COURT OF APPEAL FOR ONTARIO

CITATION: Earhart v. Canada (Attorney General), 2018 ONCA 67

DATE: 20180125

DOCKET: C62584, C63325

Doherty, LaForme and Paciocco JJ.A.

BETWEEN

Donald Earhart

Appellant

and

The Attorney General of Canada

Respondent

Ian B. Kasper, for the appellant

Sanam Goudarzi and Korinda McLaine, for the respondent

Heard:  January 15, 2018

On appeal from the order of Justice Tranmer of the Superior
    Court of Justice, dated August 25, 2015, dismissing an application for
habeas
    corpus
.

REASONS FOR DECISION

[1]

This appeal was heard with the appeal in
R. v. Wong
(C63325).
    Like that appeal, this appeal is moot.

[2]

The appellant is serving a life sentence for first degree
    murder. In April 2015, he was reclassified from medium to maximum security. In
    June 2015, he was ordered transferred to a penitentiary outside of Ontario. He challenged
    both decisions by way of
habeas corpus
. His
application was dismissed in August 2015. A year
    later, in August 2016, this court, on consent, extended the time for filing a Notice
    of Appeal to August 26, 2016 and the appellant commenced this appeal.

[3]

Unbeknownst to counsel at the time of the application for an extension
    of time, the appellant had been transferred from maximum security back to
    medium security in June 2016. The appeal was moot when the extension was sought
    and granted. There can be no doubt that had the court been aware that the
    appellant had been transferred back to medium security, it would not have
    granted an extension of time to appeal.

[4]

The appellant remained in medium security from June 2016 to
    June 2017. In June 2017, he was transferred to the segregation unit at a different
    institution. In August 2017, he was ordered transferred to a different
    penitentiary outside of the province. In August 2017, the appellant commenced a
    new
habeas corpus
application
    challenging, both the transfer to segregation and the transfer to the
    penitentiary outside of Ontario. That application is to be heard in April of
    this year.

[5]

The appellant seeks to
    raise the same issues pertaining to s. 27 of the
Corrections and
    Conditional Release Act
, S.C. 1992, c.
    20 as are raised in
R. v. Wong
. In one respect, the appellant has a stronger case for the court
    hearing his appeal, despite its mootness, than does the appellant, Wong. The
    arguments raised on appeal, particularly as they relate to s. 27(3) of the Act,
    were raised, to some extent, before the application judge. He addressed those
    arguments in his reasons. The application judge purported to apply
Khela
. The appellant submits that the application judge
    misapplied
Khela
.

[6]

We are satisfied that we should not hear
    this appeal on its merits. As counsels oral argument made clear, any attempt
    to elucidate the principles identified in
Khela
drives one inevitably back to the specifics of the
    particular case. The specifics of the case as presented to the application
    judge are now irrelevant to the lawfulness of the appellants present detention.
    The lawfulness of that detention depends on the application of the
Khela
principles to the specifics of the appellants
    current detention. Consequently, the current
habeas corpus
proceeding is the preferable forum in which to
    address the application of the principles set down in
Khela
to the appellants claim that his detention is
    unlawful.

[7]

The appeal is dismissed as moot.

Doherty J.A.

H.S. LaForme J.A.

David M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: El-Khodr v. Lackie, 2018 ONCA 66

DATE: 20180125

DOCKET: M48484 (C60918)

Doherty, MacFarland and Rouleau JJ.A.

BETWEEN

Kossay El-Khodr

Plaintiff (Respondent/ Moving Party)

and

Raymond C. Lackie, John MacPhail, ATS Andlauer
    Transportation Services GP Inc. and Trailcon Leasing Inc.

Defendants (Appellants/ Responding Parties)

Joseph Y. Obagi and Elizabeth A. Quigley, for the moving
    party

Barry A. Percival, Q.C. and James W. Gibson, for the responding
    parties

Heard in writing

REASONS FOR DECISION

[1]

By way of a motion in writing, the moving party
    seeks an order:

(i)

withdrawing the reasons for decision in this
    appeal dated September 19, 2017 (reported at 2017 ONCA 716);

(ii)

granting a rehearing of the within
    appeal before the same five-judge panel which has recently been approved to
    hear appeals in
Carroll v. McEwen
(C62293);
Cadieux
    v. Cloutier
(C63160) and
Persad v. Silva
(C62935);

(iii)

in the alternative, a stay of the decision
    rendered in this appeal, pending determination in the appeal in the new trilogy
    of cases to be scheduled before a five-judge panel which has been convened to
    determine issues which are over-lapping in the within appeal; and

(iv)

such further and other relief as this Honourable
    Court may deem just.

[2]

The grounds upon which this motion is brought
    can be summarized as follows:

(i)

This court, in its ruling, effectively over-ruled
Bannon
    v. Hagerman Estate
(1998), 38 O.R. (3d) 659 (C.A.) and
    its progeny without notice to counsel that it intended to do so and where any
    such challenge could only and ought to have been heard by a five-judge panel;

(ii)

This court in its reasons addressed an
    entirely new issue, one not raised by either party, dealing with the trial
    judges treatment of the Ontario Drug Benefit Program and in so doing ignored
    relevant jurisprudence of this court in
Lurtz v. Duchesne
(2005) 194 O.A.C. 119 (Ont. C.A.).

[3]

This motion can be dealt with very briefly.

(1)

This Court did not Overrule
Bannon

[4]

A reading of this courts reasons, in particular
    paras. 55 through 61 thereof, call into question whether
Bannon
remains good law in Ontario, but nowhere in the reasons does this
    court overrule
Bannon
 as the moving partys
    materials suggest. In particular, at para. 72 of the reasons, we noted:

Bannon
may no longer be good law in
    this province; and significant changes have been made to the statutory scheme
    since
Bannon
was decided. I leave these
    questions for another day as I conclude, for the reasons expressed below, that
    the
Gilbert
case can be distinguished on its
    facts.

[5]

As the responding parties note in their factum
    filed on this motion:

The Reasons for Decision were based on new
    insurance legislation which came into force after the decision in
Bannon
    v. McNeely
was decided.
Bannon
was decided under a former statutory regime for the deduction of
    benefits (page 27 Court of Appeal Reasons in
El-Khodr v. Lackie
).

[6]

There simply can be no doubt that the issues of
    deductibility and/or assignment of past and future statutory accident benefits
    payments were front and center in this appeal and in the companion case of
Cobb
    v. Long
, 2017 ONCA 717, that was argued with this appeal.
    Similarly, and as noted in the quotation above, this courts decision in
Gilbert
    v. South
, 2015 ONCA 712, 127 O.R. (3d) 526 was not
    overruled by this decision; it was factually distinguished.

(2)

The Treatment of the Ontario Drug Benefit
    Program was not a new Issue

[7]

The issue of the Ontario Drug Benefit Program
    and its applicability was argued during the appeal. The trial judges treatment
    of the issue was the subject of a ruling made at trial after the point was
    argued before her.

[8]

In this court, the issue was squarely addressed
    by the moving party at paras. 66 through 70 of his factum filed in the appeal,
    and in paras. 32 through 35 of the responding parties factum filed in the
    appeal.

[9]

The issue of whether the liability insurer of
    the responding parties was entitled to an assignment of the moving partys
    entitlement to statutory accident benefits payments in relation to these
    expenses was directly before the court and was the subject of oral argument by
    both parties.

[10]

As noted, at para. 23 of the reasons, the moving
    party is not prejudiced in any way given that the jurys award compensated him
    fully for medical expenses both past and future to which he was entitled and no
    deduction nor any assignment of those benefits was made from the jurys verdict
    for the reasons stated.

[11]

Although we have addressed this motion on its merits, that fact
    should not be taken as any indication that this was a proper motion to be
    brought.  It was not.  The issues raised here, in their essence, were that the
    moving party was treated unfairly because the court decided matters that were
    not raised by the parties and without notice to them.  Such issues are properly
    the subject for a further appeal, and not a motion for reconsideration.  The
    right to reconsideration and/or withdrawal of the courts reasons is a narrow
    one.  It is only in rare circumstances and where it is in the interests of
    justice that a court, having decided a matter, will reconsider:
First Elgin
    Mills Development Inc. v. Romandale Farms Ltd.
, 2015 ONCA 54,
381
    D.L.R. (4th) 114,
at paras. 7 and 8.

[12]

The moving party has, in any event, filed a
    motion for leave to appeal to the Supreme Court of Canada.

[13]

For these reasons the motion is dismissed.

[14]

The responding parties shall have ten days from the release of these
    reasons to file brief submissions on the costs of this motion. The moving party
    shall have ten days thereafter to file brief responding submissions.

Doherty J.A.

J. MacFarland
    J.A.

Paul Rouleau
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Galati v. Galati, 2018 ONCA 93

DATE: 20180131

DOCKET: C64157

Simmons, Roberts and Nordheimer JJ.A.

BETWEEN

Graziano Anthony Galati

Applicant (Appellant)

and

Wendy Dale Galati

Respondent

Mary Ann Cummings, for the appellant

No one appearing for the respondent

Heard and released orally: January 17, 2018

On appeal from the Order of Justice R.  Wildman of the
    Superior Court of Justice (Family Court Branch), dated July 27, 2017.

REASONS FOR DECISION

[1]

At a hearing at which the appellant husband sought to proceed with an
    uncontested trial, the presiding judge severed the husbands divorce claim and
    made orders for substantive relief in favour of the wife.  The orders for
    substantive relief included a requirement that the husband make arrangements to
    have the husbands share of a pension divided at source and a conditional,
    alternative order for an extension of the limitation period under s. 7(3) of
    the
Family Law Act
.

[2]

At the time of the hearing, the wife had not filed an answer and may
    have been deemed, under an earlier order, to have been noted in default.  While
    it was open to the court to impose terms to attempt to secure the wifes
    participation before proceeding on an uncontested basis, it was not open to the
    court to grant substantive relief in favour of the wife that had not been
    sought.

[3]

The order dated July 27, 2017 is set aside and the matter is remitted to
    the court below to a different judge.  Costs of the appeal are to the appellant
    on a partial indemnity scale fixed in the amount of $7,500 inclusive of
    disbursements and applicable taxes.

Janet Simmons J.A.

L.B. Roberts J.A.

I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Grabarczyk v. 2198802 Ontario Limited, 2018 ONCA 47

DATE: 20180122

DOCKET: C63761

Simmons, Roberts and Nordheimer JJ.A.

BETWEEN

Robert Grabarczyk

Applicant

(Respondent in appeal)

and

2198802 Ontario Limited, Mohammad Reza Esmaeili
,

and AB Corporation

Respondents

(Appellants)

Julian Binavince, for the appellants

Jonathan Rosenstein, for the respondent

Heard and released orally: January 15, 2018

On appeal from the order of Justice Andra Pollak of the
    Superior Court of Justice, dated April 19, 2017.

REASONS FOR DECISION

[1]

The appellant, 2198802 Ontario Limited (the appellant), offered to
    purchase real property from the respondent under an offer that was accepted on
    October 10, 2015.  The offer stipulated that it was conditional on the
    appellant satisfying itself of certain matters and that unless the appellant
    gave notice in writing not later than 11:59 p.m. thirty (30) days after
    acceptance, that this condition is fulfilled, this Offer shall be null and void
    and the deposit shall be returned (the due diligence clause).  The 30 day
    period elapsed on November 9, 2015.  The appellant did not deliver notice in
    writing that the condition was satisfied by that date.  Nonetheless, the
    appellant submitted an Amendment to Agreement of Purchase and Sale to the
    respondent that was accepted on November 14, 2015.  The Amendment purported to
    delete the due diligence clause from the original agreement and to substitute
    an identically worded due diligence clause, save that sixty (60) was
    substituted for thirty (30).

[2]

The application judge concluded that even though the original agreement had
    become null and void, the amendment reflected an intention to create a new
    agreement incorporating all the terms of the original agreement, but modifying
    the original due diligence period from 30 days to 60 days from the date of
acceptance

of the original offer
.

[3]

While holding that there was a new agreement, the application judges interpretation
    treats it, in effect, as a resurrection of the original agreement.  This was an
    error.  The application judge failed to turn her mind to the distinction between
    resurrection of a prior agreement; creation of a new agreement; the parties
    intentions in that regard; and the parties intentions had they turned their
    minds to the fact that the original agreement had become null and void.

[4]

In our view, the record before us does not sufficiently address the
    parties intentions had they turned their mind to the fact that their original
    agreement had become null and void.  This lacuna creates an issue requiring an
    action rather than an application.

[5]

Accordingly, the appeal is allowed.  The application judges order is
    set aside and an order is substituted directing that the matter is to proceed
    by action, with the parties to deliver pleadings accordingly.   The costs of
    the appeal are to the appellants in the amount of $6,000 on a partial indemnity
    scale inclusive of disbursements and all applicable taxes.

Janet Simmons J.A.

L.B. Roberts J.A.

I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Iaboni Estate v. Iaboni, 2018 ONCA 48

DATE: 20180123

DOCKET: C63817

Strathy C.J.O. and Hourigan and Miller JJ.A.

BETWEEN

The Bank of Nova Scotia Trust Company, in its
    capacity as Estate Trustee, in the Estate of Linda Iaboni

Applicant

and

Carlo Iaboni
,
    Ferdinando Iaboni, Norma Moretto

Respondent (
Appellant
)

and

Carlo Iaboni,
Ferdinando
    Iaboni, Norma Moretto

Respondents (
Respondents
)

Alfred S. Schorr, for the appellant

Emilio Bisceglia and Hana Tariq, for the respondents

Heard: January 15, 2018

On appeal from the order of Justice Anne Mullins of the Superior
    Court of Justice, dated April 27, 2017.

REASONS FOR DECISION

[1]

This appeal arises from a long-running dispute between the appellant,
    Carlo Iaboni, and his two siblings, the respondents Ferdinando Iaboni and Norma
    Moretto. The subject of the dispute is the administration of the estates of
    their parents, the late Umberto and Lidia Iaboni. Carlo appeals an order
    striking out his notice of objection to a passing of accounts for the estate of
    Lidia. For the reasons set out below, the appeal is dismissed.

[2]

The background is this. After Umberto became incapable of managing his
    affairs, his wife Lidia managed his property pursuant to a power of attorney he
    had given her. After Lidia herself became incapable, the three children managed
    the property of both Umberto and Lidia pursuant to a power of attorney. In
    2008, Carlo resigned as attorney and the respondents continued to manage the property
    of their parents. When Umberto died in 2010, he left his estate to Lidia. After
    Lidia died in 2012, there was a dispute among the siblings over the
    administration of her estate and the Bank of Nova Scotia Trust Company (BNS)
    was appointed as estate trustee on March 6, 2013.

[3]

Prior to his mothers death, and prior to the appointment of BNS, Carlo
    had objected to the respondents management of their parents property and brought
    an action against the respondents in December 2010 alleging misappropriation of
    funds, seeking an accounting of transactions since he resigned as trustee for
    property in 2008, and seeking reinstatement as a trustee for property.

[4]

In October, 2011, there was a settlement between the three siblings,
    whereby they agreed to exchange an accounting of their mothers assets. The
    respondents provided an accounting, the appellant did not. The appellant took
    no steps to pursue the action and it was dismissed administratively for delay
    on May 15, 2013 and has never been reinstated.

[5]

In late 2015, BNS brought an application to pass accounts in the estate
    of Lidia. Carlo filed a notice of objection, on substantially the same grounds
    as founded his earlier action.

[6]

The respondents brought a motion to strike the notice of objection, on
    the grounds that the objection is without merit, is statute-barred, and
    constitutes an abuse of process. That motion was heard before Quinlan J. on
    June 30, 2016 together with a motion for directions brought by BNS, seeking direction
    on whether it was obligated to pursue the appellants allegations that the
    respondents had misappropriated assets of the estates.

[7]

The appellant did not appear at the hearing before Quinlan J. The motion
    to strike the notice of objection was granted, as well as the motion for
    passing of accounts. Those orders were later set aside on consent, however, and
    the motions to strike and to pass accounts were reheard before Mullins J. with
    the participation of Carlo.

[8]

At the hearing of the motion, Carlo consented to the passing of accounts
    from the time of the appointment of BNS, but not before. Mullins J. struck the
    notice of objection on three bases: (1) it was without merit, (2) it was an
    abuse of process for attempting to relitigate the subject matter of the
    appellants dismissed action; and (3) was time barred under the
Limitations
    Act
.

[9]

Carlo appeals the order of Mullins J., striking out the notice of
    objection.

[10]

We
    are not persuaded that the motions judge made any error. The appellant
    consented to the passing of accounts from the time of the appointment of BNS,
    and has not appealed that aspect of the order. Even if the appellant were able
    to identify errors with respect to the abuse of process and
Limitations Act
claims, the motions judges findings of fact on the merits are fatal to the
    appeal. She made findings that the appellant had not substantiated his
    suspicions with respect to the discharge of mortgage, the share certificate, or
    general dissipation of funds. She also found the evidence of the respondent
    Norma to be credible and reliable. Those findings are entitled to deference and
    are dispositive of the appeal.

Disposition

[11]

The
    appeal is dismissed. The respondents are entitled to costs of the appeal in the
    amount of $7,500, inclusive of disbursements and HST.

G.R. Strathy C.J.O.

C.W. Hourigan J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Kaymar Rehabilitation Inc. v. Champlain Community
    Care Access Centre, 2018 ONCA 76

DATE: 20180130

DOCKET: C63678

Pepall, Hourigan and Brown JJ.A.

BETWEEN

Kaymar Rehabilitation Inc.

Plaintiff

(Appellant)

and

Champlain Community Care Access Centre
,

Cota
    Comprehensive Rehabilitation and Mental Health

Services and Carefor
    Health & Community Services

Defendant

(Respondent in Appeal)

Monica Song and Scott McLean, for the appellant

Joel Richler, Robin Linley and Brittiny Rabinovitch, for
    the respondent

Heard: January 23, 2018

On appeal from the judgment of Justice Julianne A.
    Parfett of the Superior Court of Justice, dated March 22, 2017, with reasons
    reported at 2017 ONSC 1843, and the cost judgment dated June 6, 2017, with
    reasons reported at 2017 ONSC 3504.

REASONS FOR DECISION

A.

OVERVIEW

[1]

In late 2003, the respondent, Champlain
    Community Care Access Centre (Champlain), issued a request for proposals
    (RFP) for the provision of physiotherapy, occupational therapy, and social
    work services (the Therapy Services). Champlain intended to split the work
    between two service providers.

[2]

The RFP attracted four bidders, including the
    appellant, Kaymar Rehabilitation Inc. (Kaymar). In the result, Kaymar was not
    one of the two successful bidders.

[3]

In 2005, Kaymar commenced this action against
    Champlain and the two successful bidders, Cota Comprehensive Rehabilitation and
    Mental Health Services (COTA) and Carefor Health and Community Services
    (Carefor), formerly the Victorian Order of Nurses, Ottawa-Carleton Branch.

[4]

In December 2010, Polowin J. dismissed Kaymars
    action as against COTA and Carefor, following an eight-day summary judgment
    motion.

[5]

Kaymars action against Champlain proceeded to
    trial, which lasted 34 days, spread over 18 months (March, 2015 to September,
    2016). By judgment dated March 22, 2017, Parfett J. dismissed Kaymars action.
    By further judgment dated June 6, 2017, the trial judge awarded Champlain costs
    of $1,864,000.00, some of which were calculated on a substantial indemnity
    basis.

[6]

Kaymar appeals the dismissal of its action
    against Champlain and seeks leave to appeal the cost award.

B.

APPEAL OF THE DISMISSAL OF THE ACTION

The issue stated

[7]

At trial, Kaymar put in issue the entire 2003
    RFP process: the validity of the RFP documents; their interpretation; the
    manner in which Champlain conducted the process; and the qualifications of
    Carefor to submit a bid. The essence of Kaymars claim was that Champlain designed
    and administered the RFP process to unfairly favour Carefor.

[8]

The scope of Kaymars appeal is much narrower.
    Kaymar submits the trial judge made two reversible errors, which require setting
    aside her judgment: (i) the trial judge erred in interpreting the RFP documents
    in a way that entitled Champlain to expand the scope of a bidders qualifying
    experience to include those who lacked experience in providing Therapy
    Services; and (ii) she erred in holding that Carefor submitted a compliant bid.

The RFP documents

[9]

Assessing Kaymars grounds of appeal requires a
    brief description of the RFP documents and their terms.

[10]

The RFP tender package consisted of the main RFP
    document, together with a set of schedules. Schedule A was called the Data
    Sheet. The RFP documents used by Champlain were taken from templates prepared
    by the Ministry of Health (MOH), which were then modified by Champlain.

[11]

The RFP called for bids to provide Therapy
    Services. There was no dispute that at the time Carefor had no previous
    experience in providing Therapy Services.

[12]

The RFP required a bidder to submit its financial
    and experience information in accordance with the RFP Data Sheet and Schedule C
    of this RFP to demonstrate that it has the required experience and financial
    position. Section 1.3 of Schedule C described the General Experience
    requirements for bidders:

1.3(1) On the applicable form set
    out in this Schedule, the Respondent shall provide evidence that the Respondent
    itself has been actively engaged in the services as described in the Data Sheet
    [in] a community setting
or, if
    set out in the Data Sheet the required equivalent experience
, for not less than the amount of time and during the period set out
    in the RFP Data Sheet.

(2) For the purpose of assessing
    experience for this RFP Process only, services in a community setting means
    services provided in such locations as homes, schools, the workplace and CCAC
    clinics but excludes services provided in an institutional setting such as
    hospitals and long-term care facilities.

(3) If the CCAC intends, for the
    purpose of this RFP Process, to consider services provided in hospitals,
    long-term care facilities or similar institutional settings as equivalent
    experience to services in a community setting, this will be set out in the
    RFP Data Sheet. [Emphasis added]

[13]

Champlain customized the General Experience
    portion of the Data Sheet to describe experience equivalents as follows:

4.  Experience Equivalents

Three years delivering
professional
    services
in a community setting within the five years
    immediately prior to the Deadline for Submissions of Proposals. [Emphasis
    added]

[14]

The RFP and its Schedules did not define
    professional services. However, during the RFP process Champlain was asked by
    a bidder to define the term. Champlain responded:

Under the general experience
    requirement in the RFP Data Sheet, professional experience refers to experience
    providing health care services, in a community setting, through any of the
    recognized regulated health professionals in Ontario, other than
    physiotherapists, occupational therapists and social workers. For example,
    professional experience includes the provision of nursing or speech language
    pathology services in a community setting.

[15]

There was no dispute that at the time it
    submitted its bid, Carefor was providing professional services.

First ground of appeal

[16]

The trial judge found that it was appropriate
    for Champlain to use, as experience equivalents, experience in providing
    professional services.  As a result, she found that organizations, such as
    Carefor, with no prior experience providing Therapy Services were qualified
    under the terms of the RFP to submit bids. To the extent there were internal
    inconsistencies amongst some of the RFPs schedules because they referred only
    to Therapy Services and not to professional services, the trial judge interpreted
    s. 2.2 of the RFP  which established the priority amongst the RFP documents
    to give priority to information contained on the Data Sheet over that in the
    RFP and its other schedules.  Consequently, any conflicting language in the
    other schedules was to be read in light of, and modified to conform to, the Data
    Sheets stipulation that experience in professional services constituted
    experience equivalents qualifying a bidder to apply.

[17]

Kaymar submits the trial judges interpretation
    was unreasonable. It contends that s. 1.3(3) of Schedule C operated in priority
    to the Data Sheet, thereby restricting Champlain to only considering bids from
    applicants with experience in providing Therapy Services.

[18]

We see no merit in this submission. The trial
    judges interpretation was reasonable. Indeed, we agree with it. Section 2.2 of
    the RFP clearly gave priority to information contained in the Data Sheet over that
    in any other schedule. By its terms, s. 1.3(1) of Schedule C recognized that
    priority. It stated an applicant shall provide evidence that it had been
    actively engaged in the services as described in the Data Sheet [in] a
    community setting
or, if set out in the Data Sheet the required equivalent
    experience
The experience equivalents
    section of the Data Sheet opened the door to bids from applicants that had experience
    in providing professional services, even though they did not have experience
    in providing Therapy Services.

[19]

Moreover, the tendering relationship is one
    defined by contract, what the Supreme Court of Canada described as Contract A
    in
Martel Building Ltd. v. Canada
, 2000 SCC 60, [2000] 2 S.C.R. 806,
    at para. 76. As the trial judge properly concluded, at para. 109 of her
    reasons:

[T]he provision for experience equivalents was
    an express term of the 2003 therapies RFP.  Kaymar  and other bidders
    could have chosen not to bid if they were not prepared to accept the terms of
    the RFP.  By bidding, Kaymar effectively accepted that experience
    equivalents were a term of the RFP.

[20]

Accordingly, the trial judge reasonably
    interpreted the RFP, the Data Sheet, and the other Schedules when she concluded
    they permitted bids by applicants who had experience in providing professional
    services, but not Therapy Services. We therefore see no basis for appellate
    interference with her interpretation:
Sattva Capital Corp. v. Creston Moly
    Corp.
, 2014 SCC 53, [2014] 2 S.C.R. 633, at paras. 50 to 52.

Second ground of appeal

[21]

Kaymar submits the trial judge erred in failing
    to find that Carefors bid was non-compliant because it did not provide actual
    data on its experience providing Therapy Services. Kaymar argues that it was a
    fundamental requirement of the RFP documents that bidders be experienced
    providers of Therapy Services.

[22]

Champlain responds that Kaymars submission must
    stand or fall with its position on the RFPs use of professional services as
    permissible experience equivalents. If such use was permissible, then bidders
    were not limited to those with Therapy Services experience.

[23]

We accept Champlains submission. It follows
    logically from our earlier conclusion that the trial judge did not err in
    finding Champlain could broaden the experience equivalents in the RFP to
    encompass professional services. Accordingly, we see no error in the trial
    judges conclusion that organizations with no specific experience providing
    Therapy Services could apply.

Summary

[24]

For the reasons set out above, we dismiss
    Kaymars appeal from the trial judges judgment dismissing its action against
    Champlain.

C.

COSTS APPEAL

The issue stated

[25]

Kaymar commenced this action in April 2005. The
    trial started in March 2015, following a decade of pre-trial litigation. The
    trial continued for 34 days over a period of 18 months, ending in September
    2016.

[26]

Champlain sought costs of $2,834,880.91 on a
    substantial indemnity basis. Kaymar argued that nothing in its litigation
    conduct merited an award of substantial indemnity costs. It contended that the
    partial indemnity costs of $1,547,313.00 shown on Champlains bill of costs
    should be reduced for several reasons. The trial judge agreed with certain of
    the deductions proposed by Kaymar, but awarded Champlain all-in costs of
    $1,864,000.00, calculated on a partial indemnity basis up until the date of a May
    2014 offer to settle by Champlain, and thereafter on a substantial indemnity
    basis.

[27]

Kaymar seeks leave to appeal the cost award and,
    if leave is granted, a reduction of the award to $1,461,077.58.

Analysis

[28]

At the hearing, Champlains counsel candidly
    conceded that the trial judges award of substantial indemnity costs was not
    supportable by the reasons she gave. In light of that concession, it is open to
    us to approach afresh what would constitute a fair and reasonable award of
    costs.

[29]

Determining a fair and reasonable amount for the
    costs of an action following a trial requires a holistic consideration of the
    factors set out in rule 57.01(1), together with the history of the action.
    Kaymars action spanned almost a decade. The trial lasted 34 days. It was
    hard-fought litigation, with Kaymar challenging the fairness of numerous
    aspects of the RFP process. In its Amended Statement of Claim, Kaymar levelled
    a very serious allegation that Champlain had rigged the process for
    evaluation of responses to the 2003 RFP to ensure Kaymar would be wholly
    unsuccessful. The trial judge rejected all of Kaymars allegations that the RFP
    process was unfair.

[30]

Given the length of the proceeding, the serious
    nature of the allegations, the complexity of the issues, the length of the
    trial, and Champlains unqualified success at trial, we conclude that a fair and
    reasonable award of partial indemnity costs of the action to Champlain is
    $1,675,000.00, inclusive of disbursements and all applicable taxes.

D.

DISPOSITION

[31]

For the reasons set out above, we dismiss
    Kaymars appeal from the judgment dismissing its action. We grant Kaymar leave
    to appeal costs, set aside para. 1 of the costs judgment dated June 6, 2017,
    and substitute an order that Kaymar pay Champlain its costs of the action fixed
    at $1,675,000.00, inclusive of disbursements and all applicable taxes.

[32]

Kaymar shall pay Champlain its costs of this
    appeal fixed at $35,000.00, inclusive of disbursements and all applicable
    taxes.

S.E.
    Pepall J.A.
C.W. Hourigan J.A.
David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Lavie v. Lavie, 2018 ONCA 10

DATE: 20180110

DOCKET: C61548

Sharpe, Rouleau and Fairburn JJ.A.

BETWEEN

Kevin Lavie

Applicant (Appellant)

and

Tanya Lavie

Respondent (Respondent)

Kevin Lavie, acting in person

Christine A. Torry, for the respondent

Heard: November 2, 2017

On appeal from the judgment of Justice Steve A. Coroza of
    the Superior Court of Justice, dated October 5, 2015 with reasons reported at [2015]
    W.D.F.L. 6108.

Family law
    Divorce  Equalization and post-separation claims for money Spousal and child
    support  Underemployment.

Rouleau J.A.:

A.

OVERVIEW

[1]

The appellant, Kevin Lavie, appeals from the trial judges decision dealing
    with division of property, as well as spousal and child support following
    marriage breakdown. I would grant the appeal in part.

B.

FACTS

[2]

Kevin and Tanya Lavie began living together in 1998 and married in 2000.
    They separated in 2009.

[3]

The parties have two teenaged children born in 2001 and 2004. Following
    their separation, the parties agreed on joint custody with the children spending
    equal time with both parents.

[4]

Tanya worked as a teacher from 1998 to 2004. She left teaching after her
    second child was born. The parties agreed at that point that Tanya would not
    return to her teaching career so she could be more available to the children.
    In 2006, Tanya began operating Balls of Fun (BOF), a child play center. Based
    on the evidence of the expert evaluator, the trial judge determined Tanyas
    personal income from BOF to be $15,000 per year in 2009. She is the only
    shareholder of BOF and the evaluator estimated the value of her interest to be
    approximately $55,000.

[5]

Kevin worked as an editor for a television sports show from 1996-2012.
    He was terminated in 2012 and was given a severance payment in December 2012.
    He spent most of his career working nights up until September 2008, when he
    began working days. His income ranged from approximately $64,000 in 2009 to
    $140,000 in 2012, which sum included a substantial severance payment. The trial
    judge determined that Kevins appropriate income for 2012 was $77,923,
    excluding non-recurring income such as RSP and pension withdrawals.

[6]

In his judgment, the trial judge rejected Kevins position that he was
    entitled to an equalization payment of $64,915.97 and a post-separation
    adjustment payment of $52,669.16. Based on his assessment of the evidence, he
    concluded that Tanya was to make an equalization payment of $5,380.27 and that
    Kevin was to make a post-separation adjustment payment to Tanya of $1,440.

[7]

The trial judge also ordered Kevin to pay retroactive child and spousal
    support of $714 and $691 per month respectively commencing November 1, 2009.
    The amounts were adjusted annually based on Kevins actual income up until his
    termination at the end of 2012 and thereafter based on an imputed income of
    $70,000 per year.

[8]

With respect to Tanya, the trial judge declined to impute income equal
    to a teachers salary. Instead, based on the fact that the parties had agreed
    that Tanya should not return to teaching, he found that she was not
    intentionally underemployed. He therefore accepted the evaluators opinion that
    her estimated income at the time of separation was $15,000. The trial judge
    then adjusted that figure to $25,000 in 2011 and to $35,000 in 2012 and
    thereafter.

[9]

The judge ordered the set-off amount of child support and then added to
    this an amount of spousal support payable to Tanya to achieve equal net
    disposable incomes between the parties. This was reflected in the amount of
    support awarded. Given the uncertainty of Kevins employment prospects, the
    trial judge also provided that Kevin could seek to have the spousal support
    issue reconsidered in 2017 without the need to establish a material change in
    circumstances.

C.

ISSUES ON APPEAL

[10]

As
    at trial, Kevin represented himself on appeal. He raises over 20 grounds of
    appeal challenging virtually every aspect of the trial judges findings.
    Several grounds of appeal relate to how the trial judge conducted the hearing. This
    includes allegations that the trial judge failed to provide adequate assistance
    to Kevin as a self-represented litigant, made legal errors in several of his
    rulings, and treated Kevin unfairly in the proceeding.

[11]

Many
    other grounds relate to findings of fact made by the trial judge in determining
    the value of the parties assets and debts. Those assets and debts include the
    value of BOF, the value of Tanyas vehicle, the value of the shareholder loan
    owing to Tanya from BOF, and the responsibility for various bank and credit
    card debts.

[12]

In
    oral submissions, however, Kevin focused on three areas as follows:

1.

whether he received a fair hearing;

2.

the trial judges treatment of the BOF shareholder loan; and

3.

the trial judges imputation of income to him but not to Tanya.

I will address these issues in turn.

D.

ANALYSIS

(1)

The trial judges treatment of Kevin

[13]

From
    my review of the trial proceedings, I see no basis for concluding that Kevin
    was not afforded a fair hearing. The trial judge gave him considerable
    assistance as a self-represented party. At the outset of the hearing, the trial
    judge provided him with the Superior Court of Justice memorandum on trial procedures.
    The trial judge also provided regular assistance throughout the trial.

[14]

Kevin
    was given wide latitude in his presentation of evidence, his submissions, and in
    his cross-examinations of Tanya and her witnesses. He was not prevented from
    presenting any relevant evidence.  And in my view, the trial judge applied the
    same standards in assessing the evidence of both parties.

(2)

The value of the shareholder loan

[15]

Kevin
    also raised in oral submissions the trial judges failure to attribute any
    value to the outstanding $93,097 shareholder loan owed to Tanya by BOF. Kevin
    had listed this in his Net Family Property Statement. In his view, because the
    expert valued BOF at $55,000 using an earnings-based approach, it should
    logically follow that the shareholder loan qualifies as an asset of Tanyas
    over and above the earnings-based valuation.

[16]

I
    would dismiss this ground of appeal. The expert evidence at trial was that BOFs
    value to Tanya was $55,000 in total, which included the value of the
    shareholder loan. The expert explained that, given the amount of bank debt and
    the payment obligations of BOF for rent, employees, and the like, $55,000 was all
    that could be salvaged by Tanya if she sought to dispose of BOF. I would not
    interfere with the trial judges acceptance of this expert evidence.

(3)

Child and spousal support

[17]

Kevin
    also challenges both the child and spousal support orders. In his submission,
    the trial judge erred in imputing income to him when he was in fact unemployed,
    while imputing no additional income to Tanya. He argues that the trial judge
    ought to have found that Tanya was intentionally underemployed. Following that,
    he should have imputed income to her equal to a teachers salary in the range
    of $72,000 to $86,000 per year. Tanya held that position up until 2004 and remained
    qualified for it.

[18]

For
    her part, Tanya maintains that imputing  $70,000  in income to Kevin was not
    only reasonable, but inevitable given that he consented to imputing income to him
    in that amount. For her income, she supports the trial judges finding that no
    additional income should be imputed to her.

[19]

The
    trial judge rejected Kevins submission that income should be imputed to Tanya.
    He found that because Tanya was not intentionally underemployed, there was no
    basis to impute income to her. The trial judge explained that:

(1)

the
    opening of BOF in 2006 was a joint decision by the parties for the purpose of
    improving their family life; and

(2)

the
    advantage to the parties of having Tanya operate BOF was that it allowed Tanya
    to be more flexible with the kids.

This, in the trial judges view, supported his
    conclusion that Tanya was not intentionally underemployed.

[20]

The
    trial judge also found that Kevin agreed to the setting up of BOF. He relied on
    Kevins evidence explaining that setting up BOF was worth the sacrifices the
    family would endure. Those sacrifices would allow them to build a business that
    would be good for the future of the family and provide opportunities for them to
    work together as BOF developed. In his testimony, Kevin explained that one reason
    to create BOF was because of concerns about the job prospects in his field. The
    couple thought of BOF as a business that both he and Tanya would work in
    together.

[21]

The
    trial judge then used the joint nature of the decision to establish BOF as
    support for the conclusion that no additional income should now be imputed to
    Tanya following marriage breakdown.

[22]

For
    the reasons that follow, I agree with Kevin that the trial judge erred in
    coming to this conclusion

(a)

Tanya was intentionally under-employed

[23]

Section
    19(1)(a) of the
Federal Child Support Guidelines
, SOR/97-175 permits
    the court to impute additional income where a spouse is intentionally
    underemployed:

19

(1)
The
    court may impute such amount of income to a spouse as it considers appropriate
    in the circumstances, which circumstances include the following:

(a)
the spouse is intentionally
    under-employed or unemployed, other than where the under-employment or
    unemployment is required by the needs of a child of the marriage or any child
    under the age of majority or by the reasonable educational or health needs of
    the spouse;

[24]

This
    section was discussed by the Court of Appeal in
Drygala v. Pauli
(2002), 61 O.R. (3d) 711 (Ont. C.A.). The trial judge referred to
Drygala
    v. Pauli
and correctly observed that in order to find intentional
    underemployment and impute income to a parent, there is no need to find a
    specific intent to evade child support obligations. He also noted that in order
    for parents to meet the legal obligation to support their children, they must
    earn what they are capable of earning.

[25]

Where
    the trial judge erred, in my view, was in concluding that Tanya was not
    intentionally underemployed. He based this conclusion the fact that opening BOF
    was a joint decision and was really for the purpose of improving their family
    life.

[26]

There
    is no requirement of bad faith or intention to evade support obligations
    inherent in intentional underemployment:
Drygala v. Pauli
, at paras. 24-37.
The reasons for
    underemployment are irrelevant. If a parent is earning less than she or he
    could be, he or she is intentionally underemployed. From the time she chose to
    start BOF and to earn $15,000 per year rather than the over $70,000 per year, Tanya
    would have earned returning to teaching, she was intentionally underemployed. There
    was also no basis on the record to find that Tanya could not resume her
    teaching career at the time of separation or at the time of trial. In fact, the
    trial judge found that her teaching career had not been compromised by her
    marriage or assumption of household responsibilities.

[27]

In
    my view, the trial judge erred by rejecting the contention that Tanya was
    intentionally under-employed.

[28]

Section
    19(1)(a) also provides that the court must consider if such intentional
    under-employment is
required
by the needs of a child of the marriage or
    any child under the age of majority or by the reasonable educational or health
    needs of the spouse [Emphasis added].

[29]

The
    trial judge found that the decision for Tanya to start BOF rather than to
    return to teaching was for the purpose of improving their family life, but
    that does not rise to the level of a requirement for the purpose of s. 19(1)(a).

[30]

The
    trial judge ought, therefore, to have concluded that s. 19(1)(a) was engaged in
    this case.

(b)

Income should be imputed to neither or both parties

[31]

Where
    s. 19(1)(a) is engaged, the court retains discretion to decide whether, and if
    so, how much, income to impute to the under-employed spouse.

[32]

Here
    too,
Drygala v. Pauli
provides guidance. When imputing income based on
    intentional under- employment or unemployment, a court must consider what is
    reasonable in the circumstances. The factors to be considered have been stated
    in a number of cases as age, education, experience, skills and health of the
    parent:  para. 45.

[33]

I
    acknowledge that the record supports the judges finding that Tanyas decision
    not to return to her teaching position and to work on building up BOF was made
    jointly by the parties. That alone, however, does not justify imputing $70,000
    in additional income to Kevin and no additional income to Tanya.

[34]

When
    the parties made the decision that Tanya would not return to teaching, Tanya
    had primary responsibility for the young children and the parties were
    maintaining a single combined household. Further, as Kevin testified, he was
    concerned about his ability to maintain his employment in his industry and
    considered BOF a possible way to provide for the whole family.

[35]

By
    the time of trial, the situation had changed. The parties were now maintaining
    two separate households with the additional total expenses that this entails. And,
    as found by the trial judge, the parties were now sharing parenting
    responsibilities equally such that the children could only directly benefit
    from Tanyas extra time at home while staying with her. For the other half of
    the time, they would benefit equally from Kevins ability to work fewer hours. It
    is also relevant that while Kevin may have chosen to support building a
    business from which he too could ultimately benefit, after separation, he could
    no longer benefit from the business growth.

[36]

Taking
    all of this into account, in my view it is appropriate to either impute
    additional income to both parties or to neither of them.

[37]

While
    Kevin was still employed, and given the appropriateness of a period of
    adjustment to allow Tanya time to reengage in teaching or some other more
    remunerative form of employment, I would impute no additional income to Tanya. I
    would, therefore, leave the trial judges support order for this period intact.

[38]

However,
    once Kevin became
unintentionally
unemployed, it was not appropriate
    to impute to him his former full salary while at the same time imputing no
    additional income to Tanya.  For the period from January 1, 2013, I would
    impute income of $70,000 to both parties such that they are deemed to be
    earning the same amount. In this way, neither party owes the other spousal or
    child support.

[39]

In
    the result, I would vary the judgment to provide that as of January 1, 2013 there
    is no spousal or child support owing by either party. I would also modify the
    provision that Kevin can bring a review of spousal support after October 5,
    2017 to provide that either party may bring a review of spousal or child
    support based on any relevant change in circumstances since trial. The parties
    need not meet the threshold of a material change in circumstances. A qualifying
    change would include that either party now has a stronger claim for child or
    spousal support based on bona fide but unsuccessful efforts to secure
    employment income beyond that earned at trial.

E.

ADDITIONAL GROUNDS OF APPEAL

[40]

Kevin
    raises a number of additional grounds of appeal. These are based on the trial
    judges factual findings, are entitled to deference, and I see no reason to
    intervene. I would therefore dismiss the balance of the grounds of appeal.

F.

FRESH EVIDENCE

[41]

Both
    Tanya and Kevin have tendered proposed fresh evidence. In my view, the fresh
    evidence would not have affected the outcome of the trial. To the extent that
    it involves changes in circumstances since the trial, the fresh evidence is best
    considered in a future motion to vary the support obligations. As noted, the
    trial judge specifically contemplated that a review may be appropriate any time
    from October 2017 onward.

G.

CONCLUSION

[42]

In
    conclusion, I would allow the appeal in part to vary the child and spousal support
    obligations. I would reduce both spousal and child support to zero as of
    January 1, 2013 and adjust the amount of the arrears ordered to reflect this
    decision. I would also amend the review provision in paragraph 14 of the order
    in the manner I have set out in these reasons. In the circumstances, I would
    make no award as to costs.

Paul Rouleau J.A.

I agree Robert J.
    Sharpe

I agree Fairburn
    J.A.

Released: January 10, 2018


COURT OF APPEAL FOR ONTARIO

CITATION: LePage (Re), 2018 ONCA 89

DATE: 20180131

DOCKET: C62811

Hoy A.C.J.O., MacPherson and Rouleau JJ.A.

BETWEEN

IN THE MATTER OF DENIS LUCIEN LEPAGE

AN APPEAL UNDER PART XX.1 OF THE CODE

Suzan E. Fraser, for the appellant

Christine Tier, for the respondent

Janice Blackburn, for the Person in Charge, Waypoint
    Centre for Mental Health Care

Heard and released orally:  January 25, 2018

On appeal against the disposition of the Ontario Review
    Board dated September 21, 2016.

REASONS FOR DECISION

[1]

The appellant, Denis LePage, appeals from a disposition of the Ontario
    Review Board dated September 21, 2016 (the Disposition). He is present and is
    represented by counsel today. The Disposition ordered that the appellant
    continue to be detained at the maximum security facility at Waypoint Centre for
    Mental Health Care.

[2]

It is clear there was a regrettable misunderstanding at the hearing
    before the Board leading to the disposition. The appellant has been under the
    auspices of the Board since 1978 and, consistent with his practice for many
    years, did not attend the hearing. The Board thought that Alvin Pollard was
    acting as counsel for the appellant and excused the appellant from attending
    his hearing. The Board also thought that Mr. Pollard consented on behalf of the
    appellant, as his counsel, to the recommendation of the Hospital and the Crown
    that the appellant remain detained in the Hospitals maximum security facility.
    However, Mr. Pollard understood he was
amicus
and did not appreciate
    the significance of the questions posed by the Board that led it to mistakenly
    conclude that he consented on behalf of the appellant, as his counsel, to the Hospital,
    and the Crowns recommendation. This misunderstanding is made clear in the
    fresh evidence, which is adduced on consent.

[3]

We agree with the appellant that this unfortunate misunderstanding
    resulted in a miscarriage of justice. While perhaps likely, it is necessarily
    speculative, that had the Board understood Mr. Pollard was
amicus
and
    did not consent to the recommendation of the Hospital and the Crown on behalf
    of the appellant, as his counsel, the Board would have proceeded with the
    disposition hearing in the appellants absence and reached the same
    disposition. In addition, we note that the effect of the misunderstanding was
    to nullify the appellants intended protest, through non-attendance, of the
    review process.

[4]

In its factum, the appellant sought an order for an independent
    assessment at a medium security facility. However, the parties have since
    agreed that at the appellants 2018 Board hearing, the Board should order an
    assessment at a different hospital and are in the process of discussing the
    terms of such an order.

[5]

The further order sought by the appellant in his factum, directing the
    Board to provide remedial training to the Board members about the role of
    counsel, is not warranted in this case of mutual misunderstanding. We do agree,
    however, with the appellant and the Hospital that this appeal demonstrates that
    it would be advisable for the Board to review its practices for the appointment
    of counsel and
amicus
. Further, in our view, the Board should confirm
    at the outset of each hearing whether counsel appears as counsel for the
    appellant or
amicus
to avoid future misunderstandings.

[6]

Accordingly, the appeal is allowed, the Disposition is set aside, the
    matter is referred back to the Board under s. 672.78(3)(b) of the
Criminal
    Code
, and the Board is directed that Mr. Pollard shall not serve as either
amicus
or counsel in respect of the appellant. This last relief is not
    opposed.

Alexandra Hoy
    A.C.J.O.

J.C. MacPherson J.A.

Paul Rouleau J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Lord v. Clearspring Spectrum Holdings L.P., 2018
    ONCA 38

DATE: 20180118

DOCKET: C63787

Doherty, Benotto and Miller JJ.A.

In
    The Matter Of Spectrum Health Care (GP) Inc.

And In The Matter Of
    Spectrum Health Care Employeeco Inc.

BETWEEN

Lori Lord

Applicant (Respondent in Appeal)

and

Clearspring
    Spectrum Holdings L.P. (As Successor in Interest to

Callisto
    Capital III L.P.) and Clearspring Capital Partners (US) L.P.

(Formerly
    Callisto Capital (US) III L.P.)

Respondents (Appellants)

Arthur Hamilton and Jed Blackburn, for the appellants

Robert Staley, Alan Gardner and William Burtolin for the
    respondents

Heard: December 18,
    2017

On appeal from the judgment of Justice Fred Myers of the
    Superior Court of Justice, dated April 12, 2017.

ENDORSEMENT RE COSTS

[1]

We have reviewed the written submissions on costs. The appellants shall
    pay the respondent her costs fixed in the amount of $30,000 inclusive of
    disbursements and HST.

Doherty J.A.

M.L. Benotto J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Marshall v. Marshall, 2018 ONCA 25

DATE: 20180112

DOCKET: C63598

Feldman, Pepall and Huscroft JJ.A.

BETWEEN

Frederick Robert Alan Marshall

Respondent

(Appellant in Appeal)

and

Kathleen Margaret Marshall

Applicant

(Respondent in Appeal)

Frederick Leitch, Q.C., for the appellant

Michelle Kropp, for the respondent

Heard and released orally: January 8, 2018

On appeal from the judgment of Justice Jonathon C. George
    of the Superior Court of Justice, dated January 18, 2017.

REASONS FOR DECISION

[1]

The appellant husband appeals from the decision of the trial judge with
    respect to the ownership of two Mexican condominiums which were purchased with
    funds contributed by both spouses.

[2]

The trial judge rejected the appellant husbands claim that he held
    title to the condominiums (through ownership of shares in a company) on
    resulting trust for the wife in respect of half their value. The resulting
    trust was claimed by the appellant husband because the value of the Mexican
    properties had apparently declined since the date of separation, so that it
    would be of financial benefit to him in the equalization calculation to have half
    the value at the date of separation attributable to the respondent wife. Although
    she contributed funds to purchase the properties, the wife rejected the claim
    that she held half on resulting trust.

[3]

In this case much evidence was led regarding the purchase of the Mexican
    properties, and the decisions regarding the rental and sale of the properties.
    The trial judge considered all the evidence, and effectively found, based on
    all the evidence, that the presumption of resulting trust had been rebutted. We
    see no basis to interfere with that decision.

[4]

The appeal is therefore dismissed, with costs of the appeal to the
    respondent, fixed at $11,500, inclusive of disbursements and HST.

K.
    Feldman J.A.

S.E.
    Pepall J.A.

Grant
    Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Midland Resources Holding Limited v. Shtaif, 2018
    ONCA 33

DATE: 20180115

DOCKET: M48334 (C58536)

Doherty, Brown and Roberts JJ.A.

BETWEEN

Midland Resources Holding Limited, Alex Shnaider and Eduard
    Shyfrin

Plaintiffs(Respondents)

and

Michael Shtaif
, The Estate of Anthony
    Groag,
Gregory Roberts
,
Eugene Bokserman
, Ilya Entin, Irwin Boock
    a.k.a. Irwin Krakowsky and Stanton De Freitas

Defendants (Appellants)

AND BETWEEN

Michael Shtaif,
Gregory
    Roberts
, Eugene Bokserman, and Ilya Entin

Plaintiffs by
    counterclaim (Appellant by counterclaim)

and

Midland Resources
    Holding Limited, Alex Shnaider and Eduard Shyfrin

Defendants by
    counterclaim (Respondents by counterclaim)

Michael Shtaif and Eugene Bokserman, in person

Symon Zucker, Kenneth Prehogan, Kim A. Mullin
    and Scott McGrath, for the respondents Midland Resources Holding Limited, Alex
    Shnaider and Eduard Shyfrin

Heard: In writing

REASONS FOR DECISION

[1]

By
reasons released April 20,
    2017 this court (i) dismissed the appeal by Eugene Bokserman of the US $1.5
    million judgment against him and (ii) allowed, in part, the appeals by Michael
    Shtaif and Gregory Roberts, reducing the judgments against them to US $8.27
    million  representing the damages the trial judge held were suffered by
    Midland Resources Holding Limited up until June 20, 2006  together with small
    amounts for post-June 20, 2006 damages:
Midland Resources Holding
    Limited v. Shtaif
, 2017 ONCA
    320, 135 O.R. (3d) 481.

[2]

Robertss application for leave to appeal to the Supreme Court of Canada
    was dismissed on December 21, 2017:
Gregory Roberts v. Midland Resources
    Holding Limited
, leave to appeal to SCC refused, 37653 (December 21,
    2017).

[3]

The appellants, Shtaif and
    Bokserman, were represented by counsel at the hearing of the appeal. They are
    now representing themselves.

[4]

Shtaif and Bokserman move under rule 59.06(2)(d) of the
Rules of
    Civil Procedure
for a reconsideration by this court of its decision to
    maintain awards of damages against them. Rule 59.06(2)(d) states: A party who
    seeks to  (d) obtain other relief than that originally awarded, may make a
    motion in the proceeding for the relief claimed.

[5]

The appellants do not seek a reconsideration on the basis of any fresh
    evidence.

[6]

Instead, they contend the trial judge miscalculated Midlands damages
    as at June 20, 2006 by only considering the accruing loss at that date, without
    considering the accruing gain which, they contend, flowed from the closing of
    the Reef Energy transaction after that date. They argue it was not fair or just
    for this court to rely on the trial judges miscalculation of damages in
    affirming the judgment in part.

[7]

Midland submits the appellants motion is not a proper use of r. 59.06(2)(d)
    and constitutes nothing more than an attempt to reargue an issue that was
    decided against the moving parties at trial and on appeal.

[8]

We agree the appellants motion must fail.

[9]

First, Shtaif and Bokserman are not simply pointing out a mathematical
    oversight in the trial judges damage calculation, as they contend; they are
    advancing a theory of damages not argued on the appeal. In their appeal factum,
    the appellants identified seven grounds of appeal, none of which involved a
    claim that the trial judge miscalculated Midlands damages as of June 20, 2006
    by failing to take into account any post-June 20, 2006 gain. Nor did their
    counsel raise the argument at the hearing.

[10]

Second,
    although the appellants did submit the trial judge erred in finding Midland
    acted reasonably to mitigate its damages contending, in part, that Midland did
    not act reasonably in its 2010 sale of Reef Energy, this court did not give
    effect to that ground of appeal.

[11]

Consequently,
    in those circumstances, r. 59.06(2)(d) offers no basis for this court to
    reconsider its decision.

[12]

The
    motion is dismissed. Shtaif and Bokserman shall pay Midland its costs of this
    motion fixed in the amount of $5,000, inclusive of disbursements and all
    applicable taxes.

Doherty J.A.
David Brown J.A.
L.B. Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Mohawks of the Bay of Quinte v. Brant, 2018 ONCA 82

DATE: 20180130

DOCKET: C63824

Laskin, Sharpe and Fairburn JJ.A.

BETWEEN

R. Donald Maracle, Chief of the Mohawks of the
    Bay of Quinte on behalf of The Tyendinaga Mohawk Council and all members of the
    Mohawks of the Bay of Quinte

Respondents (Plaintiffs)

and

Shawn Michael Brant, Ronald Leslie Brant,
Andrew Clifford Miracle (a.k.a. Sir Andrew C. Miracle and
    Andrew Clifford Miracle)
and Owistha Capital Corporation

Appellant (Defendant)

Andrew Clifford Miracle, in person

Roger Horst, for the respondents

Heard and released orally: January 25, 2018

On appeal from the order of Justice MacLeod-Beliveau of
    the Superior Court of Justice, dated April 25, 2017.

REASONS FOR DECISION

[1]

The appellant commenced by requesting an
    adjournment of the appeal because he wishes to be represented by counsel. He knew
    for months that he was without counsel and that the appeal, involving a narrow
    issue, was scheduled for today. His request for an adjournment was dismissed
    and we heard full argument on the appeal.

[2]

The appellant is a debtor. This is an appeal
    from the order of Justice MacLeod-Beliveau dated April 25, 2017, directing that
    ownership of the appellants motor home be transferred to the purchaser. It is
    not in dispute that the motor home has since been sold.

[3]

The appellant brings an application to file
    fresh evidence to show that: (a) he paid for a property in 1979; and (b) this
    matter should be transferred so that it can be heard by the Metis Clan Mother
    Ikway Michine.

[4]

We dismiss the application to file fresh
    evidence. We are not satisfied that, even if it were to be believed, the
    proposed evidence would have affected the result of this appeal. Moreover,
    there is no legal authority to transfer this matter as requested.

[5]

The appellant has not made submissions
    challenging the correctness of MacLeod-Beliveau J.s order, which is the
    subject of this appeal, but rather mounts a collateral attack on several prior
    and underlying orders.

[6]

We dismiss the motion to file fresh evidence.
    The appeal is dismissed.

[7]

Costs to the respondents in the amount of $8,800
    to be collected by the method provided in paras. 7, 8, 9, and 10 of the
    transfer order of Justice Tranmer of August 14, 2013 in these proceedings.

John
    Laskin J.A.

Robert
    J. Sharpe J.A.

Fairburn
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: North Elgin Centre Inc. v. McDonald's Restaurants
    of Canada Limited, 2018 ONCA 71

DATE: 20180129

DOCKET: C63933

Pepall, Hourigan and Brown JJ.A.

BETWEEN

North Elgin Centre Inc.

Applicant

(Respondent)

and

McDonalds Restaurants of Canada Limited

Respondent

(Appellant)

Ronald G. Slaght, Andrew Parley and Margaret Robbins,
    for the appellant

Martin P. Zarnett, for the respondent

Heard: January 22, 2018

On appeal from the judgment of Justice Jasmine T. Akbarali
    of the Superior Court of Justice, dated May 30, 2017 with reasons reported at
    2017 ONSC 3306.

REASONS FOR DECISION

[1]

The appellant, McDonalds Restaurants of Canada Ltd. (McDonalds) and
    the respondent, North Elgin Centre Inc. (North Elgin) brought applications to
    determine their respective rights under a commercial lease (the Lease).  The
    application judge found that the Lease came to an end on March 10, 2017 because
    McDonalds failed to comply with its renewal provision.

[2]

McDonalds appeals that order. For the reasons that follow, the appeal
    is allowed.

Background Facts

[3]

On March 11, 1997, McDonalds as tenant and North Elgin as landlord
    entered into the Lease, which was a twenty-year ground lease in respect of
    lands in Richmond Hill, Ontario upon which McDonalds has built and renovated a
    restaurant. The parties agreed the original term of the Lease would end on
    March 10, 2017.

[4]

The Lease includes an option to renew for two consecutive additional
    terms of ten years each.  There was no dispute that McDonalds gave proper
    notice of its intention to renew the Lease prior to the expiry of the original
    term. However, the application judge held that the renewal provision required
    McDonalds to do more than simply provide notice of its intention to renew. She
    found that because the parties had not agreed on a rental rate at least nine
    months before the end of the original term, McDonalds was obliged under the
    Lease to either refer the issue to arbitration or revoke its intention to renew.

[5]

McDonalds failed to take either action. The application judge found,
    therefore, that the Lease was uncertain as to a material term  the rental
    rate. As such, the parties were left without an enforceable agreement. She went
    on to find that because the parties were engaged in negotiations North Elgin
    waived its right to insist on strict compliance with the terms of the renewal
    provision. However, she also found that North Elgin later revoked its waiver and
    reverted to its strict legal rights. As a result, the application judge held
    the doctrine of waiver did not apply and the Lease was at an end. The
    application judge also found that relief from forfeiture was not available.

Issues

[6]

On appeal, McDonalds submits that the application judge erred in her
    analysis of the Lease, the revocation of the waiver, and the remedy of relief
    from forfeiture. McDonalds also submits that the application judge erred in
    failing to order North Elgin to pursue the necessary application for consent
    required under s. 50(3)(f) of the
Planning Act
,
R.S.O. 1990, c.
    P. 13, as required by the Lease to legally extend it beyond a twenty-one year
    term. It seeks an order for specific performance requiring North Elgin to do
    so.

Analysis

[7]

We are of the view that the appeal must be allowed on the ground that
    the application judge made a palpable and overriding error of mixed fact and
    law in her finding that North Elgin properly revoked its waiver.

[8]

The principle of waiver
    provides that if one party leads another party to believe that its strict legal
    rights under a contract will not be insisted upon, intending that the other
    party will act upon that belief and the other does so, then the first party may
    not afterwards insist on its strict legal rights when it would be inequitable
    to do so:
Petridis v. Shabinsky
, 35 O.R. (2d) 215 (H.C.), at
    para. 20.

[9]

We see no error in the application judges conclusion that North Elgin
    waived strict compliance with the renewal provision under the Lease. Where the
    application judge erred was in finding that the waiver had been revoked by
    North Elgin in an email to McDonalds dated August 31, 2016.

[10]

For
    the revocation of a waiver to be effective it must provide reasonable notice to
    the receiving party:
Petridis,
at para. 20.  To qualify as reasonable,
    the notice must make clear that the party who granted the waiver will insist
    upon the strict enforcement of its legal rights. The notice must also afford
    the opposite party an opportunity to cure any defect resulting from its
    reliance on the waiver.

[11]

In
    our view, the August 31, 2016 email does not clearly indicate that North Elgin
    would be insisting upon the strict enforcement of its legal rights. The email
    raises the issue of whether McDonalds intended to let the Lease expire or whether
    McDonalds wanted North Elgin to refer the rental rate issue to arbitration. There
    is no clear revocation of the waiver.

[12]

The
    August 31, 2016 email also does not provide McDonalds with a reasonable period
    to cure the breach of the Lease. In its next communication to McDonalds, North
    Elgin advised via a lawyers letter dated November 25, 2017, that it was of the
    view that the Lease would be at an end upon the expiry of the initial term. North
    Elgin also advised that if McDonalds did not agree with its position, it would
    bring an application to have a court declare the Lease to be at an end upon the
    expiry of the initial term. Therefore, no opportunity to cure the defect was
    provided to McDonalds.

[13]

In
    our view, based on the evidence before her, it was a palpable and overriding
    error of mixed fact and law for the application judge to find that the waiver
    had been revoked. Because the waiver has not been properly revoked, the issue
    of fair market rental rates shall be referred to arbitration.

[14]

With
    regard to McDonalds claim for an order requiring North Elgin to specifically
    perform its obligation to obtain a
Planning Act
consent, we note that
    the end of the 21
st
year under the Lease is fast approaching. We
    proposed to the parties in oral argument that the most sensible order would be
    one in which McDonalds was permitted to immediately bring an application for
    the consent, and North Elgin would provide all reasonable cooperation to obtain
    the consent. The parties were agreeable to that order, and it shall issue.

Disposition

[15]

The appeal is allowed. The orders below are set aside
    and an order will go as follows:

(i)

a declaration will be granted that the Lease has been renewed for the
    renewal term;

(ii)

McDonalds shall, within 30 days of the date of these reasons, refer  to
    arbitration, in accordance with Articles XV and XVII of the Lease, the issue of
    the fair market rental rate for the renewal term commencing on March 11, 2017;

(iii)

McDonalds shall, within 30 days of the date of these reasons, bring an
    application for the consent required under s. 50(3)(f) of the
Planning Act
and North Elgin shall provide all reasonable cooperation to obtain that
    consent;

(iv)

North Elgin shall pay to McDonalds its costs of the applications in
    the all-inclusive sum of $10,000; and

(v)

North Elgin shall pay to McDonalds its costs of the appeal in the
    all-inclusive sum of $15,000.

S.E. Pepall
    J.A.

C.W.
    Hourigan J.A.

David Brown
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Ontario (Provincial Police) v. Assessment Direct
    Inc., 2018 ONCA 78

DATE: 20180130

DOCKET: M48577, M48687 (C64473)

Doherty, LaForme and Paciocco JJ.A.

BETWEEN

The Ontario Provincial Police and Her Majesty the
    Queen

Applicants

and

Assessment Direct Inc., Universal Injury
    Rehabilitation Centre Inc., Osler Rehabilitation Centre Inc., Metro
    Rehabilitation Centre Inc., Rouge Valley Rehabilitation Centre Inc. and Publix
    Rehabilitation Centre Inc.

Respondents

John Patton, for the applicants

Richard Shekter and Karina Wong, for the respondents

Erin Dann, for the referee

Heard and released orally:  January 18, 2018

REASONS FOR DECISION

[1]

This is an appeal from an order of Nordheimer J. determining whether
    certain materials seized by the O.P.P. under a search warrant issued on the
Criminal
    Code
is subject to litigation privilege and therefore not potentially
    evidence in any criminal proceeding that might be undertaken. To this point in
    time, there have been no charges laid.

[2]

We note that in his order, Nordheimer J. made no declaratory order
    relating to the constitutionality of any statutory provision or any state
    conduct.

[3]

In our view, the order is properly characterized as affecting the
    enforcement or implementation of the search warrant. The search warrant is a
    judicial order made on an
ex parte
application brought under the
Criminal
    Code
pertaining to an ongoing criminal investigation. In our view, judicial
    orders that are directed at the enforcement or implementation of a criminal
    order are themselves criminal in nature.

[4]

No appeal lies to this court in a criminal proceeding under the
Courts
    of Justice Act
. The appeal must be quashed.

Doherty J.A.

H.S. LaForme J.A.

David M. Paciocco
    J.A.