conditions were present
    when [the appellant] accepted the terms of the tap changers delivery by ABB:
    at para. 14. We are not persuaded that there is any basis to interfere with his
    conclusion.

[6]

We agree with the motion judge that this case is
    different from
Tilden
.

This is not a case where the signing
    party could not reasonably have been expected to read the contract before
    signing it. As the motion judge noted at paras. 8-10, the appellant was a
    fairly sophisticated corporate consumer and the Orgalime terms and
    conditions, which were readily available, were specifically referred to in two
    documents creating the contractual relationship between the appellant and ABB.
    The two documents were dated two weeks apart and the appellant confirmed the
    second document three days after receiving it. In the circumstances of this
    case, a fairly sophisticated corporate consumer doing business with a foreign
    supplier of electrical components in international markets would reasonably be
    expected to have reviewed the terms of both documents and would expect clauses
    of the type contained in Orgalime.

[7]

Given that Orgalime applies, arbitration was the
    appropriate dispute resolution mechanism, and the motion judge properly stayed
    the action. We note that because the clause in Orgalime excluding liability for
    consequential loss applies whether or not the dispute is resolved by arbitration,
    the appellant did not pursue its argument that ABB was precluded from invoking
    the arbitration clause because of its delay in doing so.

[8]

Accordingly, the appeal is dismissed.

[9]

ABB is entitled to its costs of the appeal,
    fixed in the amount of $5,000, inclusive of HST and disbursements.

Alexandra
    Hoy A.C.J.O.

Doherty
    J.A.

Marrocco
    A.C.J.S.C. (
ad hoc
)


COURT OF APPEAL FOR ONTARIO

CITATION: Jadhav v. Jadhav, 2020 ONCA 19

DATE: 20200113

DOCKET: M51005 (C67542)

Pardu, Brown and Huscroft JJ.A.

BETWEEN

Narendra
    Sahebrao Jadhav

Applicant
(Appellant in Appeal/Moving Party)

and

Shilpa Narendra
    Jadhav

Respondent
(Respondent in Appeal/Responding Party)

Narendra Sahebrao Jadhav, in person

Cheryl A. Hodgkin, for the respondent

Heard: January 7, 2020

REASONS FOR
    DECISION

[1]

Mr. Jadhav asks this panel to review a decision of a single judge of
    this court refusing a stay of an order setting a date for a settlement
    conference and setting terms for filing documents in the Superior Court of
    Justice and seeking an extension of time to perfect his appeal. He submits that
    the motion judge erred in considering that this court had no jurisdiction to
    hear his appeal, which should have been brought to the Divisional Court. He
    submits that a decision that this court had no jurisdiction should have been
    made by a panel of this court and not by a single judge.

[2]

We do not agree with the arguments advanced by Mr. Jadhav. The decisions
    whether to grant a stay of the procedural order from which Mr. Jadhav appeals
    to this court and whether to extend time to appeal are discretionary decisions.
    We see no error in the motion judges consideration of this courts lack of
    jurisdiction as a factor in refusing a stay and in refusing an extension of
    time to proceed with the appeal. There is no basis to interfere with the motion
    judges decision, and the motion for review of the decision of Fairburn J.A. is
    dismissed.

[3]

Costs to the respondent Ms. Jadhav are fixed at $5,000, payable within
    ten days.

G. Pardu J.A.

David Brown J.A.

Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Khan v. Krylov & Company, 2020 ONCA 13

DATE: 20200108

DOCKET: C66794

Simmons, Benotto and
    Harvison Young JJ.A.

BETWEEN

Zaka Ullah Khan

Plaintiff
(Appellant/Respondent by way of cross-appeal)

and

Krylov & Company
and Devry Smith Frank
    LLP

Defendants
(Respondents/
Appellant by way of cross-appeal
)

Zaka Ullah Khan,
    self-represented

Bronwyn M. Martin and Visnja Jovanovic, for the
    respondent/appellant by way of cross-appeal Krylov & Company

Louis P. Covens, for the respondent Devry Smith Frank
    LLP

Heard and released orally: December 13, 2019

On appeal
    from the order of Justice James Stribopoulos of the Superior Court of Justice,
    dated March 15, 2019, with reasons reported at 2019 ONSC 1666, 91 C.C.L.I. (5
th
)
    70 and from the costs order, dated May 1, 2019, with reasons reported at 2019
    ONSC 2714.

REASONS FOR DECISION

[1]

The motion judge dismissed the action pursuant to Rule 20, because he
    was satisfied that the action raised no genuine issue requiring a trial. In his
    submissions, Mr. Khan identifies a number of factual disputes and submits that a
    trial was required to resolve them. Those factual disputes include whether he
    actually signed the release, what occurred during his meeting at Krylov &
    Company and the length of this meeting. Mr. Khan submits that the motion judge
    should not have concluded that there was no genuine issue requiring a trial
    given these disputes.

[2]

We agree that while these factual disputes exist, they are not material
    to the resolution of the action, and therefore, the motion judge did not err in
    concluding that there was no genuine issue requiring a trial.

[3]

Mr. Khans claim as pleaded was entirely premised on his claim that his
    tort action had settled for an amount higher than $82,500, but that the
    respondents only forwarded the smaller sum to him and misappropriated the rest.
    The motion judge found that there was no evidence before him that could support
    the conclusion that the tort action settled for a greater amount, and that the money
    had been misappropriated by the respondents. Given this conclusion, the action
    could not succeed.

[4]

The motion judge found that there was substantial evidence before him
    that the total value of the settlement was $82,500 and that there was no evidence
    that could displace this evidence.

[5]

For these reasons, the appeal is dismissed. Leave to appeal the costs
    award is denied and leave to cross-appeal the costs order is also denied.

[6]

Costs of the appeal are awarded to the respondent, Devry Smith Frank LLP
    in the amount of $2,830 on a partial indemnity scale including taxes and
    disbursements. No costs of the appeal are awarded to the respondent, Krylov
    & Company and no costs of the cross-appeal are awarded to Mr. Khan.

Janet Simmons J.A.

M.L. Benotto J.A.

A. Harvison Young
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Lewis v. Lewis, 2020 ONCA 56

DATE: 20200129

DOCKET: C67329

Hoy A.C.J.O., Doherty J.A. and Marrocco A.C.J. (
ad
    hoc
)

BETWEEN

Sheldon Lewis, Marilyn
    Lewis, Donna Buckley and Marlene Lewis

Applicants (Appellants)

and

Donald Lewis
,
Douglas Lewis
, the
    Estate of Emerson Walker Lewis, and the Estate of Marie Theresa Lewis

Respondents (
Respondents
)

Patrick J. Kraemer, for the appellants

Carol Craig, for the respondents

Heard: January 17, 2020

On
    appeal from the order of Justice Hugh K. OConnell of the Superior Court of
    Justice, dated July 31, 2019, with reasons reported at 2019 ONSC 4595.

REASONS FOR
    DECISION

[1]

On April 16, 2013, Emerson and Marie Lewis appointed the respondents,
    two of their six adult children, as their attorneys for property. The
    appellants  the remaining four children  appeal the order of the application
    judge, dismissing their application under ss. 42(1) and (4) of the
Substitute
    Decisions Act, 1992
, S.O. 1992, c. 30, (the SDA) for leave to require
    the respondents to pass their accounts.  The court was advised that Emerson and
    Marie Lewis died about seven weeks apart, shortly after the application was
    heard.

[2]

The appellants had also unsuccessfully challenged Marie Lewiss
    appointment of the respondents as her attorneys for personal care and property.
    Their further appeal was also dismissed.

[3]

We dismissed this appeal, for reasons to follow. These are our reasons.

[4]

Section 42(1) of the SDA provides that [t]he court may, on application,
    order that all or a specified part of the accounts of an attorney or guardian
    of property be passed. In turn, s. 42(4) partially sets out who may make an
    application under s. 42(1). The list includes specified persons and any other
    person, with leave of the court. The jurisprudence suggests that any other
    person will not often be granted leave to bring an application under s. 41(1):
    see e.g.,
Groh v. Steele
, 2017 ONSC 3625, 29 E.T.R. (4th) 121, at
    para. 53

[5]

The parties agree that the test to be applied in determining whether a
    person should be granted leave of the court under s. 42(4) to make an
    application under s. 42(1) is that set out in
Ali v. Fruci
(2006), 22
    E.T.R. (3d) 187 (Ont. S.C.), at para. 3: the court must be convinced that (1)
    the person or persons seeking leave have a genuine interest in the grantors
    welfare; and, (2) a court hearing the application under s. 42(1) may order the
    attorney or guardian to pass his or her accounts.

[6]

Even where a person has standing to apply under s. 42(4), it remains in
    the discretion of the court to order a passing of accounts under s. 42(1):
Dzelme
    v. Dzelme
, 2018 ONCA 1018, 46 E.T.R. (4th) 43, at para. 7; see also
McAllister
    Estate v. Hudgin
(2008), 42 E.T.R. (3d) 313 (Ont. S.C.), at paras. 9, 13. In
Dzelme
, at para. 7, this court stated that factors a court considers
    in exercising its discretion under s. 42(1) include the extent of the
    attorneys involvement in the grantors financial affairs and whether the
    applicant has raised a significant concern in respect of the management of the
    grantors affairs to warrant an accounting.

[7]

On appeal, the first prong of the test in
Ali v. Fruci
is not
    at issue: the respondents concede that the appellants had a genuine interest in
    their parents welfare. The question is whether the appellants have established
    any basis for this court to interfere with the application judges conclusion
    that the second prong of the test was not met. That requires consideration of
    the applications judges reasons in light of
Dzelme
.

[8]

The application judge found that the record falls far short and lacks
    evidentiary stamina to suggest that there is any direct allegation of
    misfeasance or wrongdoing. Considering what the attorneys have done and are
    willing to do, he was not persuaded that he should exercise his discretion to
    grant leave to the appellants and order an accounting. He concluded that there
    was no reason to believe that a court hearing the matter may order an
    accounting by the attorneys.

[9]

The appellants argue that the application judge erred in finding that
    there was a lack of evidence relating to misfeasance or wrongdoing, erred in
    principle in the exercise of his discretion by focusing on whether there is a
    concern about misfeasance or wrongdoing, and improperly considered that Marie Lewis
    had capacity when she appointed the respondents as her attorney for property as
    a factor in his analysis.

[10]

We are not persuaded that there is a basis for this court to interfere
    with the application judges order dismissing the appellants application under
    s. 42(4).

[11]

Some brief background about the extent of the respondents involvement
    in their parents financial affairs and what the attorneys have done is
    helpful.

[12]

The uncontested evidence was that Emerson Lewis remained capable of managing
    his and his wifes intertwined affairs. He continued to receive all bank
    statements until he and his wife moved into a long-term care facility in
    October 2016. The respondents helped their father manage his and their mothers
    finances, such as paying his bills for him, but kept him apprised of all
    actions taken on their behalf. Before the appellants commenced their
    application, the respondents responded to their request to provide copies of
    documentation and continued to provide documentation in the course of the
    application. In his reasons, the application judge repeated  and, in our view,
    reasonably accepted  the respondents counsels characterization of the
    respondents as acting either at their fathers request, or with his knowledge
    and consent.

[13]

Moreover, Emerson Lewis, who was represented by counsel and participated
    fully in the application, gave evidence that he had no concerns with the
    respondents involvement in the management of his and his wifes affairs and
    wanted the litigation to come to an end.

[14]

We agree with the application judges finding that the record falls far
    short and lacks evidentiary stamina to suggest that there is any direct
    allegation of misfeasance or wrongdoing.

[15]

We agree with the appellants that an attorney can be ordered to pass
    accounts, and accordingly leave can be granted under s. 42(4), in the absence
    of significant concerns about misfeasance or wrongdoing.
Dzelme
frames
    this part of the inquiry more broadly: whether the applicant has raised a
    significant concern in respect of the management of the grantors affairs to
    warrant an accounting: at para. 7. Other matters, such as a significant erosion
    of the grantors financial position, could raise a significant concern in
    respect of the management of the grantors affairs: see e.g.,
McAllister
    Estate
,

at paras. 15-16.

[16]

However, the application judges reasons must be considered in the
    context of the record and the appellants submissions. Emerson and Marie
    Lewiss investment portfolios increased between the time that the respondents
    were appointed their attorneys for property and the time the appellants brought
    this application. The appellants made veiled allegations of misfeasance or
    wrongdoing.  The application judges focus on the lack of evidence of
    misfeasance or wrongdoing was responsive to their allegations. We are not
    persuaded that the application judge imposed a narrower test requiring proof of
    misfeasance or wrongdoing and thereby erred in principle in the exercise of his
    discretion.

[17]

Nor, in our view, did the application judge consider that the fact that
    Marie Lewis had capacity when she appointed the respondents as her attorneys for
    property was a reason to deny the appellants leave under s. 42(4). To the
    contrary, he specifically stated that whether she had capacity was not germane
    to the application.

[18]

Accordingly, the appeal was dismissed, and the appellants were ordered
    to pay the respondents their costs of the appeal, fixed in the amount of
    $13,500, inclusive of costs and disbursements.

Alexandra Hoy
    A.C.J.O.

Doherty J.A.

Marrocco A.C.J.S.C. (
ad
    hoc
)


COURT OF APPEAL FOR ONTARIO

CITATION: McKay v. Vautour, 2020 ONCA 16

DATE: 20200110

DOCKET: C66724

Roberts, Paciocco and Harvison Young JJ.A.

BETWEEN

Susan Opal McKay

Plaintiff (Appellant)

and

Joel Paul Vautour

Defendant (Respondent)

J. Sebastian Winny, for the appellant

W. H. Peter Madorin, Q.C., for the respondent

Heard: January 6, 2020

On appeal from the judgment of Justice James W. Sloan of
    the Superior Court of Justice, dated February 26, 2019, with reasons reported
    at 2019 ONSC 1312.

REASONS FOR DECISION

A.

Overview

[1]

The appellant appeals from the dismissal
    of her claim for adverse possession. She claims possessory title over an
    approximately eight-foot wide strip of land running between her property and
    that of her next-door neighbour, the respondent.

[2]

For the following reasons, we dismiss the
    appeal.

B.

Background

[3]

In 2005, the appellant purchased her
    property, shown as Lot 11 in the 1980 Reference Plan attached as Exhibit 4 to her
    trial affidavit. In 2011, the respondent purchased Lots 6, 7, 8, 9 and 10, which
    had been owned by the same person, Roy Stumpf, for several decades. Lots 10 and
    11 are adjacent to each other, Lot 10 being west of Lot 11.

[4]

The present dispute arose in 2012 when the
    respondent removed part of what has been referred to as a paddock or horse fence
    that was situated about 8 feet to the west of the actual boundary line between
    Lots 10 and 11, as shown in the 1980 survey produced at trial. The respondent
    replaced it with a fence located on the surveyed boundary line. It is agreed
    that the surveyed boundary line between the properties is accurately set out in
    the 1980 survey. There is no evidence either party saw the 1980 survey before
    purchasing their respective properties.

[5]

The appellant claims that the existence and
    location of the paddock fence establishes the true boundary line between the
    properties
. There is no dispute that the paddock fence has been in place
    for several decades.

[6]

The parties properties were transferred
    into the land titles system on June 16, 2003. Section 51 of the
Land
    Titles Act
, R.S.O. 1990, c. L.5, prevents
    the creation of any new possessory titles through adverse possession once land
    has been placed under the land titles system, but preserves any rights to
    adverse possession acquired prior to the placement of the land under the land titles
    system:
Cantera v. Eller

(2007), 56 R.P.R. (4th) 39 (Ont. S.C.), at para. 40,
    affd 2008 ONCA 876, 74 R.P.R. (4th) 162.

[7]

As a result, to succeed in her claim for
    adverse possession, the appellant had the burden to establish that the use of the
    disputed strip by her predecessors in title was open, notorious, constant,
    continuous, peaceful and exclusive of the right of the true owner, namely, the
    respondents predecessors in title, for any ten-year period prior to June 16,
    2003, and that this use met the following well-established criteria:

i.

Actual possession for the statutory period by the appellants predecessors
    in title through whom she claims;

ii.

Such possession was with the intention of excluding from possession the
    respondents predecessor in title;

iii.

Discontinuance of possession for the statutory period by the respondents
    predecessor in title.

See:
Pepper v. Brooker
, 2017 ONCA 532, 139 O.R.
    (3d) 67, at para. 32;
Cantera
, at paras. 38, 39.

[8]

The trial judge concluded that the
    appellant failed to prove her claim for adverse possession. There was no evidence
    from her predecessors in title to establish the requisite use during the statutory
    period. Evidence was given by Shannon Deckers, the daughter of the respondents
    predecessor in title, Roy Stumpf, now deceased, but it was insufficient to
    establish such use. Moreover, evidence gleaned from the survey, and given by
    Ms. Deckers and the appellant, supported the existence of a wooden fence on the
    upper portion of the disputed strip on the actual, titled property line between
    the properties. The trial judge concluded that this trumped any inference
    that the paddock fence on the lower portion of the disputed strip established
    the true boundary between the parties properties.

C.

Analysis

[9]

The appellant submits that the trial
    judge made the following reversible errors:

i.

The trial judge incorrectly made an adverse inference against possession
    by the appellant because of the absence of evidence from her predecessors in
    title.

ii.

Inconsistent with r. 76 of the
Rules of Civil Procedure
, R.R.O.
    1990, Reg. 194, the trial judge failed to consider the affidavit evidence filed
    at the trial conducted under the Simplified Rules.

iii.

The trial judge erroneously excluded as hearsay evidence, the appellants
    testimony about the state of mind or belief of Mr. Stumpf, the respondents predecessor
    in title, concerning the location of the property boundary;

iv.

The trial judge incorrectly applied the law of adverse possession.

[10]

We do not give effect to these
    submissions.

[11]

First, we do not agree that the trial
    judge erred by making an adverse inference against the appellant because of the
    absence of evidence from her predecessors in title. The trial judge made no
    such inference. Rather, he determined that the appellant had not met her onus
    of establishing adverse possession because of the absence of cogent evidence supporting
    her claim.

[12]

Second, we see no basis for concluding
    that the trial judge failed to consider the affidavit evidence that was filed. He
    was obliged to consider the whole of the evidence. His reasons demonstrate that
    he considered the points raised in the affidavits in conjunction with the
    cross-examination, as he was required to do, and that he specifically
    referenced exhibits to those affidavits.

[13]

Third, even if the trial judge had erred
    in rejecting as hearsay evidence the appellants testimony concerning Mr. Stumpfs
    state of mind about the boundary, we do not see this error as having any
    material outcome on the trial. The appellants evidence was that Mr. Stumpf had
    never raised with her any issue about the location of the paddock fence, nor
    her asphalt driveway that encroached on his property by about six inches. This
    evidence was equivocal regarding Mr. Stumpfs state of mind and could equally
    be construed as a manifestation of neighbourly accommodation.

[14]

Finally, we see no error in the trial
    judges application of the doctrine of adverse possession.

[15]

We disagree with the appellants
    submission that the trial judge was required to conclude that the paddock fence
    established the correct boundary and was intended to exclude the true owner. While
    fences can provide powerful evidence giving rise to such an inference, such a
    presumption is not mandatory:
Sammut v. Doheny
, 2019 ONCA 693, at para. 3.

[16]

In this case, the evidence concerning the
    purpose and treatment of the paddock fence was at best ambiguous. While Ms.
    Deckers testified that the paddock fence had been in place since her childhood
    and that her father repaired the paddock fence, she did not know who first constructed
    it or why it was built. She indicated that it served as an enclosure for the animals
    that roamed freely in the paddock and that it prevented them from going onto
    Lot 11. There was no clear or direct evidence that the parties predecessors in
    title treated the paddock fence as the boundary line. The appellant did not give
    evidence that Mr. Stumpf agreed that the paddock fence constituted the boundary
    line. Ms. Deckers confirmed in cross-examination that she had never discussed
    property lines with her father. Moreover, the southerly continuation of the paddock
    fence into Lot 7, as described by Ms. Deckers and as shown on the 1980 Reference
    Plan, supports the characterization of the paddock fence as an enclosure of a
    paddock within the entirety of the respondents five lot boundaries, rather
    than simply as a boundary line between the parties respective properties, Lots
    10 and 11.

[17]

Moreover, the evidence supported the
    existence of two fences  the paddock fence and another wooden fence located at
    the upper portion of the actual boundary line between Lots 10 and 11 (noted in
    handwriting on the 1980 survey as wood fence built by neighbour). The appellant
    confirmed the existence of a pressure-treated slat five- or six-foot high wooden
    fence that has been in place since prior to her purchase. Ms. Deckers had no
    recollection of the wooden fence described by the appellant but recalled that
    there was a fence that ran along the same upper stretch of the actual boundary
    line between Lots 10 and 11. As a result, it was open to the trial judge to
    conclude that the wooden fence displaced any inference that the paddock fence
    constituted and was treated as the boundary line between Lots 10 and 11.

[18]

Further, the trial judge was entitled to
    conclude that the absence of evidence from the appellants predecessors in
    title or any other evidence that would prove the requisite use of adverse
    possession for the statutory period was fatal to the appellants claim. Neither
    party had owned their properties prior to their conversion under the land titles
    system nor did either party have any personal knowledge of the use of the strip
    by their respective predecessors in title. It was also open to the trial judge
    to conclude that Ms. Deckers evidence was insufficient to establish the appellants
    claim for adverse possession. She was unable to adequately attest to the
    regular use that the appellants predecessors in title made of the disputed
    strip, their intentions with respect to the strip, or to her fathers view of such
    use or where the boundary line was located.

[19]

Notably, there was no evidence that the
    respondents predecessors in title were effectively excluded from the disputed
    strip for any ten-year period. There was no evidence that the appellant or any
    of her predecessors in title took any such exclusory steps. Rather, as Ms.
    Deckers confirmed, in order to repair the [paddock] fence [her father] would
    have to work on either side of the fence.
It is well established that
    the true owner of the disputed property need not demonstrate the same continuous
    use that the adverse claimant must show. The true owner is in constructive
    possession of the entire property even when in actual possession of only a part
    of it. As such, [f]airly trivial acts of dominion, such as the paddock fence repairs
    carried out by Mr. Stumpf as described by Ms. Deckers, may demonstrate that the
    true owner has not been excluded:
Barbour v. Bailey
,
2016 ONCA
    98, 66 R.P.R. (5th) 173, at para. 45;
Fletcher v. Storoschuk et al.
(1981), 35 O.R. (2d) 722 (C.A.), at p. 725.

[20]

Finally, we do not accept that the trial
    judges misstatement of the relevant statutory period as being from 1993 to
    2003 was material to the outcome because there was no cogent evidence to establish
    any of the requisite elements of adverse possession for any ten-year period prior
    to 2003.

D.

Conclusion

[21]

For these reasons, we dismiss the appeal.

[22]

The respondent is entitled to his partial
    indemnity costs of the appeal in the agreed upon amount of $11,000, inclusive
    of disbursements and applicable taxes.

L.B. Roberts J.A.

David M. Paciocco J.A.

A. Harvison Young J.A.