CITATION: Cabell v. The
          Personal Insurance Company, 2011 ONCA 105

DATE: 20110208

DOCKET: C52026

COURT OF APPEAL FOR ONTARIO

Rosenberg, MacPherson and LaForme JJ.A.

BETWEEN

Barbara Janet Cabell and Leslie John Gerald Cabell

Applicants (Appellants)

and

The Personal Insurance Company

Respondent (Respondent)

Hillel David, for the applicants (appellants)

Loris Carlesi, for the respondent (respondent)

Heard: November 5, 2010

On appeal from the judgment of
          Justice Michael A. Penny of the Superior Court of Justice, dated March 30,
          2010.

ROSENBERG J.A.:

[1]

The appellants appeal from the judgment of Penny J.
    dismissing their application for a declaration that they have coverage under an
    insurance policy for a loss relating to their outdoor in-ground swimming pool.  The issue is whether one of the common
    exclusions in the policy applies to an endorsement that the appellants
    purchased for loss or damage to their pool.  The application judge held that the exclusion applied, and therefore,
    the appellants loss was not covered. The appellants submit that the policy,
    including the endorsement, is ambiguous, and in accordance with well-known
    principles of interpretation, the policy should be interpreted in favour of the
    insured.  Alternatively, the appellants
    submit that the interpretation urged by the respondent would virtually nullify
    coverage or render coverage illusory and therefore the exclusion cannot be
    enforced against the appellants.

[2]

I agree with that latter submission.  Accordingly, I would allow the appeal and
    grant a declaration that the appellants do have coverage for the loss relating
    to their pool.

THE FACTS

[3]

There is no dispute concerning the underlying facts
    that gave rise to the loss suffered by the appellants.  The appellants outdoor in-ground swimming
    pool was damaged as a result of hydrostatic uplift pressure.  The increase of this pressure was due to the
    build up of groundwater, which caused the pool to lift out of the ground.  This displacement of the pool, among other
    things, caused the pool to crack resulting in significant damage.

THE POLICY

[4]

The appellants had purchased property insurance from
    the respondent.  Part 1 of the policy is
    headed Coverages and includes:

Permanently installed outdoor equipment on the
    premises, including outdoor antennae, fences, retaining walls and driveways.

[5]

Part 3 of the policy is headed Common Exclusions and
    provides as follows:

We do not insure:

(11) settling, expansion, contraction, moving,
    bulging, buckling or cracking of any insured property,
except
resulting
    damage to building glass.

(18)  loss or
    damage:

-           to outdoor radio, T.V. and
    communications antennae (including satellite receivers) and their attachments
    caused by windstorm, hail or collapse;

-          to outdoor swimming pools, hot tubs,
    spas, saunas and their equipment, their specific fittings and decks or patios
    attached to the swimming pools, hot tubs, spas or saunas but detached from the
    building;

-

caused by vermin,
    insects, rodents, raccoons or birds
except
loss or damage to building
    glass.

[6]

The appellants, however, purchased Endorsement 33b,
    which amends the policy and provides as follows:

Outdoor
    Inground Swimming Pool, Hot Tub, Spa and Sauna Coverage (Endorsement 33b)

Property
    Coverages

Perils
    Insured

We insure your outdoor inground swimming pool, hot
    tub, spa and sauna, their equipment and specific fittings and decks or patios
    attached to the swimming pool, hot tub, spa or sauna but detached from the
    building, against all risks of direct physical loss or damage, including damage
    caused by freezing or the weight of ice, snow or wet snow. We will also pay for
    the cost incurred to repair or replace the damaged property.

All other
    terms conditions and exclusions of this policy remain unchanged, including the
    exclusions regarding
:

-
loss
    or damage:

- occurring before during or after flood waters
    reach the premises. "Flood" includes waves, tides, tidal wave:, and
    the rising or overflow of any stream of water or body of water, whether natural
    or manmade;

- caused by impact by water-borne objects.

- loss or damage caused by wear and tear,
    deterioration, defect or mechanical, electrical or electronic breakdown or
    disturbance, rust or corrosion, dampness of atmosphere, extremes of
    temperature, wet or dry rot, fungi or spores,
but
resulting damage to
    other property caused by a peril not otherwise excluded is insured.

- the cost of making good faulty material or
    workmanship.

- loss or damage caused by vermin, insects,
    rodents, raccoons or birds.

[7]

To understand the interaction between the Common
    Exclusions in the policy and Endorsements, it may be helpful to consider
    another endorsement. For that purpose, I am setting out Endorsement 22b, which
    provides as follows:

Fire,
    Explosion and Smoke Damage Resulting from an Earthquake (Endorsement 22b)

Property
    Coverages

Perils
    Insured

You are insured against direct physical loss or
    damage to the property caused by fire, explosion or smoke which results from an
    earthquake shock, subject to the exclusions and conditions of your policy.

Loss or
    Damage not Insured

The following exclusions are additional to those
    contained in the Property Coverages section of your policy.

We do not insure loss or damage caused:

- directly or indirectly by floods, surface waters,
    ice, waterborne objects, waves or tides, whether or not attributable to an
    earthquake shock;

- by your failure to use all reasonable means to
    save and preserve the property;

- by earthquake shocks occurring before this
    endorsement is effective or after its expiration.

All other
    terms and conditions of the policy remain unchanged.

REASONS OF THE APPLICATION JUDGE

[8]

The application judge held that Endorsement 33b is not
    an independent part of the policy.  Accordingly, the Common Exclusions in the policy apply to Endorsement
    33b, except to the extent those exclusions are amended by the Endorsement.  In particular, Common Exclusion 11 applied
    and excluded coverage for the damage to the swimming pool since that damage
    fell within the words settling, expansion, contraction, moving, bulging,
    buckling or cracking of any insured property.  The application judge rejected the submission that only the exclusions
    expressly referred to in Endorsement 33b applied.

[9]

The application judge also rejected the argument that
    the scope of Common Exclusion 11 as applied to Endorsement 33b was so broad as
    to nullify coverage under that endorsement to permit the appellants to rely
    upon the principle in
Weston Ornamental
    Ironworks Ltd. v. Continental Insurance Company
, [1981] I.L.R. 477.  The application judge held that there was no
    evidence as to the universe of possible damage to which an outdoor pool might
    be exposed or how often an exclusion for settling, expansion, contraction,
    moving, bulging or cracking might be engaged in the context of outdoor pool
    claims.  On this record he was therefore
    unable to conclude whether Common Exclusion 11 virtually nullifies the coverage
    under Endorsement 33b so as to engage the principle in
Weston Ornamental
.

[10]

The application judge looked at the nullification of
    coverage argument as involving a question of reasonable expectations, which
    required objective evidence.  The type of
    evidence that would be helpful could include objective evidence of surrounding
    circumstances that might inform the expectations of reasonable outdoor pool
    owners regarding the risks of outdoor pool ownership and where hydrostatic lift
    and, more generally, settling, expansion, contraction, moving, bulging or
    cracking, fit into the hierarch of those risks.  Only if there was such evidence could a court
    assess whether Common Exclusion 11 was inconsistent with the main purpose of
    the insurance coverage so that enforcement of that exclusion would virtually
    nullify coverage.

ANALYSIS

Principles of Interpretation

[11]

The general principles of interpretation that apply to
    insurance policies are well-established.  A clause in the policy providing coverage will be broadly interpreted in
    favour of the insured.  An exclusion
    clause limiting coverage will be strictly interpreted.  Since insurance contracts are contracts of
    adhesion, any ambiguity in the policy will be construed against the insurer,
    applying the
contra proferentem
doctrine:
Reid Crowther & Partners Ltd. v. Simcoe & Erie General Insurance
    Co.,
[1993] 1 S.C.R. 252 at 268-69;
Consolidated
    Bathurst Export Ltd. v. Mutual Boiler and Machinery Insurance Co.,
[1980] 1
    S.C.R. 888.  However, these principles of
    interpretation cannot create ambiguities; if the exclusion clause is clear, it
    is to be applied according to its terms, subject to the nullification of
    coverage doctrine discussed below.

[12]

As to interpretation of endorsements, such as
    Endorsement 33b, generally speaking the endorsement does not operate
    independently of the policy.  As Lang J.A.
    put it in
Pilot Insurance Company v.
    Sutherland
(2007), 86 O.R. (3d) 789 (C.A.) at para. 21:

An endorsement changes or varies or amends the
    underlying policy. While it may be comprehensive on the subject of the
    particular coverage provided in the endorsement, it is built on the foundation
    of the policy and does not have an independent existence.

[13]

However, if limitation of apparent coverage in an
    endorsement is ambiguous, the limitation should be set out in the endorsement
    itself.  As Cory J.A. said in
Wigle v. Allstate Insurance Co. of Canada
(1984), 49 O.R. (2d) 101 (C.A.) at p. 120  in relation to underinsured motorist coverage:

Limitations on the apparent coverage in the
    endorsement that are ambiguous in the sense that they are not clearly apparent,
    should be set out in the endorsement itself.  If it was the intention of the insurer that the endorsement was not to
    cover an unidentified vehicle, it would have been a simple matter to say so
    in the explanatory note.

Nullification of Coverage

[14]

This case involves the doctrine of nullification of
    coverage.  In Canada, this doctrine appears
    to originate in the reasons of Estey J. speaking only for himself in
Indemnity Insurance Co. of North America v.
    Excel Cleaning Service
, [1954] 1 S.C.R. 169 at pp. 177  80:

Such a construction would largely, if not
    completely, nullify the purpose for which the insurance was sold  a
    circumstance to be avoided, so far as the language used will permit.
Cornish v. The Accident Insurance Co.
[(1889) 23 Q.B.D. 453.], where at p. 456 Lindley L.J. stated:

The object of the
    contract is to insure against accidental death and injuries, and the contract
    must not be construed so as to defeat that object, nor so as to render it
    practically illusory.

When regard is had to the possible meanings of the
    words "care," "custody" and "control" as they are
    here used as part of general provisions prepared without reference to the
    particular coverage purchased by the respondent, together with what is perhaps
    the more important consideration that, if construed as the appellant submits,
    these words would largely, if not entirely, nullify the usefulness of the
    insurance purchased, it is difficult to determine the precise meaning that
    ought to be attributed to these words.

It is, in such a
    case, a general rule to construe that language used in a manner favourable to
    the insured. The basis for such being that the insurer, by such clauses, seeks
    to impose exceptions and limitations to the coverage he has already described
    and, therefore, should use language that clearly expresses the extent and scope
    of these exceptions and limitations and, in so far as he fails to do so, the
    language of the coverage should obtain. Lord Justice Lindley stated:

In a case on the
    line, in a case of real doubt, the policy ought to be construed most strongly
    against the insurers; they frame the policy and insert the exceptions.
Cornish v. The Accident Insurance Co., supra
,
    at p. 456.

[15]

These passages appear to indicate that the nullification
    of coverage is simply a particular application of the broader rule of
    interpretation that in case of an ambiguity in an exclusion clause, the
    ambiguity is to be construed against the insurer.  The subsequent decision of the Supreme Court
    of Canada in
Consolidated Bathurst
also
    created some ambiguity as to how the doctrine applied.  In a passage that has been repeatedly applied
    in interpreting insurance contracts, Estey J., speaking for the majority of the
    court, held as follows at pp. 901 - 902 :

Even apart from the doctrine of
contra proferentem
as it may be applied
    in the construction of contracts, the normal rules of construction lead a court
    to search for an interpretation which, from the whole of the contract, would
    appear to promote or advance the true intent of the parties at the time of
    entry into the contract.
Consequently,
    literal meaning should not be applied where to do so would bring about an
    unrealistic result or a result which would not be contemplated in the
    commercial atmosphere in which the insurance was contracted. Where words may
    bear two constructions, the more reasonable one, that which produces a fair
    result, must certainly be taken as the interpretation which would promote the
    intention of the parties.
Similarly, an interpretation which defeats the
    intentions of the parties and their objective in entering into the commercial
    transaction in the first place should be discarded in favour of an
    interpretation of the policy which promotes a sensible commercial result. It is
    trite to
observe that an interpretation
    of an ambiguous contractual provision which would render the endeavour on the
    part of the insured to obtain insurance protection nugatory, should be avoided.
Said another way, the courts should be loath to support a construction
    which would either enable the insurer to pocket the premium without risk or the
    insured to achieve a recovery which could neither be sensibly sought nor
    anticipated at the time of the contract.  [Emphasis added.]

[16]

To a similar effect is
Amos v. Insurance Corp. of British Columbia
, [1995] 3 S.C.R. 405
    per Major J. speaking for the court at paras. 16 - 17 concerning a statutory
    no-fault benefits scheme:

Traditionally, the provisions providing coverage in
    private policies of insurance have been interpreted broadly in favour of the
    insured, and exclusions interpreted strictly and narrowly against the insurer
    (Brown and Menezes, at p. 131). In
Indemnity
    Insurance Co. v. Excel Cleaning Service
,
[1954] S.C.R.
    169
, it was held that
the
    construction given to a policy

of

insurance must not nullify the purpose
    for which the insurance was sold.

In the same way, while s. 79(1) must not be
    stretched beyond its plain and ordinary meaning, it ought not to be given a
    technical construction that defeats the object and insuring intent of the
    legislation providing coverage.  [Emphasis added.]

[17]

These passages suggest a different way of looking at
    the nullification of coverage doctrine; namely, that it is an independent
    doctrine that applies even in the absence of an ambiguity.  This court has adopted this interpretation of
    the doctrine in a number of cases including
Weston
    Ornamental
and more recently in
Zurich Insurance Co. v. 686234 Ontario Ltd.
(2002), 62 O.R. (3d) 447 (C.A.) at para. 28
    (leave to appeal to S.C.C. refused, [2003] S.C.C.A. No. 33):

From
Weston
    Ornamental Iron Works
it is clear that this court has concluded that
even though an exclusion clause may be clear
    and unambiguous, it will not be applied where
: (1) it is inconsistent with
    the main purpose of the insurance coverage and where
the result would be to virtually nullify

the coverage
provided by the policy; and (2) where to apply it
    would be contrary to the reasonable expectations of the ordinary person as to
    the coverage purchased.  [Emphasis
    added.]

[18]

I will return to the application of the nullification
    of coverage doctrine after interpreting the policy and the endorsement.

Interpreting the Policy and the Endorsement

[19]

Whether or not loss as a result of damage to the
    appellants outdoor in-ground pool falls within the Coverage part of the
    policy, such a loss is clearly excluded by Common Exclusion 18, the exclusion
    for, among other things, outdoor swimming pools.  The only reasonable interpretation of
    Endorsement 33b is that it at least amends the policy so that the part of Common
    Exclusion 18 referring to outdoor swimming pools does not apply.  The appellants submit that the Endorsement is
    ambiguous as to whether any of the other Common Exclusions apply.  The appellants point to the specific
    reference to some of the Common Exclusions in the endorsement itself.  For convenience, I repeat that part of the Endorsement
    and have added the clause numbers that correspond to the Common Exclusions in
    the policy:

All other
    terms conditions and exclusions of this policy remain unchanged, including the
    exclusions regarding
:

-(5)
loss or damage:

-           occurring
    before during or after flood waters reach the premises. "Flood"
    includes waves, tides, tidal wave:, and the rising or overflow of any stream of
    water or body of water, whether natural or manmade;

-           caused
    by impact by water-borne objects.

-
(8)
loss or damage caused by wear and tear,
    deterioration, defect or mechanical, electrical or electronic breakdown or
    disturbance, rust or corrosion, dampness of atmosphere, extremes of
    temperature, wet or dry rot, fungi or spores,
but
resulting damage to
    other property caused by a peril not otherwise excluded is insured.

-
(10)
the cost of making good faulty material or
    workmanship.

-
(18)
loss or damage caused by vermin, insects,
    rodents, raccoons or birds.

[20]

Counsel for the appellants points out that Endorsement 33b
    exactly duplicates clauses 5, 8, 10 and part of 18.  He submits that if the introductory language
    to this part of the endorsement  All other terms conditions and exclusions of
    this policy remain unchanged, including the exclusions regarding  was intended
    to incorporate all of the Common Exclusions there would be no need for
    reference to these specific exclusions.  If the respondent intended to have Common Exclusion 11 apply to the
    endorsement, it should have said so explicitly as it has with Common Exclusions
    5, 8, 10 and part of 18.  This submission
    finds support in the decision of this court in
Wigle
in the excerpt set out earlier, which is as follows:

Limitations on the apparent coverage in the endorsement
    that are ambiguous in the sense that they are not clearly apparent, should be
    set out in the endorsement itself.  If it
    was the intention of the insurer that the endorsement was not to cover an
    unidentified vehicle, it would have been a simple matter to say so in the
    explanatory note.

[21]

The appellants submit that by including certain
    exclusions in the Endorsement but intending nevertheless to include all the
    other Common Exclusions, Endorsement 33b has become a trap for the unwary.  The homeowners would read the Endorsement and
    understand that it covers all risks of direct physical loss or damage to their
    swimming pool, except the express exclusions; but unbeknownst to them all the
    other Common Exclusions apply including Exclusion 11, which, it seems, would be
    the most likely and obvious source of loss or damage to a swimming pool.

[22]

The appellants submit that if the insurer is correct in
    its interpretation, the inclusion of particular Common Exclusions in the Endorsement
    was redundant.  True, if the appellants
    are correct then the term exclusions is redundant in the phrase: All other
    terms conditions and exclusions of this policy remain unchanged.  However, since it is the respondent that
    drafted the policy it is for it to explain the redundancy.  At the very least, the endorsement is
    ambiguous and the ambiguity should be interpreted against the insurer.

[23]

In that respect, the appellants point to Endorsement
    22b, which is clear in terms of the exclusions that are meant to apply.  That endorsement states simply that it
    insures against loss from fire, explosion or smoke from earthquake shock
    subject to the exclusions and conditions of your policy.  It then refers to additional
    exclusions.  The homeowners looking at
    Endorsement 22b would know that they must look to the Common Exclusions in the
    policy and the other additional exclusions in the endorsement.  There is no trap for the unwary in
    Endorsement 22b, unlike Endorsement 33b.  There is much to be said for the appellants submission as to ambiguity
    of the Endorsement.  However, in my view,
    this case can be resolved by resort to the nullification of coverage doctrine
    to which I now turn.

Nullification of Coverage

[24]

The application judge found against the appellants on
    the nullification of coverage issue because there was no evidence that the
    effect of Common Exclusion 11 was to nullify coverage and no objective evidence
    as to the reasonable expectations of the parties.  In reaching that conclusion the application
    judge referred to
Zurich Insurance, Excel
    Cleaning
, and
Western Ornamental
.  The application judge considered that in all
    of those cases there was an evidentiary record upon which to form the judgment
    that coverage had been virtually nullified by the scope of the exclusion. But,
    there was no such record in this case.

[25]

It may well be that there was some evidence in those
    cases from which a determination could be made about nullification of coverage
    and reasonable expectations of the parties, but there is no case that holds
    such evidence is essential.  Thus, in one
    of the recent cases from the Supreme Court of Canada concerning reasonable
    expectations,
Reid Crowther &
    Partners Ltd. v. Simcoe & Erie General Insurance Co.,
it is not
    apparent that the court relied upon evidence in determining the reasonable
    expectations of the parties.

[26]

Another example is
Foodpro
    National Inc. v. General Accident Assurance Co. of Canada et al.
(1986), 57
    O.R. (2d) 489 (H.C.J.), where the trial judge was required to interpret a
    so-called sistership exclusion in an insurance policy.  The trial judge, making no reference to the
    nullification of coverage doctrine, interpreted the provision as covering the
    loss.  On appeal to this court at 63 O.R.
    (2d) 288 (leave to appeal to S.C.C. refused, [1988] S.C.C.A. No. 707), the
    court held as follows:

In our opinion the interpretation of the
    exclusionary clause by the weekly court judge was the interpretation placed on
    it by the American authorities where it has been considered. That interpretation
    is one which the clause can properly bear and conforms with the acknowledged
    purpose for which the clause was created.
To
    give the clause the interpretation urged by the appellant insurers would be to
    render nugatory the coverage for the most obvious risks for which the policies
    were issued.
[Emphasis added.]

[27]

It is not apparent that this court referred to any
    evidence in reaching the conclusion that the clause would not cover the most
    obvious risks for which such policies are issued.  There is certainly no indication that there
    was any burden on the insured to lead evidence to that effect.

[28]

I agree that in some cases evidence may be needed,
    especially if the case concerns some particularly arcane set of circumstances.  It seems to me that a court is in a good
    position to determine what are the most obvious risks for which an ordinary
    homeowners policy is issued.  If the
    court is able to determine on an objective basis that the insurers
    interpretation would render nugatory coverage for the most obvious risks for
    which the endorsement is issued, a tactical burden shifts to the insurer.  It will be for the insurer to show that the
    effect of its interpretation would not virtually nullify the coverage and would
    not be contrary to the reasonable expectations of the ordinary person as to the
    coverage purchased.  This is a reasonable
    approach given that the insurer is in an ideal position to show that, contrary
    to what appears to be the case, the endorsement does in fact provide coverage.  For example, the insurer would have access to
    its records and the experience in the industry and would be able to show that
    claims have been paid for loss or damage not falling within the exclusion.

[29]

I have no difficulty in finding that Common Exclusion
    11 would, to use the words of
Foodpro,
render nugatory the coverage for the most obvious risks for which the endorsement
    was issued.  Common Exclusion 11 excludes
    coverage for settling, expansion, contraction, moving, bulging, buckling or
    cracking of any insured property,
except
resulting damage to building
    glass.  The most common causes of loss
    or damage for a homeowners policy such as theft or fire have no obvious
    application to an outdoor in-ground swimming pool.  It is difficult to conceive of any damage or
    loss to an in-ground swimming pool that would not come within that exclusion,
    especially the word cracking.  When
    counsel for the respondent insurer was pressed for an example that would not
    come within Common Exclusion 11, he was unable to do so.  In fact, the only loss that I can think of
    that might be covered by Endorsement 33b and not excluded by the Common
    Exclusions is that covered by Common Exclusion 12, which reads as follows:

We do not insure:

(12) marring or scratching of any property
unless
caused by impact by land vehicle, aircraft, satellite or spacecraft, riot,
    vandalism, hail, windstorm, theft or attempted theft or transportation as
    defined in exclusion (7) above.

[30]

It hardly seems likely that the appellants would have
    purchased the Endorsement if they knew it only covered marring or scratching given
    the $500 deductible; or that it was limited to marring and scratching from the
    impact of a land vehicle, aircraft, satellite, spacecraft, riot, vandalism,
    hail, windstorm and theft, none of which seem very likely candidates for damage
    to an in-ground outdoor pool.   Even less likely if they knew that if the
    impact resulted in cracking of the pool it would not be covered because of
    Common Exclusion 11.

[31]

In my view, application of Common Exclusion 11 to
    Endorsement 33b would virtually nullify coverage.  Such a result could not have been within the
    reasonable expectation of the parties.

DISPOSITION

[32]

Accordingly, I would allow the appeal, set aside the
    judgment and grant a declaration that the appellants have coverage for the loss
    relating to their outdoor in-ground swimming pool.  The appellants are entitled to their costs of
    the application and the appeal which I would fix at $7,500 and $5,000
    respectively inclusive of disbursements and applicable taxes.

Signed:           M. Rosenberg J.A.

I
    agree J. C. MacPherson J.A.

I
    agree H. S. LaForme J.A.

RELEASED: MR February 8, 2011


CITATION: Dobreff v. Davenport, 2011
      ONCA 90

DATE: 20110202

DOCKET: C52449

COURT OF APPEAL FOR ONTARIO

OConnor A.C.J.O., MacPherson and Cronk JJ.A.

BETWEEN

Peter Dobreff

Appellant

and

Paul Davenport, Roma Harris, Alan Weedon, Dimitre
          Karamanev, Stephen Jarrett, Theresa Morrissey, Elgin Austen, Ryan Craig,
          Cyril Murphy, Joanna Blom, Murray Faulkner, Bradley Duncan, Robert Kerr,
          University of Western Ontario, London Police Services Board

Respondents

AND BETWEEN

Peter
          Dobreff

Appellant

and

Constables
          Richard Veerman, Amanda Van Doren, Sergeant Wood from London Police Service
          and London Police Services

Respondents

AND BETWEEN

Peter
          Dobreff

Appellant

and

Paul
          Morrissey, Paul Sprague and Siskinds LLP

Respondents

No one appearing, for the appellant

M. Paul Morrissey, for the respondents

S. Peters for the Public Guardian and Trustee

Heard:  January 28, 2011

On appeal from the order of Justice John F. McGarry of the Superior
          Court of Justice dated July 12, 2010.

APPEAL BOOK ENDORSEMENT

[1]

The appellants request for an adjournment of the appeal is dismissed.
    The appellant was given ample notice of the date of the appeal and the
    opportunity to participate by audio or video conference.  He did not appear or
    call in.

[2]

The appeal is dismissed as moot.  The respondents counsel informed the
    court that the appellant has filed a fourth statement of claim that conforms
    with the order under appeal.  The respondents have filed a statement of defence
    and are prepared to proceed on the basis of the pleadings.

[3]

The appellant shall pay the respondents costs of the appeal fixed in
    the amount of $6,600, inclusive of disbursements and applicable taxes.


CITATION:
Drake v. Stratford
          (City), 2011 ONCA 98

DATE: 20110208

DOCKET: C52172

COURT OF APPEAL FOR ONTARIO

Sharpe, Blair and
Rouleau
JJ.A.

BETWEEN

Thomas Glen Drake and David Hugh Drake

Applicants (Appellants)

and

The Corporation of the City of Stratford

Respondent (Respondent in Appeal)

D. Andrew Thomson, for the appellants

Michael A. Van
Bodegom
and Daniel W.
Veinot
, for the respondent

Heard:
February 1, 2011

On appeal from the judgment of Justice L.C. Templeton of the
          Superior Court of Justice dated April 29, 2010.

ENDORSEMENT

[1]

T
his appeal arises from a dispute between the appellants and
    the respondent City regarding access to Joffre Street, a municipal street that
    ends in a cul-de-sac, bordered by a grassy strip of land owned by the City, at
    the back of the appellants property.  The
    appellants wish to access the back of their property from Joffre Street to
    facilitate a building project.  This
    would involve crossing the grassy strip of land owned by the City that
    separates the appellants property from the Joffre St. cul-de-sac.

[2]

The appellants request was first considered by the
    Citys Public Works Sub-Committee which recommended that they be allowed
    access.  However, the issue was then
    referred to the Public Works Committee, consisting of all members of Council,
    which recommended against the appellants request.  That recommendation was accepted by City
    Council and the appellants request was denied.

[3]

The appellants brought an application for an order
    pursuant to rule 14.05 (2) and the
Municipal
    Act, 2002
, declaring the resolution denying their request to be invalid and
    of no force and effect and other related relief.

[4]

The application judge found that the grassy strip
    separating the appellants property from Joffre Street was City property that
    did not form part of the street and that the appellants had no right to use it
    to gain access to their property.  However,
    the application judge concluded that the City Council resolution denying the
    appellants request was tainted by bad faith on the ground that the process
    lacked the candour, frankness and impartiality that is required of municipal
    bodies because:

·

notice of the proceedings had been given
    only to neighbours who had complained;

·

the appellants were not given access to
    letters and complaints submitted to the City; and

·

the
Public Works Committee and/or Council considered objections relating to the
    installation of a permanent driveway which was not what the appellants had
    requested.

[5]

The application judge ordered that the appellants
    request for access be recommenced on full notice to all residents in the area
    and that the applicants and objectors be afforded a full right of disclosure of
    material evidence to be considered by the deciding body.

[6]

The appellants appeal the application judges dismissal
    of their claim to a right of access and the City cross-appeals the order
    nullifying the resolution denying the appellants request and ordering further
    proceedings

Analysis

1. Did the application judge err in finding that the
    appellants had no right of access?

[7]

The appellants submit that when a private owner
    conveyed to the city the property for the Joffre St. cul-de-sac in 1954, there
    was dedication by the owner and acceptance by the City of the entire parcel as
    a public road.

[8]

We are unable to accept that submission.  The City by-law enacted at the time of the
    conveyance from the private owner in 1954 accepted as part of Joffre St. only a
    specifically described parcel of land.  It
    is common ground that the parcel of land as described in the by-law excluded
    the grassy strip that is at issue in this appeal.  In our view, the combined effect of the
    conveyance and the by-law was to transfer the entire parcel to the City but to
    limit the Citys acceptance of the parcel as a public road to that portion of
    the lands so described.

[9]

The Citys acceptance of only part of the conveyed land
    as a public road is confirmed by the usage in the succeeding years.  Only part of the parcel is paved and used as a
    public road and the City has consistently maintained that the grassy strip is a
    distinct piece of city property that does not form part of the public road.

[10]

The appellants rely on
Stager v.
Muskoka
Lakes (Township)
(1989), 71 O.R. (2d) 126 (Div. Ct.).  That case is distinguishable.  In
    the case at bar, the municipal by-law shows that only a portion of the lands
    conveyed by the former owner were accepted for purpose of creating Joffre St. and
    only the portion accepted became a public road.

[11]

Accordingly we reject the submission that the
    application judge erred by finding that the grassy strip did not form part of
    Joffre St.

2. Did the trial judge err in finding that the Citys
    consideration of the appellants request for permission to access Joffre St.
    was tainted by bad faith?

[12]

We agree with the City that the application judge
    appears to have misapprehended the evidence as to what occurred before the
    Council.  With respect to the
    notification of other parties she confused or conflated the request and issue
    before her and the appellants earlier request in 2005 for permission to access
    the Joffre Street.

[13]

We also agree with the City that the application judge
    erred by weighing in her determination that the entire process was deficient because
    of the alleged procedural defects that occurred before the Public Works
    Sub-Committee.  As the appellants were
    successful before the Sub-Committee we fail to see how any defect in the
    process at that level infected the outcome before the Council.

[14]

We see no basis in the record for the application judges
    conclusion that the Public Works Committee and/or Council were diverted from
    their task by considering objections relating to the installation of a
    permanent driveway rather than the request for temporary access.  That contention is not supported by the
    evidence including the minutes of the meetings.

[15]

More fundamentally, it is our view that the application
    judge erred by applying standards of procedural fairness that are more
    applicable to an adjudicative body than to the proceedings of an elected
    municipal council.  The Council is an
    elected legislative body. It was under no statutory or common law duty to
    provide a quasi-judicial hearing to the appellants who were requesting access
    over the Citys property.

[16]

In any event, the appellants attended three meetings of
    Council or Council committees and they were afforded the opportunity to make
    submissions.  They were permitted to file
    detailed written submissions and they did not object at any time to the process
    adopted at the various meetings they attended.  They did not request adjournments, nor did
    they ask the City to take any other procedural step in the course of these
    various meetings.

[17]

The appellants were afforded the opportunity to present
    their case and the opportunity they were afforded was sufficient to satisfy any
    duty imposed on the City and to displace any suggestion of bad faith on the
    part of the City.

Disposition

[18]

Accordingly, we dismiss the
appeal,
allow the cross-appeal and set aside paragraphs 2 and 3 of the application
    judges order.  The City is entitled to
    its costs of both the application and the appeal fixed at $20,000 for the
    application and $12,000 for the appeal, both sums inclusive of disbursements
    and applicable taxes.

Robert J. Sharpe

R.A. Blair J.A.

Paul Rouleau J.A.


CITATION: Hurrell (Re), 2011 ONCA
      131

DATE: 20110215

DOCKET: C52078

COURT OF APPEAL FOR ONTARIO

Laskin, Feldman and Armstrong JJ.A.

IN THE MATTER OF: David Hurrell

David Hurrell,
          appearing in person

Joseph Di Luca, as
amicus curiae

Matthew Asma, for the Attorney General

Heard: February 14, 2011

On appeal against the disposition of the Ontario Review Board,
          dated March 22, 2010.

APPEAL BOOK ENDORSEMENT

[1]

Mr. Hurrell spoke eloquently about the frustrations he experiences
    living in the institution.   We hope that the Review Board will take Mr.
    Hurrells concerns into account at the next hearing, scheduled for March 8,
    2011.

[2]

On this appeal, having reviewed all of the material filed, including Mr.
    Hurrells hand printed memorandum, we are of the view that the Boards decision
    was reasonable.

[3]

The appeal is dismissed.


CITATION: Isaacs v. Royal Bank of
      Canada, 2011 ONCA 88

DATE: 20110201

DOCKET: C52454

COURT OF APPEAL FOR ONTARIO

OConnor A.C.J.O., MacPherson and Cronk JJ.A.

BETWEEN

Angelita Isaacs

Plaintiff/Appellant

and

Royal Bank of Canada

Defendant/Respondent

AND BETWEEN

Royal
          Bank of Canada

Plaintiff by Counterclaim

and

Angelita
          Isaacs
and Mark Anthony Forrest

Defendants to the Counterclaim

Avrum D. Slodovnick, for the plaintiff/appellant /defendant
          to counterclaim, Angelita Isaacs

Leigh Ann Sheather, for the defendant/respondent/plaintiff
          by counterclaim

Heard and released orally: January 28, 2011

On appeal from the judgment of Justice Anne M. Molloy of the
          Superior Court of Justice, dated June 17, 2010.

ENDORSEMENT

[1]

Angelita Isaacs (the appellant) appeals from the motion judges ruling
    on a summary judgment motion dismissing her action and granting the respondent Banks
    counterclaim for damages in respect of monies owed under a residential
    mortgage.

[2]

The central issue is who, as between two allegedly innocent victims of
    mortgage fraud (the appellant and the Bank), should bear the loss occasioned by
    the fraud.  The appellant contends that, in this case, the Bank was in the
    superior position to avoid the fraud and therefore should bear its own loss.
    The motion judge rejected this argument, holding that it was the appellant who
    was in the best position to detect and prevent any fraud.

[3]

We agree.  A simple review by the Bank of the mortgage documents
    submitted by or on behalf of the appellant could not and did not reveal any
    prospect of fraud to the Bank.  In sharp contrast, as the motion judge found,
    had the appellant taken the simple precaution of reading the many documents she
    signed, the fraudulent nature of the mortgage transaction would have been
    immediately apparent.  There was ample evidence on this record to support the
    motion judges finding that the appellant was in the best position to detect
    and prevent the fraud.

[4]

Moreover, contrary to the appellants submission, this is not a case involving
    two equally innocent parties.  The appellant was not entirely innocent of any
    wrongdoing.  She agreed to serve as an accommodation mortgagor for a stranger,
    for compensation, without disclosure to the Bank of the nature of the
    transaction.

[5]

The motion judge found that, in so doing, the appellant assisted the
    fraudsters to perpetuate the fraud even if she did not know the particulars of
    the transaction.  This finding was open to the motion judge on the evidence.

[6]

The Banks conduct, at its highest, was careless.  But the appellants
    conduct was more than careless.  It involved affirmative action on her part
    that facilitated the fraud.  This is a significant distinction between the
    nature of the parties conduct.

[7]

This factor also distinguishes this case on the facts from
Marvco
    Colour Research Ltd. v. Harris
, [1982] 2 S.C.R. 774, where two innocent
    parties fell victim to fraud by third parties.  In this case, as we have said,
    both parties were careless.  However, both parties were not innocent of any
    wrongdoing.  On these facts, where the carelessness of one party involves active
    participation in the fraudulent scheme and results in the wrongdoing being able
    to inflict the loss, that party must bear the burden of the loss.

[8]

Further, as the motion judge found, the appellant in the end got what
    she bargained for.  She received $6,000 for her assumption of the risk of
    making payments on the mortgage.  That is the risk that eventually
    materialized.

[9]

The appellant relies on several deferred indefeasibility cases to
    argue that, as the Banks carelessness in this case was at least equal to that of
    the appellant, the Bank should not be permitted to escape all contributory
    liability for the outstanding mortgage debt.

[10]

In our view, these cases do not assist the appellant.  They involve
    theft of the identities of persons who had no involvement in the fraudulent
    activity that effected the frauds.  In contrast, as we have indicated, in this
    case the appellants participation was part of the fraudulent scheme itself.
    Her actions directly contributed to the Banks advance of funds to its
    detriment.

[11]

In all these circumstances, the motion judge did not err in concluding
    that there was no genuine issue requiring a trial in this case.

[12]

The appeal is therefore dismissed.  In our view, this is not an
    appropriate case for an award of the costs of the appeal.

Dennis
    OConnor A.C.J.O.

J.C.
    MacPherson J.A.

E.A.
    Cronk J.A.


CITATION:
Issasi
v. Rosenzweig, 2011
          ONCA 112

DATE: 20110208

DOCKET: M39536 (C52822)

COURT OF APPEAL FOR ONTARIO

Weiler J.A. (In Chambers)

BETWEEN

Amparo

Marlen
Rodriguez
Issasi

Applicant (Respondent/Responding Party)

and

Kenneth
Espinal
Rosenzweig

Respondent (Appellant/Moving Party)

Jeffery Wilson, for the appellant/moving party

Philip Epstein, for the respondent/responding party

Heard: January 6, 2011

On appeal from the order of Justice
          George Czutrin of the Superior Court of Justice, dated September 21, 2010,
          and on a motion to extend the time to perfect the appeal.

Weiler J.A. (In Chambers):

[1]

The appellant, Kenneth
Espinal
Rosenzweig, seeks an order granting leave to extend the time to perfect his
    appeal to the day following the determination of this motion.  The respondent,
Amparo

Marlen
Rodriguez
Issasi
,
    opposes the motion.

[2]

Rule 3.02(1) of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194, provides that the court may
    extend the time prescribed by the rules on such terms as are just.

[3]

The motion arises out of an appeal of an order made
    pursuant to Articles 3 and 12 of the Hague
Convention
    on the Civil Aspects of International Child Abduction
, Can. T.S. 1983 No.
    35 (the Hague Convention).  The order declared
    that
Josette

Issasi
Rosenzweig, then aged 13, was being wrongfully retained in Ontario by her
    father, Mr. Rosenzweig, and ordered that she be returned to her habitual
    residence with her mother, Ms.
Issasi
, in Cancun,
    Quintana
Roo
, Mexico.  That order has been carried out.

[4]

Although this motion involves a request for leave to
    extend the time to perfect an appeal, it is useful to consider the factors that
    apply when determining whether to exercise discretion to extend the time for
    filing a notice of appeal:  see
Monteith
v.
Monteith
,
    [2010] O.J. No. 346, at para. 11.  They
    are:

(1)

whether the appellant formed an intention to appeal
    within the relevant period;

(2)

the length of the delay and explanation for the delay;

(3)

any prejudice to the respondent;

(4)

the merits of the appeal; and

(5)

whether
the justice of the
    case requires it.

See Todd Archibald, Gordon Killeen & James C. Morton,
Ontario Superior Court Practice,

2011
(Markham:  Lexis
Nexis
Canada
    Inc., 2010), at p.580;
Rizzi v.
Mavros
(2007), 85 O.R. (3d) 401 (C.A.), at para.
16; and
Kefeli
v. Centennial College of Applied Arts and
    Technology
(2002), 23 C.P.C. (5th) 35 (Ont. C.A.), at para.
14.

[5]

The first two factors may be considered together.  For the first factor, since this is a motion
    for an extension of time to
perfect
an appeal, instead of asking whether the appellant
formed
an intention to appeal, I would ask whether the appellant
maintained
that intention to appeal
    within the relevant period.  I must also
    consider whether the appellant has provided a reasonable excuse for the delay
    in perfecting the appeal.

[6]

Mr.
Rosenzweigs
counsel
    sought to perfect the appeal on December 15, 2010 but was advised by this court
    that this was one day late.  Rule
    61.09(1) governs the time within which an appeal is to be perfected.  The rule provides that the time to perfect an
    appeal is 30 days after filing the notice of appeal where no transcript of
    evidence is required for the appeal (r. 61.09(1)(a)), and 60 days after
    receiving notice that the evidence has been transcribed where a transcript of
    evidence is required for the appeal (r. 61.09(1)(b)).  Since Mr.
Rosenzweigs
counsel had filed the Appellants Certificate stating that a transcript of the motion
    hearing was required, his counsel mistakenly understood that the time to
    perfect the appeal was 60 days after receiving notice that the transcript of
    the hearing was ready.

[7]

On the day that Ms.
Issasis
application was before the motion judge at first instance, counsels
    submissions and the judges comments were recorded.  A transcript was ordered for the appeal.  While Mr.
Rosenzweigs
counsel argues this is evidence such that rule 61.09(1
)(
b)
    applies and he does not require leave to perfect, I do not agree.  Although counsel may require a transcript for
    purposes of arguing the appeal, I am satisfied that the term evidence as used
    in the rules refers to the transcription of evidence that was sworn or
    affirmed.  Thus, rule 61.09(1
)(
a) applies and the deadline for perfection was December
    14, 2010.

[8]

Opposing counsel refused to give consent to perfect the
    appeal one day late for reasons I shall discuss when dealing with the justice
    of the case.  Suffice it to say that the
    first two factors that must be considered, in this case, whether the intention
    to appeal was maintained, and an explanation for the delay, are met.

[9]

As for the third factor, Ms.
Issasi
has filed no personal affidavit in response to the motion, and thus I have no
    basis on which to infer prejudice.  The requested
    extension of time to perfect is brief.

[10]

The fourth factor I am required to consider is the
    merits of the appeal, not with a view to determining whether the appeal will
    succeed, but to determine whether it has so little merit that the court could
    reasonably deny the important right of an appeal:  see
Duca
Community Credit
    Union Ltd. v.
Giovannoli
et al.
(2001), 142
    O.A.C. 146 (C.A.), at para. 15.

[11]

The judge at first instance gave no reasons apart from
    the order itself.  This may have been
    because he accepted the undisputed evidence before him.  The mother, Ms.
Issasi
,
    who had sole custody of the child, sent her to visit her father, Mr.
    Rosenzweig, with her maternal grandmother and uncle.  The grandmother and uncle returned to Mexico
    on the scheduled flight date without the child.  The child remained in Canada, allegedly to receive dental attention, but
    it soon became clear Mr. Rosenzweig would not return her.  Although Mr. Rosenzweig was served with the
    application by mail at his address in Norway and by regular service on his
    sister at her home in Toronto, he filed no material in response opposing it.  The lack of any reasons raises a concern that
    on the whole of the record, the proceedings may not permit appellate review.  A complication is the fact that, at the time
    of the hearing, the child had been granted status as a Refugee.  I cannot say that the appeal has so little
    merit that the right of appeal should be denied.

[12]

The real issue on this motion is the final factor, the
    justice of the case.  Counsel for Ms.
Issasi
submits that the appeal itself is an abuse of
    process inasmuch as Mr. Rosenzweig is not the real party behind the
    appeal.  The childs aunt, who is Mr.
Rosenzweigs
sister,
Josette
Rosenzweig
Espinal
(JRE), sought to be added as a respondent to Ms.
Issasis
application under
the
Hague Convention but her application was refused.  She did not appeal that decision.

[13]

The endorsement
    of Klowak J. rejecting JREs application is instructive on the issue of whether
    Mr. Rosenzweig is the appellant.  Klowak
    J. found that when the child came to Canada to visit her father, she lived with
    JRE and her spouse.  Without notice to Ms.
Issasi
, JRE initiated and arranged for the child to
    apply for refugee status in this country.  In support of that application, they obtained a psychological report to
    the effect that the child was fearful of returning to Mexico because of her
    mothers abusive conduct over the years in that country.
[1]
The child was granted refugee status
    without any attempt to notify Ms.
Issasi
.  Mr. Rosenzweig did not respond to the Hague Convention
    proceeding.  He himself had been refused
    refugee status in Canada and left for Norway before being deported.  He was seeking refugee status in Norway.  Klowak J. observed that Mr. Rosenzweig seems
    to have had little to do with the child while in Mexico, mother had sole
    custody, and he was delinquent in his support payments.

[14]

Mr. Rosenzweig has sworn no affidavit in support of the
    application to extend the time within which to perfect the appeal.  The affidavit of counsels legal assistant
    has been filed.  There is also in the
    record a letter signed by JRE, stating, Please find enclosed Mr.
Rosenzweigs
Notice of Appeal and Appellants Certificate.

[15]

Ms.
Issasis
submission is
    that JRE is doing indirectly what she has no standing to do directly:  that is, appeal the order returning the child
    to Mexico under the Hague Convention.

[16]

While the material in the record certainly raises the
    suspicion that that may be so, I am of the opinion that the issues of standing
    and abuse of process are also best dealt with as a preliminary issue by the
    panel hearing the appeal.

[17]

Accordingly, leave to extend the time within which to
    perfect the appeal is granted and the time to perfect the appeal is extended to
    February 10, 2011.

[18]

Mr.
Rosenzweigs
counsel also
    requested that the appeal be expedited.  All
    appeals of this nature are expedited.  I
    am confident that a suitable early date to hear this appeal will be found.  In the event that
counsel
    wish
an even earlier date than that proposed, counsel should arrange an
    appointment with the list judge.

[19]

Neither party is seeking costs.  I understand that both counsel are acting pro
    bono and wish to commend them for their willingness to do so.

Karen M.
Weiler
J.A.

[1]
Before
    me, counsel for Ms.
Issasi
pointed out that the
    record shows that at the same time the child was emailing her mother and telling
    her how much she missed her.


CITATION:
Khamis v. Noormohamed, 2011
          ONCA 127

DATE: 20110215

DOCKET: C50751

COURT OF APPEAL FOR ONTARIO

Moldaver, Gillese and LaForme JJ.A.

BETWEEN

Shiraz Khamis

Appellant (Applicant)

and

Yasmin Noormohamed

Respondent (Respondent)

Alnaz I. Jiwa, for the appellant

Michael J. Polisuk, for the respondent

Heard: February 9, 2011

On appeal from the judgment of Justice Nancy Backhouse of the
          Superior Court of Justice, dated June 1, 2009.

By The Court:

INTRODUCTION

[1]

The
    appellant husband and respondent wife were married on April 27, 1996, and
    separated on March 27, 2006.  Both of
    them are currently 61 years old and there are no children of the marriage.

[2]

The
    trial lasted six days with the major issue being the equalization of net family
    property under the
Family Law Act
,
    R.S.O. 1990, c. F.3.  The trial judge,
    after providing comprehensive reasons for her findings, ordered that:

(i)        The divorce be granted;

(ii)      The husband is to pay $84,999 to the
    wife.  Of this amount, approximately
    $65,000 was for equalization and $20,000 was pursuant to the contract of Maher
    the parties entered into at the time of marriage;

(iii)     An
    equal division of jointly held mutual funds; and

(iv)     The sale of the matrimonial home, which is
    to be divided equally after the wife first receives $84,999.

[3]

The
    husband appeals from the trial judges decision. In concluding that the appeal
    must fail, we note at the outset that the grounds of appeal are almost entirely
    fact driven.
The appeal raises no
    issues of law except in relation to the marriage contract (the Maher), which
    the trial judge considered and found to be valid and not contrary to Ontario
    law.  As we address further below, we
    agree with her analysis and conclusions as well as her factual findings
    supporting its validity.  The remainder
    of the case, as we have said, is fact driven and dependent largely on the trial
    judges findings of credibility.

[4]

In sum, the trial judge gave thorough and
    persuasive reasons for her factual findings.  We do not accept that she misapprehended the evidence by failing to
    consider or appreciate all of the relevant evidence.  Nor do we accept that the trial judge erred
    by considering matters that had not been pleaded.

GROUNDS OF APPEAL

[5]

The
    three main grounds advanced by the husband are as follows.  First, he submits that the trial judge erred
    in her treatment of the $100,000 the wife received in connection with her
    settlement of a motor vehicle accident claim.  Second, he argues that the trial judge erred in concluding that the
    husband recklessly depleted matrimonial assets in connection with
    $216,000.  Third, he submits that the
    trial judge erred in her treatment of assets the parties had at the date of
    marriage.

[6]

What
    follows are our reasons for dismissing the appeal.  We deal first with the husbands complaints
    about the pleadings.

DISCUSSION

The Pleadings

[7]

The husband contends that the trial judge erred in deciding
    two issues against him that were not pleaded, namely: (1) the wifes claim that
    she was entitled to exclude from her net family property $100,000 that
    represented damages for pain and suffering she received from a motor vehicle
    accident; and (2) the unequal division of assets for an alleged investment loss
    occasioned by the husband on the ground of reckless depletion.  We would not give effect to either submission.

[8]

With
    respect to the $100,000, the husband did not seek an adjournment or further
    production when he learned of the wifes position regarding it. Instead, he
    argued the matter fully and relied on deficiencies of proof in the wifes
    evidence.  Accordingly, he cannot
    complain at this stage.  As for the
    unequal division of assets, the wife was clear in her answer to the husbands
    position; she sought an unequal division of assets. In the circumstances,
    nothing further was required.  No one was
    taken by surprise at trial. The issues in dispute were known to the parties and
    fully canvassed.  No unfairness was
    occasioned.

The Maher Agreement

[9]

The trial judge provided cogent reasons for
    concluding that the Maher Agreement was enforceable.  At para. 69 of her reasons, she set out some of
    the factual underpinnings for her conclusion:

The marriage contract in this
    case was in writing and signed by both parties.  The parties signatures were both witnessed.  There is a certificate by the Mukhi and
    Kamadia who officiated at the marriage that the parties signed the marriage
    contract of their own free will, and volition.

At paras. 73 and 74, the trial judge made the following
    observations:

Setting aside a marriage contract under s. 56(4) of
the Family Law Act
is discretionary.
    This is not a case where the parties were opting out or giving up rights under
    the
Family Law Act
where understanding
    the legislative scheme and the other partys financial position were critical.
    The terms of the marriage contract were simple. Other than the payment of the
maher
amount of $20,000, the parties
    retained their rights under the
Family
    Law Act
. The evidence satisfies me that the husband understood the promise
    he made and understood that it was binding upon him. I am not persuaded that,
    in these circumstances, the court should exercise its discretion to set aside
    the contract.

The husband submitted that if the $20,000
maher
was enforceable, then his net
    family property at the date of separation should be reduced by the $20,000 for
    the debt then owing. The $20,000 obligation was entered into and in existence
    at the date of marriage and comes within the definition of net family
    property.  It also existed at the date
    of separation.  Accordingly, there is no
    effect on net family property.  By
    necessary implication of the words in addition and without prejudice to and
    not in substitution of all my obligations provided for by the laws of the
    land, the
maher
amount is excluded
    from net family property.  Otherwise it
    would undermine the express intention of the agreement and the contract would
    have no meaning.  I find that the $20,000
maher
also comes within the meaning
    of s. 4(2)6 of the
Family Law Act
and
    therefore is excluded from net family property.  It provides:

4(2)6. Property
    that the spouses have agreed by a domestic contract is not to be included in the
    spouses net family property.

[10]

We see no basis for interfering with the trial judges
    analysis or conclusion.  We therefore
    reject this argument.

The Remaining Grounds of Appeal

[11]

As
    to the remaining grounds of appeal, to repeat, this was a fact driven case in
    which the trial judge had to decide the issues based on the evidence presented
    at trial.  Whether that evidence could
    have been more or better is not the test.  Rather, the test on appeal is whether there was sufficient evidence upon
    which the trial judge could make the findings she did and whether those
    findings are reasonable.

[12]

The
    findings by the trial judge in this case are all grounded in the evidence
    presented at trial.  A significant part
    of this evidence was the testimony of the husband and the wife.  The trial judge believed most of the evidence
    of the wife and rejected most of the evidence of the husband.  Her findings of fact based on the evidence,
    including credibility findings of these witnesses, are entitled to deference
    unless it can be demonstrated that they are manifestly wrong.

The $100,000 Exclusion from the Motor Vehicle Claim

[13]

The
    husband argues that other than a self-serving letter from the lawyer who acted
    for [the wife], no other documentation was givenupon which the payments were
    made to her.  His position appears to be
    that on this evidence, the trial judge could not have found that $100,000 of
    the damage award was for pain and suffering and therefore should not have been excluded
    from the wifes assets.  We see no merit
    to this submission.

[14]

The
    trial judge did not err in excluding the $100,000 from the assets of the
    wife.  The letter from the lawyer was not
    at all self-serving; rather it was a solicitors letter explaining the
    breakdown of the settlement of funds the wife received from a motor vehicle
    accident.  There was no reason why the
    trial judge could not rely on this letter, together with the evidence of the
    wife whom the trial judge believed on this issue.  Moreover, there was no evidence to the
    contrary.

[15]

The
    evidence was sufficient, therefore, to permit the trial judge to find that the
    wife received these monies pursuant to a settlement for her claim for damages arising
    out of a motor vehicle accident and that the amount of $100,000 was for pain
    and suffering.  There was no error in the
    trial judges finding that this amount should be excluded from her net family
    property.

The Joint Account

[16]

The
    husband argues that the trial judge misapprehended, ignored or misapplied
    relevant evidence in finding that the husband recklessly depleted $216,000 from
    the parties joint bank account.  He
    submits that the evidence at trial established that the investments made by him
    with these funds were made with the consent and knowledge of the wife.  We disagree.

[17]

The
    trial judge found that the husband was not candid in his evidence about how the
    amount of $216,000, which he removed from the joint account, was used by him. It
    was the wifes position that he used the funds, without her knowledge, to make
    speculative investments. She also maintained that the husband was depleting
    their joint assets in contemplation of the breakdown of their marriage.
    Significantly, the evidence at trial included a written acknowledgment from the
    husband admitting to these two facts. The acknowledgment was freely signed by
    him and executed in the presence of a trusted leader in the Muslim community.

[18]

The
    trial judge noted that the husband could not explain why $197,000 of the
    $216,000 was returned to him and deposited into a personal  account belonging to him six weeks after he
    gave the funds to a friend [Lloyd Robinson] to invest.  Further, he had no documentation to verify
    what happened to the funds after he withdrew them from his account and
    investments were not made in his name.  In the end, the trial judge concluded that in all the circumstances,
    the husband removed the funds for which the wife was jointly liable without
    her knowing about it and that he plotted with Lloyd Robinson to prevent her
    from finding out about it and to keep these funds from her. Notably, the
    husband did not call Mr. Robinson to give evidence at trial.

[19]

On
    the evidence, it was open to the trial judge to find that the husband
    intentionally dealt with this money so as to prevent the wife from knowing
    about it and to keep these funds from her. It was also open to her to find that
    he recklessly depleted the funds in speculative investments. Thus, she did not
    err in applying s. 5(6)(d) and s. 5(6)(g) of the
Family Law Act
.

Date of Marriage Assets

[20]

The
    husband submits that the trial judge erred in giving the wife credit for bringing
    to the marriage half of the proceeds from the sale of a property on St. Clair
    Avenue that the wife claimed she and her sister owned.  He suggests that the property really belonged
    to the wifes parents.

[21]

Again,
    we see nothing in this argument.  The
    trial judge had before her documents from the lawyer who completed the sale
    transaction showing that half of the proceeds were paid to the wife.  This was confirmed by income tax documents
    the wife filed at the relevant time.

[22]

The
    trial judge did not accept fully the wifes evidence as to the savings she
    brought to the marriage.  She reduced
    those sums based on documentation that the wife produced that was close in time
    to the date of marriage.  She accepted
    that the wife could not have acquired all the RRSPs and savings that she proved
    unless she held some of them at the date of marriage.  These findings were clearly open to the trial
    judge on the record.

[23]

The
    husband claimed that he brought a substantial amount of gold, totalling some
    $207,000, into the marriage.  The trial
    judge found that his evidence lacked any credibility.  In this regard, she observed that the husbands
    evidence was not supported by any documentation.  She further noted that the husbands evidence
    as to the value of the gold did not conform with his prior sworn statements and
    seemed to have been given for the first time at trial.  In the end, the trial judge concluded that
    the husband did not have any gold from his former jewellery business at the
    date of the marriage, that he gave none to the wife, and that he concocted the
    story  to increase his property claim.

[24]

It
    was open to the trial judge to make those findings.  While the husband complains that the wife did
    not produce bank records, which he says would have shown that she used monies
    from the sale of his gold to pay down an outstanding loan he had with the
    Laurentian Bank, the husband did not ask the trial judge to order production of
    the wifes bank records.

[25]

Given
    that the husband bore the onus of establishing the deduction, and bearing in
    mind the inadequacies of his evidence, his failure to seek production of the
    wifes bank records,  and the wifes
    evidence on the subject, which the trial judge believed, we would not give
    effect to this argument.

[26]

We
    find it unnecessary to address the remaining grounds of appeal as specified in
    the husbands factum.  They too are fact
    driven and we see no merit in any of them.

DISPOSITION

[27]

For
    these reasons, the appeal is dismissed.  The wife is awarded her costs of the appeal fixed in the amount of
    $7,500 inclusive of disbursements and applicable taxes.

Signed:
    M. J. Moldaver J.A.

E.E. Gillese J.A.

H. S. LaForme J.A. »

RELEASED:  EE
    FEBRUARY 15, 2011


CITATION:
Lawless v. Anderson, 2011
          ONCA 102

DATE: 20110208

DOCKET: C52232

COURT OF APPEAL FOR ONTARIO

Weiler, Blair and Rouleau JJ.A.

BETWEEN

Lillian Lawless

Plaintiff (Appellant)

and

Alvin
          James Anderson
and La Fontaine-Rish Medical Group
          Ltd.

Defendants (Respondent)

Paul J. Pape and Shantona Chaudhury, for the appellant

T.N.T. Sutton and S.R. Shody, for the respondent, Alvin James
          Anderson

Heard: December 7, 2011

On appeal from the order of Justice D.M. Brown of the Superior
          Court of Justice dated May 13, 2010, with reasons reported at 2010 ONSC 2723.

Rouleau J.A.:

INTRODUCTION

[1]

The appellant appeals the summary judgment granted by
    the motion judge dismissing her claim in negligence against the
    respondent.  The motion judge held that the
    claim was statute-barred, as the applicable limitation period had expired.

[2]

The issue on the motion and on appeal is
    discoverability under s. 5 of the
Limitations
    Act, 2002
, S.O., c. 24, Sched. B.  This
    court must determine what information the appellant needed to have in order to discover
    that she had a cause of action in negligence against the respondent arising out
    of the surgery that he performed on her.

FACTS

[3]

In
    June 2003, the appellant responded to an advertisement by the La Fontaine-Rish
    Medical Group Ltd., offering breast augmentation services.  She eventually met with the respondent, Dr.
    Anderson.  Having decided to proceed with
    the surgery, the appellant signed a consent form to undergo the procedure as
    well as a document entitled Procedure: Augmentation Mammaplasty.  This document warned of various risks,
    including hardness, persistent swelling, lack of symmetry, the potential
    need for further surgery and the possibility of permanent deformity, painful
    and unsightly scarring, and prolonged illness.

[4]

The
    respondent performed the surgery on the appellant on July 3, 2003.  He subsequently saw her on July 10, 17 and
    30.  His notes indicated some bruising
    and the need for an uplift mastoplexy at a later point in time.  On one of the follow-up visits, the appellant
    expressed concern regarding the appearance of her breasts and, in
response,
she was informed by clinic staff that she would
    need a second surgery to correct the first one.  According to the appellant, it was at this point that the
 red
flags went up and she sought a second opinion.

[5]

The appellant met with Dr. Michael Weinberg on November
    20, 2003.  Dr. Weinberg is a plastic
    surgeon who regularly acts as a medico-legal expert.  At that meeting, Dr. Weinberg informed her
    that she had been disfigured and that her breasts were deformed.  Dr. Weinberg went on to identify specific problems
    with how the respondent performed the surgery.  Specifically, he indicated that the respondent:

1)
should
not have used saline
    implants;

2)
should
have placed the implants in front
    rather than behind the muscle; and

3)
ought
to have done a
    mastoplexy at the same time as the breast augmentation procedure rather than
    have the two done separately.

[6]

Doctor Weinberg further advised the appellant that she
    would need corrective surgery.  He also told
    her that she should contact a lawyer and complain to the College of Physicians
    and Surgeons of Ontario about the treatment she received from the respondent.

[7]

Following the meeting, the appellant followed Dr. Weinbergs
    advice.  She filed a complaint with the
    College of Physicians and Surgeons of Ontario within a week and she arranged a
    meeting with a solicitor, Mr. Alan Rachlin.

[8]

The appellant met with Mr. Rachlin on December 4,
    2003.  In a letter to the appellant dated
    December 19, 2003, Mr. Rachlin summarized their initial meeting and confirmed
    the appellants understanding of the errors made by the respondent as related
    to her by Dr. Weinberg.  Mr Rachlin went
    on to explain, however, that the Canadian Medical Protective Association
    fights all malpractice cases extremely hard.  That means that, except in the clearest cases, medical malpractice
    litigation is protracted and expensive.  For this reason, Mr. Rachlin did not recommend initiating a lawsuit
    without obtaining additional information.  In order to decide whether a lawsuit was warranted, he advised that the
    appellant should obtain a complete copy of her medical charts as well as an
    expert opinion from a qualified plastic surgeon as to whether the respondent
    had breached the standard of care.

[9]

On December 19, 2003, Mr. Rachlin also wrote a letter
    to the respondent requesting a copy of the appellants chart.  On or around that date, he spoke with Dr.
    Weinberg by telephone.  In his affidavit
    filed on the motion for summary judgment, Mr. Rachlin states that, during the
    course of this conversation, Dr. Weinberg informed him that he could not give
    an opinion or a preliminary view as to whether Dr. Anderson met the standard of
    care without reviewing Ms. Lawless chart.  This information was later confirmed in a May 10, 2004 letter from Dr.
    Weinberg to Mr. Rachlin, in which he stated that he was unable to provide an
    opinion as to the medical standards of care at this time due to the fact that I
    have not been able to review the patients medical file.

[10]

Mr. Rachlin experienced significant difficulty in
    obtaining the appellants charts from the clinic.  This culminated in a court order dated May 5,
    2004, requiring the clinic to produce the charts.  Upon receiving these, Mr. Rachlin sent them
    to Dr. Weinberg under cover of a letter dated June 24, 2004, headed extremely
    urgent, in which he requested a preliminary opinion as soon as possible. Dr.
    Weinberg responded by email on July 22, 2004, stating I have reviewed the
    chart of L. Lawless.  I dont believe
    that the consent was informed and the result was below acceptable medical
    standards.  My full report is to follow.

[11]

Upon receipt of the e-mail, Mr. Rachlin did not issue
    the claim.  In cross-examination on his
    affidavit, Mr. Rachlin explained that he did not consider this e-mail to be
    sufficient to found litigation because it was not a written report.  The conclusion he had reached was that it
    was not in the clients interest or reasonable for me to commence litigation
    until I had, or recommend to the client that she instruct me to commence
    litigation, until I had the opinion from a suitably qualified expert in a form
    that would be admissible under the
Evidence
    Act
and the
Rules of Civil Procedure
that said that the doctor had done something wrong because of the subjective
    nature of cosmetic surgical procedures.

[12]

Dr. Weinberg ultimately declined to provide an expert report
    and suggested that someone with greater experience with the type of procedure
    performed on the appellant be retained.  Mr. Rachlin retained Dr. Frank Lista who, on June 6, 2005, provided a report
    stating that the respondent had fallen below the standard of care in performing
    the surgery.  The appellant issued her
    statement of claim on June 24, 2005.  The
    LaFontaine-Rish Medical Group Ltd. was noted in default.

[13]

The respondent then brought a motion for summary
    judgment on the basis that the appellant had discovered her claim prior to
    January 1, 2004, and as a result, the one year limitation period established in
    s. 89(1) of the
Health Professions
    Procedural Code
, S.O. 1991,
c
. 18, Sched.
2,
had expired.  The
    parties agree that, if the claim was discovered prior January 1, 2004, the
    limitation in the
Health Professions
    Procedural Code
applies and the claim issued June 24, 2005 is
    statute-barred.  If the claim was
    discovered after December 31, 2003, the two year limitation period set out in
    the
Limitations Act, 2002
applies and
    the claim was issued in time.

[14]

At the motion, the appellant took the position that the
    claim was not discovered until she received the written opinion from Dr. Lista
    on June 6, 2005, and therefore the claim was issued well within the statutory time
    period.

[15]

The motion judge concluded that the appellant had
    knowledge of all of the material facts necessary to discover her claim prior to
    January 1, 2004.  Because the claim was
    issued over a year later, he allowed the respondents motion and dismissed the
    claim.

Position of the appellant on appeal

[16]

On appeal, the appellant argues that the motion judge
    erred in concluding that the appellant knew all of the material facts necessary
    to make her claim prior to January 1, 2004.  It is apparent from the reasons that this conclusion is based on his
    having found that, in her meeting with Dr. Weinberg, the appellant was provided
    with all the information needed in order to discover her claim.  In the appellants view, however, this finding
    ignored or misunderstood the evidence in Mr. Rachlins affidavit that Dr.
    Weinberg advised him that he could not give an opinion or a preliminary view
    without reviewing the charts.

[17]

In support of her allegation, the appellant notes that
    in his reasons, the motion judge indicates that Dr. Weinberg said he could not
    provide a formal opinion until he had reviewed the charts.  The appellant argues that this is inaccurate,
    as it makes no reference to Dr. Weinberg not being prepared to give even a
    preliminary view on the standard of care.  In the appellants submission, this error goes to the core of the
    discoverability issue.  In order to know
    that she had a claim, the appellant needed to know that there was an arguable
    case that the respondent had breached the standard of care.

[18]

On appeal, the appellant no longer argues that the
    limitation period did not begin to run until the written opinion of Dr. Lista was
    obtained.  However, she maintains that
    the limitation period only began to run when she received the email from Dr.
    Weinberg on July 22, 2004, in which he gave the preliminary opinion sought by
    Mr. Rachlin.

[19]

In oral argument, counsel essentially summarized the
    appellants position as follows:

1)

in his conversation with Mr. Rachlin, Dr. Weinberg
    qualified any opinion or advice that he had given to the appellant orally at
    their November 20 meeting; and

2)

the
appellant needed to get
    access to her  medical records in order
    to obtain the medical opinion, which was necessary to discover her claim.

[20]

For the reasons that follow, I would dismiss the
    appeal.

ANALYSIS

The case law dealing with discoverability

[21]

The
    appellants position can best be summarized by the statement in her factum that,
    The missing link for discoverability was a medical opinion based on the
    patient charts.  In my view, this
    misinterprets the case law.  On the facts
    of this case, the appellant had knowledge of the material facts on which the
    claim was based following her meeting with Dr. Weinberg.  The case law does not provide that obtaining the
    patient charts and a medical opinion are necessary to discover a claim where
    the charts and medical opinion add nothing of significance to the plaintiffs knowledge.

[22]

The
    principle of discoverability provides that a cause of action arises for the
    purposes of a limitation period when the material facts on which it is based
    have been discovered, or ought to have been discovered, by the plaintiff by the
    exercise of reasonable diligence.  This
    principle conforms with the generally accepted definition of the term cause of
    action  the fact or facts which give a person a right to judicial redress or
    relief against another:
Aguonie v.
    Galion Solid Waste Material Inc
. (1998), 38 O.R. (3d) 161 (C.A.), at p.
    170.

[23]

Determining
    whether a person has discovered a claim is a fact-based analysis.  The question to be posed is whether the prospective
    plaintiff knows enough facts on which to base an allegation of negligence
    against the defendant.  If the plaintiff does,
    then the claim has been discovered, and the limitation begins to run: see
Soper v. Southcott
(1998), 39 O.R. (3d)
    737 (C.A.) and
McSween v. Louis
(2000),
    132 O.A.C. 304 (C.A.).

[24]

In
    some medical malpractice cases, however, it has been recognized that in order
    to discover that they have a claim, plaintiffs may require advice from a person
    who is medically trained.  Similarly, in
    some cases, plaintiffs will require access to their medical records and charts in
    order to become apprised of the facts necessary to discover their claim.

[25]

When
    dealing with cosmetic surgery, as in the present case, the outcome of the
    surgery will often be subjective.  For
    any number of reasons, the patient may be unhappy with the result, but will not
    know whether the unsatisfactory outcome may be the result of negligence rather
    than an unfortunate, but non-negligent outcome.  This is well illustrated by the case of
Patterson v. Anderson
(2004), 72 O.R. (3d) 330 (S.C.).  In that case, a 71 year-old had liposuction
    surgery in order to improve the appearance of her knees and thighs.  After the operation, she suffered pain and
    was dissatisfied with the appearance of her legs.  She consulted various doctors and complained
    to the College of Physicians and Surgeons of Ontario.  However, it was only when she received the
    decision of the College resulting from her complaint that the plaintiff
    discovered the facts needed to issue a claim in negligence.  As Speyer J. explained at para. 25:

[I]t
    is not until the plaintiff receives the CPSO report that she realizes two
    things.  First, she may not have been an
    appropriate candidate for the procedure.  Second, an inappropriate instrument may have been used during the course
    of the surgery.  Both these matters are
    directly related to Dr. Anderson.  It is
    now the basis of the allegations of negligence contained in para.
11 of the Statement of Claim.

[26]

In
Patterson
, the plaintiff needed the
    medical information contained in the CPSO discipline decision to discover that
    she may have been an inappropriate candidate and that an unsuitable instrument
     an inappropriately sized canula  may have been used.  These two facts were not known to the
    plaintiff until revealed to her in the report from the college, and they would not
    have been obvious to a lay person.  These
    two facts do not appear to have been communicated to Ms. Patterson by any of
    the doctors who she had previously consulted as a result of the pain in her legs.  As noted by the trial judge, the specific factual
    allegations disclosed in the report were simply unknown to the plaintiff prior
    to the receipt of the report.  As these factual
    allegations formed the core of her claim of substandard medical treatment, the
    limitation period did not begin to run until their discovery.

[27]

The
    need to obtain medical records in order to discover the facts necessary to make
    a claim is well illustrated in
Urquhart et
    al. v. Jacklin et al.
(1999), 124 O.A.C. 11 (C.A.).  In that case, the plaintiff had been
    diagnosed with breast cancer and the issue was whether the defendant physician
    had failed to interpret a mammogram conducted a year prior correctly.  Absent access to her chart, including a copy
    of the mammogram, and the advice of a radiologist as to whether the mammogram disclosed
    the presence of the cancer, the plaintiff could not know whether she could
    allege that the doctor was negligent in failing to detect the presence of the
    cancer.

[28]

While
    courts speak of the need to obtain a medical opinion or the need to have access
    to the medical records, these are not required in all cases: see
McSween v. Louis
.  Moreover, a formal written medical opinion is
    not required  what a prospective plaintiff must know are the
material facts
necessary to make a claim,
    whatever form they come in.  This point was
    well expressed in
Gaudet et al v. Levy et
    al
. (1984), 47 O.R. (2d) 577 (H.C.J.), at p. 582:

It
    is a question of fact as to when the information developed by his solicitor or
    by himself has reached the stage that a reasonably prudent person,
with

appropriate
    access to medical knowledge
(appropriate in the sense of that which could
    be discovered by a reasonably prudent solicitor, or plaintiff following a
    reasonably diligent investigation) would have determined that he
had prima facie grounds for inferring that
    his doctor had been negligent
or had engaged in malpractice upon him.
    [Emphasis added]

The appellants knowledge of the material
    facts

[29]

In
    the present case, the appellant had access to Dr. Weinberg, a medical expert.  By the end of her meeting with him, the
    appellant knew all of the material facts required to discover her claim.

(a)
She
    knew that she had suffered injury.  As a
    result of the operation, she had excess skin that dangled under her breast, the
    implants touched in the middle of her chest, and one of her nipples was
    incorrectly placed on the implant.  Dr.
    Weinberg commented that she was deformed and disfigured as a result of the
    operation.

(b)
She knew the errors made by the
    respondent.  He had placed the implants
    under the chest muscle, rather than over it, he had used the wrong kind of
    implant and he ought to have carried out a mastoplexy at the same time as the
    breast augmentation procedure.

(c)
She
    knew that she would need corrective surgery or face permanent disfigurement.

(d)
She knew that she should report the
    respondent to the College of Physicians and Surgeons of Ontario because of the
    treatment she received and that she should consult a lawyer.

[30]

It
    was clear to the appellant at this point that she had suffered more than an
    unfortunate and unsatisfactory outcome.  She was aware of what was wrong, why it was wrong, what would have to be
    done to correct it and who was responsible.  In other words, the appellant had all of the material facts necessary to
    determine that she had
prima facie
grounds for inferring that the respondent had been negligent.

[31]

The
    delay by the respondent and the clinic in providing the appellant with her
    clinical records cannot be condoned.  However, these medical records, the preliminary opinion provided by Dr.
    Weinberg in his email dated July 22, 2004 and the formal written opinion
    provided by Dr. Lista contained no new material facts.  In fact, they only served to confirm the essential
    information the appellant received in November 2003, when she met with Dr.
    Weinberg.  In her cross-examination, the
    appellant confirmed that Dr. Lista provided virtually the same information that
    she had received from Dr. Weinberg.  Dr. Lista
    added only that a new type of implant could also have been used, which merely
    supported Dr. Weinbergs previous advice that the improper type of implant had
    been used by the respondent.

[32]

A
    review of the statement of claim leads to the same conclusion.  All of the essential facts pleaded in the
    statement of claim were known to the appellant as a result of her meeting with
    Dr. Weinberg.

Dr. Weinbergs statement that he would not
    provide an opinion

[33]

The
    appellant made much of the fact that Dr. Weinberg told Mr. Rachlin that he
    would not provide him with his medical opinion, even a preliminary one, as to
    the respondents failure to meet the standard of care, without first reviewing
    the appellants medical records.  However,
    Mr. Rachlin did not indicate why Dr. Weinberg wanted to review these records
    prior to providing his opinion.  Dr.
    Weinberg did not file an affidavit and was not cross-examined.

[34]

Given
    the information that Dr. Weinberg had already conveyed to the appellant, his
    reluctance to provide the appellants solicitor with an opinion, even a
    preliminary opinion, regarding the negligence of a fellow doctor does not, in
    my view, delay the start of the limitation period.

[35]

The
    appellant characterizes Dr. Weinbergs refusal to provide Mr. Rachlin with an
    opinion, even a preliminary one, as a qualification of his opinion.  I disagree with this characterization.  As the appellant testified in her
    cross-examination on discovery, her meeting with Dr. Weinberg was etched in my
    brain.  Nothing in the record, including
    Mr. Rachlins affidavit, suggests that Dr. Weinberg corrected, qualified or
    withdrew any statements he made to the appellant, nor is it suggested that he
    had changed his view that a complaint to the College of Physicians and Surgeons
    of Ontario against the respondent was warranted and that the appellant ought to
    consult a lawyer.  Further, Mr. Rachlins
    letter to the appellant dated December 19, 2003 confirms, without
    qualification, much of what Dr. Weinberg told the appellant.

[36]

What
    the record does reveal is that Mr. Rachlin was seeking a written medical
    opinion in a form that could be filed in court.  In his view, an opinion was necessary before proceeding with a claim, in
    order to rebut any future motion brought by the respondent to dismiss the
    claim.  As Mr. Rachlin explained to the
    appellant, he expected the Canadian Medical Protective Association to
    vigorously defend the claim and to bring a motion to dismiss the claim if the
    appellant did not have a medical opinion.  This, however, confuses the issue of when a claim is discovered with the
    process of assembling the necessary evidentiary support to make the claim winnable.  To discover a claim, the plaintiff need only
    have in her possession sufficient facts upon which she could allege
    negligence.  Additional information will
    support the claim and help to assess the risk of proceeding, but is not needed
    to discover the claim.  As this court stated
    in
McSween
, at para. 19:

To
    say that a plaintiff must know the precise cause of her injury before the
    limitation period starts to run, in my view places the bar too high.
Both the
one year
    limitation period itself, as well as the production and discovery process and
    obtaining expert reports after acquiring knowledge through that process, are
    litigation procedures commonly used by a plaintiff to learn the details of how
    the injury was caused, or even about the existence of other possible causes and
    other potential defendants.  In order to
    come within s. 17 of the [
Health Disciplines
    Act
], it is sufficient if the plaintiff knows enough facts to base her
allegation
of negligence against the
    defendant. [Emphasis added]

[37]

Finally,
    I would not give effect to the appellants submission that the motion judges
    reference to Dr. Weinberg having advised that he could not provide a formal
    opinion shows that the motion judge misapprehended the evidence and led him to
    the wrong result.  It is apparent from a
    reading of the reasons as a whole that this error played no role in the motion
    judges conclusion.  He found that a
    medical opinion simply would serve as evidence in support of her claim, not as
    the disclosure of necessary facts to ascertain whether she had a claim against
    Dr. Anderson.  In other words, the
    motion judge properly concluded that, on this record, the medical opinion being
    sought by Mr. Rachlin, formal or preliminary, was not required given the
    appellants knowledge of the material facts.

CONCLUSION

[38]

As
    a result, I see no basis to interfere with the motion judges finding that the
    appellant knew the material facts upon which negligence is alleged against the
    respondent no later than December 19, 2003.  The claim is therefore statute-barred and I would dismiss the appeal.

[39]

I would award the respondent $5,100 in costs, inclusive
    of disbursements and applicable taxes.

Paul Rouleau J.A.

I agree K. Weiler
    J.A.

I agree R.A. Blair
    J.A.

RELEASED:  February 8,
    2011


CITATION:
Leek v.
Vaidyanathan
, 2011 ONCA 101

DATE: 20110204

DOCKET: C52443

COURT OF APPEAL FOR ONTARIO

Weiler, Blair and Epstein JJ.A.

BETWEEN:

Penny
          Leek, Lauren Leek by her Litigation Guardian Penny Leek,  and George Zafiris by his Litigation Guardian
          Penny Leek

Respondents/Plaintiffs

and

Sankar
          Vaidyanathan
, Humber River Regional Hospital,  Rueben Devlin, Patrick Safieh and David
          Starr

Appellant
/Defendant

Cynthia Kuehl and Stuart Zacharias, for the appellant

Paul Harte for the respondents

Heard:
January 11, 2011

On appeal from the order and declaration of Justice E.P.
          Belobaba of the Superior Court of Justice, dated June 28, 2010.

COSTS ENDORSEMENT

[1]

This
    endorsement relates to the costs of the appeal in this matter heard on January
    11, 2011, and allowed by way of endorsement released on January 20, 2011.  We inadvertently omitted to deal with the
    issue of costs in that endorsement.

[2]

Having
    considered the draft bills of costs submitted and the oral submissions made, we
    fix the costs of the appeal and of the application below at $10,500 inclusive
    of disbursements and all applicable taxes, payable by the respondents to the
    appellant.

K.
    Weiler J.A.

R.A.
    Blair J.A.

G.J.
    Epstein J.A.