COURT OF APPEAL FOR ONTARIO

CITATION: Wang v. Canada, 2018 ONCA 798

DATE: 20181003

DOCKET: C63889

Hourigan, Nordheimer and Harvison Young JJ.A.

BETWEEN

Zhenhua Wang and Chunxiang Yan

Applicants (Appellants)

and

Her Majesty the Queen in right of Canada, The
Minister of Public Safety and Emergency Preparedness, and the Canada Border
Services Agency

Respondents (Respondents)

Rocco Galati, for the appellants

James Todd and Nicholas Dodokin, for the respondents

Heard: September 24, 2018

On appeal from the judgment of Justice James Diamond of
the Superior Court of Justice dated May 15, 2017, with reasons reported at 2017
ONSC 2841.

Nordheimer J.A.:

[1]

The appellants appeal from the judgment of Diamond J., dated May 15, 2017
that dismissed their application for
habeas corpus
. The application
judge concluded that, because the applicants were not being held in custody,
they were not detained and therefore the writ of
habeas corpus
could
not apply. The following reasons explain why I have determined that the
application judge erred in his conclusion.

I: Background

[2]

The appellants are foreign nationals, possessing citizenship in China
and the Dominican Republic. They entered Canada as visitors on September 30,
2012 on visas they obtained from the Canadian Embassy in the Dominican
Republic. In August 2013, the appellants departed Canada after obtaining a
six-month extension to their visa. The appellants entered Canada again on November
30, 2013, after obtaining another Temporary Resident Visa on August 19, 2013
from the Canadian Embassy in the Dominican Republic.

[3]

In November 2013, the Canada Border Services Agency ("CBSA")
received information that the appellants had multiple identities and were
fugitives from China. The information alleged that the appellants entered into
a multi-level marketing and pyramid scheme in which they defrauded
approximately 60,000 people of approximately $180,000,000 Canadian.

[4]

On March 7, 2014, the appellants were arrested by the CBSA under s. 55
of
Immigration and Refugee Protection Act
, S.C. 2001, c. 27, and
detained for an admissibility hearing on the grounds of misrepresentation. On
May 26, 2014, the appellants were referred by the CBSA to the Immigration Division
of the Immigration and Refugee Board for their admissibility hearing, the
purpose of which was to determine whether they could remain in Canada. Before
their admissibility hearing began, the appellants made refugee claims on June
23, 2014, which led, by operation of law, to the withdrawal of the Minister's
request for an admissibility hearing.

[5]

The appellants' first detention review occurred on July 23, 2014. Over
the next 14 months, the appellants were the subjects of three detention reviews
by the Immigration Division. On each occasion, the Immigration Division ordered
the appellants' continued detention, finding they were unlikely to appear and
had both the willingness and financial means to elude detection in Canada. The
appellants sought judicial review of all three of the Immigration Division's
decisions, and each decision, in turn, was quashed by the Federal Court.

[6]

On November 16, 2015, following the third successful judicial review
application, the Immigration Division ordered the appellants' release from detention,
subject to terms and conditions that the appellants had proposed. Those terms
and conditions amounted to virtual house arrest. In addition, the appellants
were required to pay for the costs of armed security guards to maintain a 24/7
presence outside of their home, one positioned at the front of the home and the
other at the rear. The cost of maintaining this security is borne by the
appellants and runs to approximately $130,000 per month.

[7]

On April 1, 29, and October 7, 2016 the appellants requested and
obtained modifications to their terms and conditions of release through
applications to the Immigration Division. Those modifications permitted them to
spend time outside in their backyard, and to leave their home, under security
escort, for outings related to groceries, banking, and church services.

[8]

On November 27, 2016, the appellants filed another application with the
Immigration Division to make further modifications to their terms and
conditions. This application was rejected on February 28, 2017. The appellants
did not seek judicial review of this decision. Instead, they filed the
application for
habeas corpus
which led to the judgment that is the
subject of this appeal.

II: The
application

[9]

In response to the appellants application, the respondents brought a
preliminary motion seeking a stay of the application on the basis that the
Superior Court lacked jurisdiction to hear it.

[10]

The
application judge dismissed the application. He gave detailed reasons for doing
so. He noted that the preliminary motion was arguably superfluous because it,
in essence, duplicated the question to be determined on the application itself.
The application judge identified the central issue to be determined as whether
the applicants current house arrest amounts to a detention or deprivation of their
liberty (reasons at para. 28). On that issue, the application judge concluded,
at para. 54:

When the applicants in the case before me were released
from custody on terms and conditions that included house arrest, they were no
longer detained for the purpose of a writ of
habeas corpus
.

III: Analysis

[11]

In
my view, the application judge erred in the above conclusion. He did so in two related
respects. One is that he equated detention for the purposes of
habeas
corpus
with incarceration in a custodial facility. The other is that he
appears to have restricted the operation of
habeas corpus
only to situations
where a person is formally detained rather than to broader situations where
liberty interests are infringed. Put more simply, the application judge wrongly
concluded that in order for there to be an infringement of liberty, to which
the writ of
habeas corpus

could apply, there had to be a
detention of the individual in a custodial facility. That view does not find
support in the case law nor does it accord with the fundamental constitutional
values that underlie the important remedy reflected in the principle of
habeas
corpus
. In order to explain my conclusion, a review of some of the
applicable case law is required.

[12]

Before
embarking on that review, however, I would point out that the scope of the writ
of
habeas corpus
constitutes a question of law. The standard of review
is, thus, one of correctness:
Housen v. Nikolaisen
, 2002 SCC 33,
[2002] 2 S.C.R. 235, at para. 8.

[13]

I
begin with the decision in
May v. Ferndale Institution
, 2005 SCC 82,
[2005] 3 S.C.R. 809. While
May
involved a challenge by federal inmates
to the reclassification of their security level within the federal penitentiary
system, and was thus factually distinct from the situation here, the importance
of the decision for current purposes lies in its review of the history and
principles surrounding
habeas corpus
.

[14]

The
majority in
May
reviewed the purpose behind the writ of
habeas
corpus
. Fish and LeBel JJ., at para. 21, quoted from a decision of Black
J. in the United States Supreme Court where he said that the purpose of
habeas
corpus
was the protection of individuals against erosion of their right
to be free from wrongful restraints upon their liberty. That protection was
stated in broad terms. It was not restricted to imprisonment but to any
restraint on a persons liberty. Such restraints can take many different forms.

[15]

The
decision in
May
went on to consider other cases that had touched on
the purpose of
habeas corpus
. It referred to the Supreme Court of
Canadas trilogy of decisions in
R. v. Miller
, [1985] 2 S.C.R. 613;
Cardinal
v. Director of Kent Institution
, [1985] 2 S.C.R. 643;
M
orin v.
National Special Handling Review Committee,
[1985] 2 S.C.R. 662. The
court pointed out, at para. 31, that in
Miller
, Le Dain J. had also
described
habeas corpus
as the traditional means of challenging
deprivations of liberty. Again, there was no suggestion that the remedy was
restricted to incarceration. The court then went on to consider the exceptions
to the general right of an individual to resort to
habeas corpus
to
challenge their detention, a subject to which I will return shortly.

[16]

Lastly,
the court reinforced the importance of the remedy of
habeas corpus
and
the care which courts ought to take in making any determination that it was not
available as a route to challenge restrictions on a persons liberty. Fish and
LeBel JJ. said, at para. 50:

Given the historical importance of
habeas corpus
in the protection of various liberty interests, jurisprudential developments
limiting
habeas corpus
jurisdiction should be carefully evaluated and
should not be allowed to expand unchecked. The exceptions to
habeas corpus
jurisdiction and the circumstances under which a superior court may decline
jurisdiction should be well defined and limited.

[17]

As
referenced in
May
, there are two exceptions to the availability of
habeas
corpus
.

One is where
a statute confers jurisdiction on a court of appeal to correct the errors of a
lower court and to release the affected person, if necessary. The other is
where a legislator has put in place a complete, comprehensive and expert
procedure for review of an administrative decision affecting a persons
liberty.

[18]

The
first exception has no application to the circumstances here. Rather, it is the
second exception upon which the respondents rely in this case and they do so
based on the assertion that the
Immigration and Refugee Protection Act
is such a complete, comprehensive and expert procedure.

[19]

The
application judge did not directly address whether this second exception applied,
presumably because he concluded that the appellants were not detained and
therefore
habeas corpus
jurisdiction did not lie with the court. He
did refer to this courts decision on that issue in
Chaudhary v. Canada
(Minister of Public Safety and Emergency Preparedness)
,
2015 ONCA
700, 127 O.R. (3d) 401, but he did so only for the purpose of distinguishing the
result in that case from the situation that was before him. He said, at para.
48:

In my view, the Court of Appeal in
Chaudhary
implicitly held that for
habeas corpus
purposes -- even in an
immigration context -- detention means jail or imprisonment.

In reaching that conclusion, the application judge
referred to paras. 38-40 of the reasons in
Chaudhary
.

[20]

I
do not agree with the conclusion that the application judge drew from those
three paragraphs. The first paragraph refers to the history of the prerogative
writ and its purpose. The second paragraph refers to the fact that the remedy
of
habeas corpus
is specifically guaranteed by s. 10(c) of the
Canadian
Charter of Rights and Freedoms
. The third paragraph quotes from Justice
Sharpes text on the subject. While the particular quotation taken by the
application judge does refer to the traditional form of review as being
directed to the gaoler or person having custody of the applicant, it also
notably identifies the issue to be determined as being the reason why a person
is exercising restraint over the applicant.

[21]

In
my view,
Chaudhary
does not support the narrow interpretation given by
the application judge to the remedy of
habeas corpus
. Indeed, the
rationale in
Chaudhary
, fairly read, would support the opposite view.

[22]

Admittedly,
the most common use of the writ of
habeas corpus
is where a person is being
held in custody and they have not, for whatever reason, been granted a hearing
respecting their qualification for release from custody. But there is nothing
in the history of the remedy that would justify limiting its reach solely to
situations where a person is being held in custody. The most common use should
neither eclipse nor exclude other possible uses.

[23]

The
core protection afforded by the writ of
habeas corpus
is the
protection of a persons liberty. That is, the protection of the right that
every individual has to go about their daily life without interference by the
state. Where the state acts to restrict the liberty of the individual, then the
individual must have the right to seek a review of the legitimacy of those
restrictions. As Rouleau J.A. said in
Chaudhary
, at para. 94:

Habeas corpus
issues as of right
once a detainee
proves a deprivation of liberty
and raises a legitimate ground upon which
to question the legality of that deprivation. (Emphasis added).

[24]

This
conclusion is also consistent with the proper approach to be taken to
habeas
corpus

applications. As pointed out in
Mission Institution v.
Khela
, 2014 SCC 24, [2014] 1 S.C.R. 502 at para. 30,
habeas corpus

applications proceed in two stages. First, the applicant must show that he
or she has been deprived of liberty and that there is a legitimate ground upon
which to question the legality of the detention. If the applicant succeeds in
meeting that threshold, the onus shifts to the authorities to show that the
deprivation of liberty is lawful.

[25]

It
is the first stage that we are concerned with in this case. Importantly, the
first stage is not described as requiring the applicant to be detained in
custody, or to be incarcerated, or to be held in a custodial facility, or any
other such language. The key to the first stage is simply, but crucially, a
deprivation of liberty. I note, on this point, that applicants must meet a low
threshold at the jurisdictional stage of a
habeas corpus
application:
Toure
v. Canada (Minister of Public Safety and Emergency Preparedness)
, 2018
ONCA 681 at para. 51.

[26]

In
reaching his conclusion, the application judge placed considerable reliance on
the decision in
R. v. Ethier
, 2009 CanLII 11429 (ON SC). In that case,
the accused challenged the house arrest condition of his release on criminal
charges through a
habeas corpus
application. The application judge
dismissed the application, principally on the basis that
habeas corpus
had no role to play since there was a process within the
Criminal Code
to challenge bail determinations, as confirmed in
R. v. Pearson
, [1992]
3 S.C.R. 665. However, the application judge in
Ethier
also said, at
para. 10:

The historical use of a Writ of
Habeas Corpus directing a jailer to deliver up the person in custody is not
applicable to the applicant following his release from detention.

[27]

I
note three things with respect to this statement. The first is that it was not
central to the issue that the application judge had to determine in that case
and thus could fairly be characterized as
obiter
. The second is that it
was not, in any event, an authority that was binding on the application judge
in the case at bar. The third, and most important, is that the statement is
wrong in law. The application judge in
Ethier
made the same error that
the application judge did here, that is, in restricting the scope of the writ
of
habeas corpus
to situations of incarceration, that is, detention in
its strictest form.

[28]

As
the decision in
May
makes clear,
habeas corpus
potentially applies
to any situation where the state restrains the liberty of the subject. A person
subject to house arrest is a person who has had their liberty restricted. They
are unable to do that which every other ordinary citizen is entitled to do. As
Sharpe J.A. aptly put it in his dissenting reasons in
R. v. Panday
,
2007 ONCA 598, 87 O.R. (3d) 1, at para. 63:

Bail and jail are different points
on a continuum between complete freedom and total deprivation of liberty.
Strict conditions amounting to house arrest significantly constrain liberty and
push bail towards the total deprivation of liberty end of the continuum.

See also
R. v. Downes
(2006), 79 O.R. (3d) 321
(C.A.), at para. 29.

[29]

A
further decision of importance to this issue is
R. v. Gamble
, [1988] 2
S.C.R. 595, where the writ of
habeas corpus
was used to challenge a
parole ineligibility provision. Parole, of course, takes effect after a person
is released from custody. In commenting on the flexibility that is important to
the remedy, especially in the context of
Charter
rights, Wilson J.
said, at para. 64:

There is no doubt that
considerable uncertainty has clouded the scope of review open to a court on an
application for
habeas corpus
and it is understandable that courts
have, in general, not bound themselves to limited categories or definitions of
jurisdictional review when the liberty of the subject was at stake. [Citations
omitted.]

[30]

The
respondents maintain that there is no scope for the application of
habeas
corpus
to this case because there is no deprivation of liberty involved. They
rely in particular on two decisions of the Alberta Court of Queens Bench in
support of their position. One is
Ewanchuk v. Canada (Attorney General)
,
2017 ABQB 237 and the other is
Lee v. Canada (Attorney General)
, 2018
ABQB 40. I note that it does not appear that the application judge was referred
to either of these decisions.

[31]

Ewanchuk
does not assist in this case. It involved an application for
habeas corpus
brought by an unrepresented inmate who had a variety of complaints about his
incarceration including rude staff, improper food preparation, the inmate
grievance procedure, and issues over medical services, telephones and other
amenities. Significantly, Mr. Ewanchuk did not seek his release as part of his
application. Rather he sought damages as compensation for his complaints. It is
not hard to understand why, in those circumstances, the judge concluded, at
para. 68, that Mr. Ewanchuk has not sought any relief that could result from a
habeas corpus
application. I do note that the judge made a comment,
in passing, that
habeas corpus
applies to persons who are detained. I
do not view the judges comment as being intended as an exhaustive statement on
the legal boundaries of the remedy. However, if that was the intention, then
the statement is unduly restrictive and does not accord with the law, as I have
explained above.

[32]

Lee
also does not assist. I note that it too appears to be an application that was
brought by an unrepresented inmate. Mr. Lee was incarcerated at the time of his
application, serving a life sentence for murder. While the material that he
filed was confusing, it appears that Mr. Lee was challenging the failure of the
Parole Board of Canada to consider his parole applications and also challenging
his life sentence. The decision in
Lee
does not address the issue that
falls to be determined here. I do note, in passing, that the judge correctly
observed, at para. 57, that
habeas corpus
is intended to test the
legality of a deprivation of liberty.

[33]

In
the end result, the issue before this court is a very narrow one. It is simply
whether
habeas corpus
can apply where a person seeks to challenge a
deprivation of liberty that arises from a situation other than being held in a
custodial facility, that is, other than detention in its strictest form. Contrary
to the conclusion of the application judge, I say that it can. Once some form
of deprivation of liberty is demonstrated, the first phase of the first stage
for the application of
habeas corpus
is met.  This conclusion is
consistent with the history of the writ of
habeas corpus
and its
fundamental purpose. As Justice Sharpe says in his text,
The Law of Habeas
Corpus
, 3rd ed. Oxford University Press, 2011 at p. 182:

Habeas corpus is a quick,
efficient remedy which may in principle be used at any stage of the legal
process, and there are a number of conceivable situations where a party who is
not actually in a prison cell may wish to seek the relief of habeas corpus.

[34]

Whether
the balance of the requirements for
habeas corpus
are met in this case
is a matter for the Superior Court of Justice to determine when the application
is fully argued.

IV:
Conclusion

[35]

The
appeal is allowed and the judgment below is set aside. The appellants sought to
have us grant the application and impose conditions of release. We decline to
do so. This court is not the proper forum for any such determination. Rather,
the application is remitted back to the Superior Court of Justice to proceed in
accordance with these reasons.

[36]

In
accordance with the agreement of the parties, there will be no order for costs
of the appeal nor of the original application.

Released: October 3, 2018

I.V.B. Nordheimer J.A.

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

I agree. Harvison Young J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Weaver v. Weaver, 2018 ONCA 843

DATE: 20181022

DOCKET: M49377 (M49216)

Strathy C.J.O., Nordheimer J.A. and McKinnon J. (
ad
    hoc
)

BETWEEN

Catherine Weaver

Respondent
(Respondent)

and

Phillip Joseph Weaver

Moving Party
(Appellant)

Allan Rouben, for the moving party

Gary S. Joseph and Meghann P. Melito, for the respondent

Heard and released orally: October 18, 2018

REASONS FOR DECISION

[1]

The motion judge dismissed the moving partys motion for an extension of
    time to seek leave to appeal a costs order in a family law matter.

[2]

She found there was no merit to the proposed motion for leave to
    appeal. The trial judge had applied Rule 24 of the
Family Law Rules
in
    a thorough and thoughtful manner exactly as they are supposed to be applied.
    We agree. The trial judge made findings of bad faith against the moving party
    findings that, in our view, are fully supported by the record.

[3]

Counsel for the moving party suggests that there is a legal issue here.
    He submits that the trial judge failed to take into account offers to settle
    made by the moving party that were allegedly more favourable than the outcome.
    We disagree. The trial judge took into account the offers to settle and found
    that the respondent to this motion had made more serious attempts to settle the
    matters than the respondent. This finding was open to him. Moreover, the trial
    judges disposition was fully supported by the mandatory language of Rule 24(8)
    of the
Family Law Rules
.

[4]

The motion judges order was discretionary and attracts deference, as
    does the underlying costs order. The moving party has not demonstrated any
    error in the exercise of that discretion. Unlike
Derakhshan v. Narula
,
    2018 ONCA 658, referred to by counsel for the moving party, this is not a case
    in which the justice of the case required an extension.

[5]

The motion to set aside the order of the motion judge is therefore
    dismissed. Costs payable to the responding party in the agreed amount of
    $6,000, inclusive of disbursements and all applicable taxes.

G.R. Strathy C.J.O.

I.V.B. Nordheimer J.A.

Colin McKinnon J. (
ad hoc
)


COURT OF APPEAL FOR ONTARIO

CITATION: Wood v. CTS of Canada Co., 2018 ONCA 804

DATE: 20181005

DOCKET: C64519

Hoy A.C.J.O., Brown and Trotter JJ.A.

BETWEEN

Claudette Wood, Bruce Cook and John Featherstone

Plaintiffs (Respondents)

and

CTS of Canada Co. and CTS Corporation

Defendants (Appellants)

Timothy Pinos, Kristin Taylor and Caitlin Russell, for
    the appellants

Stephen Moreau and Genevieve Cantin, for the respondents

Heard: May 15, 2018

On appeal from the judgment of Justice John R. Sproat of
    the Superior Court of Justice, dated September 26, 2017, with reasons reported
    at 2017 ONSC 5695, 42 C.C.E.L. (4th) 43.

COSTS ENDORSEMENT

[1]

We have received and reviewed the submissions of the
    parties regarding costs of the motion below. In accordance with their
    agreement, the issue of the costs of the motion below is remitted to Sproat J.,
    or his successor, for determination at the appropriate time, when the value of
    the claims and the effect of a Rule 49 offer are more fully within the
    knowledge of the parties.

Alexandra Hoy
    A.C.J.O.

D.M. Brown J.A.

Gary Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: 2279088 Ontario Inc. v. Nisbet, 2018 ONCA 897

DATE: 20181109

DOCKET: C65227

Lauwers, Huscroft and
    Trotter JJ.A.

BETWEEN

2279088 Ontario Inc.

Applicant/Respondent by

Counter-Application (Appellant)

and

Alan Douglas Nisbet

Respondent/Applicant by

Counter-Application (Respondent)

Patrick R. Simon, for the appellant

Colin R. Dubeau, for the respondent

Heard: November 1, 2018

On appeal from the order of Justice Robert Pelletier of
    the Superior Court of Justice, dated March 15, 2018.

REASONS FOR DECISION

[1]

This appeal involves a dispute over a parking platform that was built on
    Mr. Nisbets land and which encroaches on contiguous property owned by 2279088
    Ontario Inc. (227). The application judge dismissed 227s claim in trespass
    and allowed Mr. Nisbets claim for a declaration of title as a result of
    adverse possession.

The Parking Platform and the Land

[2]

227 owns a piece of land, part of which serves as a private roadway (known
    as Chretien Street) in the Township of Alfred-Plantagenet, in the United
    Counties of Prescott and Russell. Mr. Nisbet is one of 14 landowners who enjoys
    a right of way over this roadway, and over a grassy drainage area between his
    land and the home of Joseph Jones, the sole shareholder and director of 227.
    The roadway is also the subject of various easements (in relation to water,
    sewage, and other utilities) in favour of the Township.

[3]

In 1994, Mr. Nisbets predecessor in title built the parking platform. The
    top of the platform is level with the road. Because the land slopes away from
    the roadway, there are retaining walls on the other three sides of the
    platform, comprised of interlocking timbers. It is mostly filled in by gravel.

[4]

The timbers that support the platform extend to the roadway and encroach
    by 1.37 meters (54 inches). The encroachment is beneath the ground and only
    extends as far as a grassy area to the side of the traveled roadway.

[5]

The other encroachment is at the rear of the platform, where the timbers
    meet at one of the corners. At a height of six feet, it encroaches by only .33
    meters (13 inches) onto the unmaintained grassy drainage area of 227s land.

[6]

When the parking platform was built in 1994, long before Mr. Nisbet and
    227 were on the scene, a landowner who was building his own home across the
    roadway was able to pinpoint when the platform was constructed. He has images of
    the property taken before and after the platform was built. He also observed
    that, once completed, the platform was used exclusively by Mr. Nisbet and his
    predecessors in title to park their respective vehicles, and those of their
    guests.

The Dispute

[7]

227 acquired the property in 2011. Trouble soon followed. The
    application judge found that Mr. Jones immediately declared his rights as the owner,
    claiming that he could do as he wished with the land, including tearing up the
    asphalt roadway and replacing it with grass. He threatened to sue Mr. Nisbet.
    This hostile stance resulted in criminal proceedings against Mr. Jones, and
    then this litigation.

[8]

It was not until 2016 that a survey revealed the encroachments at issue
    in this litigation. As the application judge found, at para. 30, it would
    appear that the parties had been operating on the basis of a mistake about
    property lines.

[9]

227 brought an application for a declaration of trespass and for an
    order that the parking platform be torn down. Mr. Nisbet sought a declaration
    vesting title in the encroached lands in his name, based on a claim of adverse
    possession.

[10]

The
    application judge dismissed 227s claim. Applying the governing authorities of
    this court, including
Masidon Investments Ltd. v. Ham
(1984), 45 O.R.
    (3d) 563 (C.A.), leave to appeal refused, [1984] S.C.C.A. No. 232;
Teis v.
    Ancaster (Town)
(1997), 35 O.R. (3d) 216 (C.A.); and
McClatchie v.
    Rideau Lakes (Township)
, 2015 ONCA 233, the application judge allowed the
    adverse possession claim, subject to the existing rights of way.

Analysis

[11]

In
    approaching this case, we accept the parties invitation to address the two
    encroachments together, in an all-or-nothing fashion. Although each
    encroachment has a somewhat different impact on 227, they arise from a single
    structure  the parking platform. The timbers that create the triangular
    encroachment on the drainage ditch are the same timbers that extend underneath
    the roadway. To approach the case otherwise would be artificial.

[12]

227
    argues that the application judge applied an erroneous test for adverse
    possession. It submits that
Keefer v. Arillott
a
(1976), 13 O.R.
    (2d) 680 (C.A.) created a modified test when one claims adverse possession
    to lands subject to others rights of way. 227 relies on the following passage
    from the reasons of Wilson J.A. (as she then was), at pp. 691-692:

The onus of establishing title by possession is on the
    claimant and it is harder for a claimant to discharge this onus when he is on
    the property pursuant to a grant from the owner
. It was held in
Littledale
    v. Liverpool College
, [1900] 1 Ch. 19, that
acts done on another's land
    may be attributed to the exercise of an easement, even an excessive exercise of
    an easement, rather than to adverse possession of the fee.

In
Pflug and Pflug v. Collins
, [1952] O.R. 519 at p.
    527, [1952] 3 D.L.R. 681 at p. 689 [affirmed [1953] O.W.N. 140, [1953] 1 D.L.R.
    841], Mr. Justice Wells (as he then was) made it clear that a person claiming a
    possessory title must establish (1) actual possession for the statutory period
    by themselves and those through whom they claim; (2) that such possession was
    with the intention of excluding from possession the owner or persons entitled
    to possession; and (3) discontinuance of possession for the statutory period by
    the owner and all others, if any, entitled to possession. If he fails in any
    one of these respects, his claim fails. [Emphasis added.]

[13]

This
    passage does not bear the interpretation urged upon us by 227. Wilson J.A. did
    not modify the requirements for adverse possession in cases involving
    pre-existing easements; she merely observed that it will be more difficult from
    an evidentiary perspective to establish the pre-conditions in these
    circumstances. As is clear from this excerpt, a stricter approach prevents easements
    from maturing into title too easily.

[14]

Moreover,
    we are not persuaded that the application judge misapplied the doctrine of
    adverse possession. There was a solid evidentiary foundation on which he could
    find that the construction of the parking platform was not merely the excessive
    use of the right of way; it involved a completely different use of the land in
    question, different in purpose and kind from the original grant.

[15]

The
    evidence demonstrated that Mr. Nisbet and his predecessor in title
    unequivocally excluded the true owners and all others from the use of the
    encroached spaces. Over two decades of exclusive use of these spaces permitted
    the application judge to find the intention to exclude all others. In short, Mr.
    Nisbet proved the three elements necessary to establish title by adverse
    possession.

[16]

227
    further argues that the application judge erred by ignoring the doctrine of
    inconsistent use, whereby it must be proved that the claimants use of the land
    is inconsistent with the true owners present or future enjoyment of the land:
    see
Keefer
; and
Masidon
. We disagree.

[17]

In
Teis
, Laskin J.A. observed, at para. 24, that inconsistent use is a
    controversial element of an adverse possession claim. This element, which was
    revived in
Leigh v. Jack
(1879), 5 Ex. Div. 264 (C.A.), at p. 273, has
    in more recent times been denounced by the House of Lords as heretical and
    wrong: see
J. A. Pye (Oxford) Ltd. v. Graham
, [2002] UKHL 30, [2003]
    1 A.C. 419, at para. 45. See also the discussion in
Nelson (City) v. Mowatt
,
    2017 SCC 8, [2017] 1 S.C.R. 138, at paras. 17-27. Counsel for Mr. Nisbet argues
    that this court should dispense with this element of adverse possession once
    and for all.

[18]

Presently
    constituted as a three-person panel, we are not able to address this argument,
    which would involve reversing numerous authorities of this court. Only a
    five-person panel could receive such arguments. See
Sipsas v. 1299781
    Ontario Inc.
, 2017 ONCA 265, at para. 30, in which an identical request
    was rejected for the same reason.

[19]

In
    any event, to the extent that it was necessary to address this issue, we are
    satisfied that the application judge adequately dealt with inconsistent use in
    relation to the roadway, at paras. 29-31 of his reasons. Although he did not
    address inconsistent use as it applied to the drainage ditch, it was not
    necessary to do so because the dispute (over both pieces of disputed land) arose
    as a result of a mutual mistake. As this court held in
Teis
, at para.
    25, the doctrine has no application in these circumstances.

[20]

227
    also argues that the application judge granted relief not sought by Mr. Nisbet
    and, in doing so, rendered the proceedings unfair. As 227 submits in its factum:
    when the Learned Application Judge granted Mr. Nisbet possessory title
    subject to the same encumbrances already on title, the Learned Application Judge
    caught the Appellant by surprise and did not allow the Appellant to make
    submissions regarding same relief.

[21]

There
    is no merit in this ground of appeal. Both parties had the opportunity to make
    submissions to the application judge on this issue, both orally and in writing.
    Moreover, there was nothing unfair or unusual about the relief granted by the
    application judge. As Laskin J.A. said in
Teis
, at para. 34: A
    possessory title may be subject to a right of way.

[22]

Lastly,
    227 submits that, should it be successful on the adverse possession issue, it
    is entitled to injunctive relief based on its claim of trespass. To the extent
    that it is necessary to address this issue, this ground has no merit. The
    encroachments were trifling. One was underground. As the application judge
    found, at para. 24, the parking platform has not created even the slightest
    obstruction or risk for those who exercise their rights of way on the roadway. Nor
    was it established that the miniscule encroachment created by the rear corner
    of the parking platform has impacted on anyones enjoyment of the drainage
    ditch. The fact that the encroachment is a permanent structure is irrelevant:
    see
Weidelich v. de Koning
, 2014 ONCA 736, 122 O.R. (3d) 545, at para.
    19.

Disposition

[23]

The
    appeal is dismissed.

[24]

Counsel
    agree that the successful party on appeal is entitled to $17,000, inclusive of
    disbursements and HST. Mr. Nisbet is entitled to costs in this amount.

P. Lauwers
    J.A.

Grant Huscroft
    J.A.

G.T. Trotter
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Beahon v. Steinfeld, 2018 ONCA 921

DATE: 20181119

DOCKET: C65454

Lauwers, Hourigan and Pardu JJ.A.

BETWEEN

Aikhon Beahon

(Plaintiff) Appellant

and

Hal Steinfeld and S. Grabish

(Defendants) Respondents

Aikhon Beahon, in person

Vedran Simkic, for the respondent, Hal Steinfeld

Heard: November 9, 2018

On appeal from the
    judgment of Justice Akbarali of the Superior Court of Justice, dated March 2,
    2017.

REASONS FOR DECISION

[1]

The appellant argues that he was a tenant entitled to full protections
    under the
Residential Tenancies Act
, 2006, S.O. 2006, c. 17.

[2]

This would render illegal the respondents changing of the locks on the
    unit and the disposal of the appellants belongings that were left by him in
    the apartment.

[3]

The motion judge decided that Mr. Beahon was not a tenant. In doing so,
    she reached the same conclusion as the Landlord and Tenant Board, and she noted
    without a legal tenancy, Mr. Beahon is not entitled to the protections
    typically afforded to tenants. She noted as well that it would be
    inappropriate to make an order requiring return of Mr. Beahons property
    because it has been disposed of by the respondents principal, which manages
    the building.

[4]

There is before us no evidence from which it could be concluded that Mr.
    Beahon was a legal tenant within the meaning of the
Residential Tenancies
    Act
. The appeal is therefore dismissed.

[5]

Costs will be fixed in the amount of $300.

P.
    Lauwers J.A.

C.W.
    Hourigan J.A.

G.
    Pardu J.A.


CITATION: Cardinal
    (Re), 2018 ONCA 892

DATE: 20181108

DOCKET: C65167

MacPherson, Hourigan
    and Miller JJ.A.

IN THE MATTER OF: Joshua
    Cardinal

AN APPEAL UNDER PART
    XX.1 OF THE
CODE

William Murray, for the appellant

Jill Cameron, for the respondent

Marie-Pierre Pilon, for the Person in Charge of the
    Royal Ottawa Health Care Group

Heard: November 2, 2018

On appeal from the disposition of the Ontario Review Board,
    dated February 21, 2018

REASONS FOR DECISION

[1]

The appellant appeals the disposition of the Ontario Review Board dated
    February 21, 2018. He seeks an absolute discharge or, in the alternative, a new
    hearing. He raises two grounds of appeal.

[2]

First, the appellant argues that contrary to the Boards findings, he
    does not pose a significant danger to the safety of the public. This is because
    he now has insight into his mental illness, acknowledges that he requires
    medication, and takes medication.

[3]

The appellant argues, and the respondents concede, that when medicated, he
    has not acted violently, and has maintained steady work and home ownership. The
    respondents also concede that the appellant has maintained this high level of
    functioning despite habitual and near daily marijuana use.

[4]

Nevertheless, matters are complicated by the appellants recent cocaine
    use. Prior to being found NCR, the appellants manic episodes were preceded by
    cocaine use and associated non-compliance with medication. Given this history,
    as well as Dr. Ahmeds concerns that cocaine use increases the risk of violence
    for persons who have a major mental disorder, the Boards concern about the
    risk of harm posed by the appellants recent return to cocaine use was
    reasonable, as was its decision not to grant an absolute discharge.

[5]

We agree with the appellant, however, that he must succeed on his second
    ground of appeal. The appellant argues that transcription errors in the Boards
    reasons entitle him to a new hearing. In at least two places, the Boards reasons
    confuse the appellant with another hospital patient, referring to that
    patients hospital report. The Attorney General of Ontario concedes that this
    error entitles the appellant to a new hearing. The hospital, however, argues
    that the disposition is nevertheless reasonable and should be upheld.

[6]

On the face of the reasons, the Board relied on irrelevant material.
    Although the hospital argues that these are merely transcription errors that
    have since been corrected and did not impact the result reached, we are unable
    to ascertain whether, or to what extent, the Boards analysis was based on the
    hospital report of a different patient. In these circumstances, a new hearing
    must be ordered.

[7]

We have been advised that the appellants annual review hearing has been
    scheduled for February 2019. In the interests of efficiency, the new hearing
    ordered herein will be in the nature of the annual review and will take the
    place of the February 2019 hearing. The parties will be permitted to lead fresh
    evidence post-dating the 2018 annual review.

DISPOSITION

[8]

The appeal is allowed and a new hearing ordered.

J.C. MacPherson J.A.

C.W. Hourigan J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Cheung v.
    Samra, 2018 ONCA 923

DATE: 20181119

DOCKET: M49623 (C65583)

Watt, Miller and Nordheimer
    JJ.A.

BETWEEN

Rhonda Hong-Ching Cheung, a
    minor by her Litigation Guardian, Yuen Ni Cheung-Kwan, Ronald Chun-Pok Cheung,
    Raymond S.H. Cheung and the said Yuen Ni Cheung-Kwan, personally

Responding Parties (Appellants)

and

D. Samra
,
J. Ma
, A. Joglekar, A. Madikiza, Rouge Valley Health System
    Centenary Health Centre Site, G. Mitchell, S. Treuer, P. Taylor, J. Moses, A.
    Bartlay, M. Jacobs, A. Tranter and S. Reno

Moving Parties
(Respondents)

Darryl Cruz and Meghan Bridges, for the
    moving parties/respondents

Gavin MacKenzie, Hilik Elmaleh and
    Brooke MacKenzie, for the responding parties/appellants

Heard: November 16, 2018

On
    appeal from the order of Justice Darla Wilson of the Superior Court of Justice
    dated June 5, 2018 with reasons reported at 2018 ONSC 3480

REASONS FOR
    DECISION

[1]

The moving parties bring this motion to quash
    the plaintiffs appeal from the order of D. Wilson J. dated June 5, 2018 on the
    basis that the order in issue is an interlocutory, not final, order and thus is
    only appealable to the Divisional Court with leave. At the conclusion of the
    hearing, we quashed the appeal with reasons to follow. We now provide those
    reasons.

[2]

This is a medical negligence action concerning
    the obstetrical care provided by the moving parties to the plaintiff, Yuen Ni
    Cheung-Kwan, while she was pregnant with Rhonda Hong-Ching Cheung. There was a
    multi-day trial before a jury on the issue of causation. Ultimately, the jury
    found in favour of the responding parties. However, there was an issue over the
    answers that the jury had provided to the questions asked. The moving parties
    asked that judgment not be entered in accordance with the jurys verdict
    pursuant to r. 52.08 of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194. The responding parties
    asked that judgment be entered.

[3]

The trial judge decided that she would not enter
    judgment in accordance with the jurys verdict. Rather, in detailed reasons,
    she concluded that a new trial was necessary because the answers of the jury
    on causation are fatally flawed:
Cheung
    v. Samra
, 2018 ONSC 3480, at para. 95.

[4]

The moving parties contend that the order in
    issue is an interlocutory order and therefore any appeal lies to the Divisional
    Court with leave
Courts of
    Justice Act
,
R.S.O. 1990, c. C.43, s. 19(1)(b). The
    responding parties contend that the order is final and thus the appeal lies to
    this court
Courts of Justice
    Act
, s. 6(1)(b).

[5]

There have been many efforts made to enunciate
    the difference between final and interlocutory orders. One of the first such
    efforts is found in
Hendrickson
    v. KalIio
, [1932] O.R. 675 (C.A.). In that decision, Middleton J.A.
    said, at p. 678:

The interlocutory order from which there is no
    appeal is an order which does not determine the real matter in dispute between
    the parties  the very subject matter of the litigation, but only some matter
    collateral. It may be final in the sense that it determines the very question
    raised by the applications, but it is interlocutory if the merits of the case
    remain to be determined.

[6]

Subsequent cases have expanded on that definition.
    For example, the decision in
Ball v. Donais
(1993), 13 O.R. (3d) 322
    (C.A.) held that where a substantive right of a party was determined, even if
    other aspects of the proceeding remained to be determined, the resulting order
    was a final order.

[7]

In our view, the order in question here is
    interlocutory. Contrary to the position of the responding parties, it does not
    decide any substantive right between the parties. Rather, the order directs
    that a new trial be held where those substantive rights will be determined. The
    conclusion that an order directing a new trial is interlocutory is consistent
    with a number of other decisions where mistrials have been declared (and
    consequently a new trial was necessary). Those orders have, with one possible
    exception, consistently been held to be interlocutory: see, for example,
Williams et al. v. Grand River Hospital
    et al.
, 2016 ONCA 793, 134 O.R. (3d) 319. The one possible
    exception is
Lang v. McKenna
(2000), 135 O.A.C. 304. However, in that case, it does not appear that the
    issue of whether the order was final or interlocutory was raised nor was it
    determined by the panel hearing that appeal.

[8]

The responding parties resist the comparison to
    cases where mistrials were declared on the basis that, in this case, the trial
    was completed and the jurys verdict received. The responding parties say that,
    unlike the mistrial cases, in this case the trial was finally adjudicated and
    that they are being deprived of their right to the jurys verdict. They also
    complain that they are being deprived of their companion right to a review of
    that decision by this court.

[9]

There are two problems with the position of the
    responding parties. First, the responding parties are not being deprived of
    their right of review. The only issue is which of this court or the Divisional
    Court is the appropriate forum for that review. Thus, it is not the right of
    appeal but the forum for the appeal process that is at issue. Second, whether
    the order is final or interlocutory turns on the order that was granted, not
    the order that might have been granted. The fact that, had the trial judge
    reached the opposite conclusion, the resulting order would have been final,
    does not dictate that the order given is final. To the contrary, just as a
    summary judgment is a final order, an order dismissing a motion for summary
    judgment is interlocutory. The responding parties position runs afoul of the
    point made in
Waldman v.
    Thomson Reuters Canada Ltd.
, 2015 ONCA 53, 330 O.A.C. 142, where
    MacFarland J.A. said, at para. 22:

This submission
    presumes that, to be a final order, an order need only dispose finally of
    whatever issue was before the motion judge irrespective of whether the order
    terminates the action or resolves a substantive claim or defence of the
    parties. Were that so, the distinction between interlocutory and final orders
    would cease to exist.

[10]

The fact is that the order of the trial judge
    does not finally determine the rights of the parties nor does it determine a
    substantive claim or defence. Indeed, it does the opposite. It requires that
    the parties have another trial for the very purpose of determining those
    issues.

[11]

Before concluding, we would add one further
    observation. The formal order in this case has not been taken out. The court
    raised this concern with counsel prior to the hearing. Counsel acknowledged
    their oversight in this regard but urged us to hear the motion in any event. We
    chose to do so in order to avoid the delay that would have been occasioned
    through an adjournment of this matter, especially if we concluded that the
    matter had to be transferred to the Divisional Court. However, we would
    reinforce that this is not the proper procedure to be followed in such matters.
    The formal order must be taken out since any appeal lies from the order, not
    from the reasons:
Grand River
    Enterprises v. Burnham
(2005), 197 O.A.C. 168 (C.A.) at para. 10.
    Further, in some instances, the precise wording of the order may have an impact
    on the proper analysis.

DISPOSITION

[12]

The appeal is quashed. The matter is transferred
    to the Divisional Court for the purpose of permitting the responding parties to
    bring a motion for leave to appeal. The moving parties are entitled to their
    costs of the motion fixed in the agreed amount of $12,000 inclusive of
    disbursements and HST.

David Watt J.A.

B.W. Miller J.A.

I.V.B. Nordheimer J.A.


WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the Criminal
    Code
provide:

486.4(1)       Subject to subsection
    (2), the presiding judge or justice may make an order directing that any
    information that could identify the victim or a witness shall not be published
    in any document or broadcast or transmitted in any way, in proceedings in
    respect of

(a)     any of the following offences;

(i)      an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
    s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more
    offences being dealt with in the same proceeding, at least one of which is an
    offence referred to in paragraph (a).

(2)     In proceedings in respect of the
    offences referred to in paragraph (1)(a) or (b), the presiding judge or justice
    shall

(a)     at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)     on application made by the
    victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)     In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)     An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community.
2005, c.
    32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014,
    c. 25, ss. 22,48; 2015, c. 13, s. 18.

486.6(1)       Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to in
    subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: Flowers (Re), 2018 ONCA 936

DATE: 20181123

DOCKET: C65388

Sharpe, Hourigan and Trotter JJ.A.

IN THE MATTER OF: Delroy Allen Flowers

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti, for the appellant Delroy Allen Flowers

Nicole Rivers, for the Attorney General of Ontario

Gavin Mackenzie, for the Centre for Addiction and Mental
    Health

Heard: November 20, 2018

On appeal against the disposition of the Ontario Review
    Board dated, December 21, 2017.

REASONS FOR DECISION

[1]

In 2011, the appellant, Delroy Flowers,
    sexually assaulted a co-resident of a group home for the mentally challenged.
    He was charged with aggravated sexual assault and found not criminally
    responsible on account of mental disorder on October 4, 2013.  He has remained
    subject to the jurisdiction of the Ontario Review Board (ORB) since that
    date. Mr. Flowers is HIV positive and suffers from schizophrenia, stimulant use
    disorder (cocaine type), intellectual disability (mild), and antisocial
    personality disorder.

[2]

In November 2017, while detained in the
    general unit at the Centre for Addiction and Mental Health (CAMH), Mr.
    Flowers went AWOL. When he was returned to the hospital by police he was placed
    in the secure unit. This incident resulted in a combined restriction of
    liberties hearing and annual review conducted on December 13, 2017. The ORB subsequently
    issued a Disposition Order that requires Mr. Flowers be detained in the secure
    unit at CAMH, with privileges up to and including indirectly supervised access
    to hospital grounds and accompanied community access.

[3]

Mr. Flowers appeals the Disposition Order,
    submitting that it is unreasonable and an attempt to detain him without
    providing rehabilitation. Further, he submits that the ORB should have
    intervened to break an impasse in his treatment. We decline to give effect to
    these submissions for the following reasons.

[4]

Counsel for Mr. Flowers conceded that her
    client poses a significant threat to public safety. It is clear from the record
    that he has a history of going AWOL, having eloped from the hospital in each of
    the previous three years.  In the most recent incident, he used cocaine and
    sought out sexual activity while not taking his HIV medication. Mr. Flowers did
    not consider this behaviour to be problematic and the evidence suggests that he
    has a limited understanding of the concept of sexual consent. The ORB accepted
    evidence that the team in the general unit has maximized the process to manage
    his risk in that unit.  It is clear that the appellants risk can no longer be
    managed in a general unit and, accordingly, detention in a secure unit is the
    least onerous and least restrictive disposition. In these circumstances, the
    ORBs decision was entirely reasonable.

[5]

We are also satisfied that Mr. Flowers
    rehabilitative needs can be met in the secure unit, which has better staffing
    ratios than the general unit. Further, the evidence before the ORB was that
    programming that may benefit Mr. Flowers is more readily available in the
    secure unit than in the general unit.

[6]

Mr. Flowers submits that the ORB was required
    to intervene to break a treatment impasse. We are not satisfied that a
    treatment impasse has been reached in this case. Mr. Flowers continues to
    receive treatment and his team is considering further treatment options. There
    have been recent setbacks in Mr. Flowers treatment, but those are the result
    of his own misconduct. There was no evidence in the record that further
    treatment progress cannot be achieved over time.

[7]

The appeal is dismissed.

Robert
    J. Sharpe J.A.

C.W.
    Hourigan J.A.

G.T.
    Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Gonsalves (Re), 2018 ONCA 904

DATE: 20181109

DOCKET: C65111

Feldman, Roberts and Fairburn JJ.A.

IN THE MATTER OF: Errol Gonsalves

AN APPEAL UNDER PART XX.1 OF
    THE
CODE

Anita Szigeti, for the
    appellant

Rebecca Schwartz, for the Attorney General of Ontario

Michele Warner, for the Centre for Addiction and Mental
    Health

Heard: November 8, 2018

On appeal from the disposition of
    the Ontario Review Board, dated January 16, 2018.

REASONS FOR
    DECISION

[1]

The appellant appeals the
    disposition of the Ontario Review Board (the Board) dated January 16, 2018.
    He seeks a conditional discharge or, in the alternative, a new hearing.

[2]

On September 21, 2017, the appellant was found not criminally
    responsible in relation to several serious impaired driving and assault charges
    against random members of the public, which occurred when he was in a manic
    state and under the influence of drugs and alcohol.  He has since been
    diagnosed with Bipolar Affective Disorder and Substance Use Disorders (Alcohol
    and Cannabis, in remission) and has been taking mood-stabilizing and
    anti-psychotic medications to control the symptoms of his illnesses.

[3]

This appeal arises out of unusual circumstances.  Following the hearing
    on January 16, 2018, the Board issued its disposition that the appellant be
    detained at the General Forensic Unit of the Centre for Addiction and Mental
    Health (CAMH), Toronto.  On March 5, 2018, the Board released its reasons in
    support of that disposition, only those reasons granted the appellant a
    conditional discharge.  On March 8, 2018, the Board issued Fresh Reasons for
    Disposition, containing material amendments to its earlier reasons, concluding
    with a detention order, as provided for in its disposition of January 16.

[4]

The Attorney General and CAMH concede that, in the light of the Boards
    unexplained and materially conflicting sets of reasons, the January 16 disposition
    cannot stand, and the appeal must be allowed.  They submit a new hearing is the
    only appropriate remedy in the unfortunate circumstances of this case.

[5]

We agree that there must be a new hearing. It is understandable why the
    appellant feels that an injustice has been done. However, with the fluctuation
    between a detention order, to reasons in support of a conditional discharge, to
    reasons in support of the original detention order, it is impossible to know
    with any degree of certainty what the Board intended. This is particularly so
    in light of the fact that the Board did not explain how or why the different
    sets of reasons came to be.

[6]

Time is of the essence and a
    new hearing must be scheduled at the earliest possible date and not more than
    three weeks from the day of this order. We have been advised that the
    appellants annual review hearing has been scheduled for January 2019. The new
    hearing will not replace the annual review. At the November 2018 hearing, the
    parties will be permitted to lead fresh evidence post-dating the January 16,
    2018 hearing
, including any information required from any collateral
    sources.

Disposition:

[7]

For these reasons, the appeal is allowed.  A new hearing is ordered to
    take place within the next three weeks before a differently constituted panel.

K. Feldman J.A.

L.B. Roberts
    J.A.

Fairburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Hampton Securities Limited v. Dean, 2018 ONCA 901

DATE: 20181109

DOCKET: C64908

Lauwers, Hourigan and Pardu JJ.A.

BETWEEN

Hampton Securities Limited

Plaintiff

(Appellant)

and

Christina Nicole Dean

Defendant

(Respondent)

Sara Erskine and David Barbaree, for the appellant

Christopher Somerville and Daphne Hooper, for the
    respondent

Heard: November 7, 2018

On appeal from the
    judgment of Justice Markus Koehnen of the Superior Court of Justice, dated
    February 7, 2018, with reasons reported at 2018 ONSC 101.

REASONS FOR DECISION

[1]

Christina Dean was employed by
    Hampton Securities Limited (Hampton) as a proprietary trader. On April 2,
    2009, Ms. Dean met with Hamptons C.E.O., Peter Deeb. During that meeting, Mr.
    Deeb took the position that Ms. Dean owed Hampton money as a result of certain
    trading losses and that Ms. Dean was required to post an additional $50,000 to
    her reserve account, failing which she would be suspended from trading.

[2]

The next day, Ms. Dean
    resigned from Hampton, citing constructive dismissal. Shortly thereafter,
    Hampton filed a Notice of Termination (NOT) on the National Research Database
    maintained by its regulator, the Investment Industry Regulatory Organization of
    Canada (IIROC). In that filing, Hampton stated that Ms. Dean was terminated
    for cause for failing to follow trading policies and engaging in unauthorized
    trading.

[3]

Hampton commenced this action
    seeking repayment from Ms. Dean of amounts alleged to be owing as a result of
    trading losses. Ms. Dean counterclaimed alleging constructive dismissal and
    defamation.  The trial judge ruled that Ms. Dean owed no monies to Hampton,
    that she was constructively dismissed and was entitled to six months notice in
    lieu of salary, that she was entitled to damages in the amount of $25,000 for
    defamation, and that she should receive $25,000 in punitive damages. In a
    subsequent written endorsement on costs, the trial judge awarded costs on a
    full indemnity basis to Ms. Dean in the total amount of $248,144.94.

[4]

Hampton appeals all of the
    foregoing findings and the costs award. In our view, the arguments advanced by
    Hampton, which will be considered below, are entirely without merit.

[5]

There is no basis to interfere
    with the trial judges interpretation of Ms. Deans employment contract with
    respect to trading loses. The trial judge provided thorough and compelling
    reasons why Ms. Dean is only required to reimburse Hampton for 60 percent of
    such loses. That analysis is entitled to deference from this court:
Sattva
    Capital Corp. v. Creston Moly Corp
, 2014 SCC 53, [2014] 2 S.C.R. 633, at paras. 50 - 55. In any event, we
    are of the view that the trial judges analysis was correct.

[6]

We also see no error in the
    trial judges conclusion that Ms. Dean was constructively dismissed and was
    entitled to six months notice. There can be no serious argument that Ms. Dean
    was not constructively dismissed when Mr. Deeb took the position that she would
    be suspended from trading if she did not pay an additional $50,000.

[7]

The trial judge found
that the termination clause in Ms. Deans
    employment contract was not enforceable on the basis that it excluded Ms.
    Deans entitlement to benefits under s. 60(1)(c) of the
Employment
    Standards Act
,
2002
, S.O.
    2000, c. 41. In doing so, the trial judge relied on

Wood v.
    Fred Deeley Imports
, 2017 ONCA
    158, 134 O.R. (3d) 481. In our view, the trial judge correctly analogized the
    termination clause in Ms. Deans employment contract to the termination clause
    in
Wood
. Both clauses provide for pay after termination without cause
    but exclude further compensation. The trial judge did not err in finding that
    the clause in Ms. Deans employment contract excluded benefit contributions and
    thereby did not comply with s. 60(1)(c) of the
ESA
.

[8]

The primary submission made on
    the defamation claim is that the defence of qualified privilege applies.
There are two limitations to the qualified
    privilege defence established in
Botiuk v. Toronto Free Press
    Publications Ltd.
, [1995] 3
    S.C.R. 3 and re-articulated by this court in
RTC Engineering
    Consultants Ltd v. Ontario
(2002), 58 O.R. (3d) 726. These authorities hold that the defence will be
    defeated: (1) if the dominant motive for publishing is malice, or (2) if the
    statement exceeds the limits of the duty giving rise to the privilege.

[9]

In our view, leaving aside
    the issue of malice,
the trial
    judge was correct to find that the defence of qualified privilege did not apply
    on the basis that Hamptons statement exceeded the legitimate purposes of the
    duty to report all internal discipline matters to IIROC
.
The
    trial judge, relying on ample evidence, found that the information submitted in
    the NOT was untrue and wholly unsubstantiated. Providing misleading statements
    to IIROC clearly exceeded the scope of the duty to report all internal
    discipline matters or the duty to warn of potential risks that registered
    individuals may create.

[10]

We are also of the view that the award of
    punitive damages was perfectly appropriate given the conduct of Hampton,
    including the independently actionable breach of the duty of good faith in Ms.
    Deans employment contract.  Such an award was necessary to sanction Hampton
    for its marked departure from the ordinary standards of decent behavior.

[11]

Contrary to the submission made by Hampton,
    there is no overlap in the damages awarded. The damages were modest and do not
    come close to fully compensating Ms. Dean for the devastating consequences of
    Hamptons conduct.

[12]

Finally, there is no basis to interfere
    with the costs award. Ms. Dean made repeated generous offers to settle the case
    that were rebuffed or ignored by Hampton. It is clear that Hampton took a
    hardline, no compromise position in this litigation. That is a tactic that comes
    with costs consequences; it does not fall to this court to relieve Hampton from
    those consequences.

[13]

The appeal is dismissed.

[14]

The respondent seeks costs on a substantial
    indemnity scale, arguing that the appeal was a continuation of the abuse she
    has suffered at the hands of Hampton. We would not give effect to this
    submission. The appellant raised some arguable issues on appeal. While those
    ground were weak, we cannot say that the appeal was abusive. We order the
    appellant to pay the respondent her costs of the appeal on a partial indemnity
    scale in the amount of $35,500.

P. Lauwers J.A.

C.W. Hourigan J.A.

G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Havelock-Belmont-Methuen (Township) v. Kloosterman,

2018 ONCA 945

DATE: 20181126

DOCKET: C65367

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

BETWEEN

The Corporation of the Township of
    Havelock-Belmont-Methuen

Applicant
(Respondent on Appeal)

and

Albert Kloosterman and Mary Lynne Kloosterman

Respondents
(Appellants on Appeal)

Christopher Robertson, for
    the Appellants

M. John Ewart and Jessica Chapman, for the Respondent

Heard: November 19, 2018

On appeal from the
    order of Justice Alexander Sosna of the Superior Court of Justice, dated April
    12, 2016.

REASONS FOR DECISION

[1]

The appellants are owners of a piece of vacant land in the Township of Havelock-Belmont-Methuen.
    They appeal from the application judges order granting the Township a
    declaration that the placement on the appellants property of a trailer/recreational
    vehicle or any vehicle for the purposes of human habitation is a non-permitted
    use, and an injunction prohibiting the appellants from placing a trailer/recreational
    vehicle or any vehicle upon their property.

[2]

The order arises out of the Townships application under its
    Comprehensive Zoning By-Law No. 1995-42 (the By-Law) and its allegation that
    the appellants infringed s. 4.31 of the By-Law by placing a prohibited vehicle
    for temporary or permanent human habitation on their property.

[3]

Section 4.31 of the By-Law reads as follows:

S. 4.31

Prohibited Habitation and Storage of Goods,
    Materials, Animals or Equipment

No truck, bus, coach, cargo or freight container, recreational
    or any other type of trailer shall be used for either temporary or permanent
    human habitation, the keeping of animals, storage of goods, materials, ore,
    equipment, whether or not the same is mounted on wheels.

Human habitation, whether temporary or permanent, shall only be
    permitted in a dwelling unit located within a zone permitting residential uses;
    erected and used in accordance with this and all other by-laws of the
    Corporation.

[4]

The following definitions under s. 2 of the By-Law are relevant:

RECREATIONAL MOTOR HOME means a self-propelled vehicle
    designed for temporary or seasonal living, sleeping or eating accommodation,
    including a truck camper, but does not include a mobile home or recreational
    travel trailer as defined herein.

RECREATIONAL VEHICLE means any small vehicle used primarily
    for recreation, powered, propelled or driven otherwise than by muscular power.
    This definition shall include all-terrain vehicles, snowmobiles, hovercraft,
    amphibious vehicles and vehicles of a similar nature.

TRAILER means any vehicle designed to be towed by a motor
    vehicle.

TRAVEL TRAILER means a vehicular portable structure with the
    running gear intact that is not more than 2.6 metres (8.5 feet) wide and 12.5
    metres (41 feet) long and is designed for short-term occupancy to be used for
    travel, recreation and vacation.  This definition shall not include a mobile
    home or motor home.

[5]

The application judge interpreted s. 4.31 of the By-Law to include the
    vehicle depicted in the photographs taken by the Townships by-law inspector
    and produced in support of the Townships application. It is acknowledged that
    the vehicle falls within the By-Laws definition of a recreational motor
    home.  The application judge found that the connection of the appellants
    vehicle to the power line on the property was evidence of intended habitation
    despite finding no evidence of actual habitation. He granted the Townships
    application.

[6]

The appellants submit that the application judge erred in his
    interpretation of the By-Law, in his finding that the connection of the appellants
    motor home to the propertys power line was evidence of intended habitation, and
    in his overly broad order that prohibited the placement of any vehicle on the
    appellants property.

[7]

We agree.

[8]

First, it is clear from a plain reading of the By-Law, including its
    definitions, that recreational vehicles and motor homes are not included in s.
    4.31. Section 4.31 expressly prohibits the placement of any truck, bus, coach,
    cargo or freight container, recreational or any other type of trailer but not a
    motor home. The definitions under s. 2 cited above for recreational vehicle,
    trailer and travel trailer do not include recreational motor homes. Moreover,
    the Townships by-law inspector admitted on his cross-examination that the
    vehicle depicted in the photographs in support of the application was not a
trailer
but a
motor home
.

[9]

It was therefore not open to the application judge to conclude that
    [t]he overall appearance, structure [of the vehicle depicted in the
    photographs] is consistent with a vehicle built and intended for recreational
    use and therefore captured as being prohibited by the By-Law, when the
    unambiguous definitions of the By-Law and the unchallenged evidence of the Townships
    by-law inspector excluded the appellants vehicle.

[10]

Second,
    having accepted that human habitation goes beyond sleeping, eating, and
    executory functions, the application judge erred in determining that providing
    electrical power to the appellants motor home was consistent with intended
    habitation despite no evidence of actual habitation. There was no evidence of
    actual use beyond the appellants evidence that seasonally Mr. Kloosterman and
    his grandchildren might occasionally use the motor home for privacy in changing
    bathing suits or for its washroom facilities. These kinds of uses fall far
    short of human habitation.

[11]

Finally,
    the application judges order is overly broad. It goes beyond the scope of the
    By-Law and enjoins the placement on the appellants property of all vehicles,
    even cars, which are clearly not prohibited under the By-Law.

[12]

Accordingly,
    the appeal is allowed and the order is set aside.

[13]

As
    agreed, the appellants are entitled to their partial indemnity costs in the
    amount of $5,000 plus HST for the appeal and $8,000 plus HST for the
    application; both amounts include disbursements.

G.R. Strathy
    C.J.O.

M.L. Benotto
    J.A.

L.B. Roberts
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Heydari v. Ahmadi, 2018 ONCA 958

DATE: 20181128

DOCKET: M49721

Brown J.A. (Motion Judge)

BETWEEN

Yahya Heydari

Respondent (Moving Party)

and

Homa Ahmadi

Applicant (Responding Party)

Pathik Baxi and Ida Mirzadeh, for the moving party

Michael Stangarone and
    Stephen Kirby, for the responding party

Heard: November 22, 2018

REASONS FOR DECISION

OVERVIEW

[1]

In this family law litigation, the husband, Yahya Heydari, moves for:
    (i) an extension of time to file a notice of appeal from the final order of
    Justice Fletcher Dawson dated May 9, 2018 (the Final Order); (ii) a stay of
    the Final Order pending appeal; (iii) certain relief in regard to the matrimonial
    home in the event it is sold; and (iv) leave to file fresh evidence on the
    appeal.

[2]

The matrimonial home has now been sold. Pursuant to the order of Pardu
    J.A. made November 15, 2018, the net proceeds of the recent sale are being held
    in trust by the real estate solicitor acting on the sale pending disposition of
    this motion. As well, I informed Mr. Heydaris counsel that an application for
    fresh evidence must be brought before the panel hearing an appeal in accordance
    with s. 7.2.1 of this courts
Practice Direction Concerning Civil Appeals
.
    Accordingly, that leaves for determination the moving partys request for an
    extension of time to file a notice of appeal and a stay of the Final Order.

THE PROCEEDINGS BELOW

[3]

A history of this proceeding can be found in the lengthy reasons of
    Price J. dated April 26, 2018, reported at 2018 ONSC 2682.

[4]

Briefly, the parties were born in Iran. They were married in 2007 in
    Iran. At that time, Mr. Heydari lived in Calgary; Ms. Ahmadi lived in Iran. She
    immigrated to Canada in 2008.

[5]

Ms. Ahmadi assisted Mr. Heydari with his home renovation and re-sale
    business. Their only child tragically died less than a month after his birth in
    early 2013.

[6]

The parties separated in May 2016, whereupon Ms. Ahmadi commenced this
    application. She sought to set aside a marriage contract and obtain orders for
    spousal support and a net equalization payment.

[7]

As a result of Mr. Heydaris failure to comply with undertakings he gave
    on questioning and court orders directing that he provide answers to those
    undertakings, on April 26, 2018 Price J. struck out Mr. Heydaris pleadings
    (the Strike Pleadings Order). He ordered the matter to proceed to an
    uncontested trial the following month.

[8]

Mr. Heydari did not move to set aside the Strike Pleadings Order. Nor
    did he appeal it. Further, his Amended Notice of Motion and Draft Notice of Appeal
    do not indicate that he seeks an extension of time to appeal the Strike
    Pleadings Order.

[9]

Dawson J. heard the uncontested trial on May 9, 2018. His Final Order
    awarded Ms. Ahmadi: (i) lump sum spousal support in the amount of $248,734,
    payable upon the closing of the sale of the matrimonial home; (ii) an
    equalization payment of $26,887.64; (iii) costs of $35,000; and (iv) a
    restraining order against Mr. Heydari. As well, the Final Order directed the
    sale of the matrimonial home. Although title to the home was in the name of Mr.
    Heydari, the Final Order vested title in Ms. Ahmadis name to facilitate the
    sale and directed payment of the spousal support, equalization payment and
    costs out of the net sale proceeds.

[10]

As
    noted, the sale of the matrimonial home closed in mid-November and the real
    estate solicitor is holding the net sale proceeds in trust pending disposition
    of this motion.

[11]

On
    October 16, 2018, Mr. Heydari filed this motion to extend the time to file a
    notice of appeal from the Final Order and to stay that order.

[12]

If
    granted an extension of time, Mr. Heydari is prepared to deliver his notice of
    appeal within 10 days and perfect his appeal within 30 days.

ANALYSIS

[13]

The
    framework in which to assess Mr. Heydaris request for an extension of time to
    appeal is well known. Each case must be assessed on its own facts. A court
    ultimately must be guided by whether the justice of the case requires granting
    the extension. In reaching that decision, the court usually considers: (i)
    whether an appellant formed an intention to appeal within the relevant appeal
    period; (ii) the length of, and explanation for, the delay; (iii) prejudice to
    the respondent; and (iv) the merits of the appeal, specifically whether there
    is so little merit in the proposed appeal that the court could reasonably deny
    the important right of appeal:
Kefeli v. Centennial College of Applied Arts
    and Technology
(2002), 23 C.P.C. (5
th
) 35 (Ont. C.A.);
Issasi
    v. Rosenzweig
, 2011 ONCA 112, 277 O.A.C. 391; and
Duca Community
    Credit Union Limited v. Giovannoli
(2001), 142 O.A.C. 146 (C.A.).

Intention to appeal

[14]

Mr.
    Heydari was represented by several counsel prior to the Strike Pleadings Order.
    In his affidavit, he complains about poor or inadequate representation by most
    of them.

[15]

The
    Final Order was made on May 9, 2018. Mr. Heydari approached his current counsel
    on May 22, 2018 and retained him on June 6, 2018. A notice of change in
    representation was sent to opposing counsel that day.

[16]

Mr.
    Heydari deposes that it was not until opposing counsel sent his new counsel the
    Final Order on June 19 that he learned the result of the uncontested trial. Sometime
    in late June or early July he decided to appeal the Final Order, raised funds
    for counsel, and fully retained new counsel.

[17]

Although
    Mr. Heydari did not expressly advise opposing counsel or Ms. Ahmadi of his
    intention to appeal until mid-October when he filed this motion for an
    extension of time to file his notice of appeal, I am satisfied that service of the
    notice of change in representation signaled that he was contemplating an appeal
    of the Final Order as there was little other need for counsel to go on the
    record in this proceeding.

Explanation for the delay in
    bringing the motion to extend time

[18]

Notwithstanding
    his retainer of new counsel by June 6, 2018 and his knowledge of the Final
    Order no later than June 19, Mr. Heydari did not file his motion for an
    extension of time to appeal until October 16, 2018, some five months after the
    Final Order was made.

[19]

I
    find Mr. Heydaris explanation for the delay to be weak. He deposes that
    instead of moving for an extension of time to file an appeal, he focused his
    efforts on trying to amass the information required to answer the undertakings
    he had failed to fulfill prior to the Strike Pleadings Order. His affidavit
    discloses that he decided to pursue the following litigation strategy: put
    together belated answers to the undertakings; try to have that information
    admitted as fresh evidence on the appeal thereby indirectly setting aside the
    Strike Pleadings Order, which he has not appealed or moved to set aside; try to
    set aside the Final Order through an appeal and re-wind the litigation clock
    back to early 2018 by obtaining a new trial. As I read his affidavit, developing
    that strategy is how Mr. Heydari spent his time between June and October, 2018.

[20]

It
    is evident that Mr. Heydari did not spend the time readying his appeal for
    perfection. In response to my question during the motion hearing, his counsel
    advised that the appeal book and factum were not yet ready and Mr. Heydari
    requires a further 30 days to perfect his appeal.

[21]

Mr.
    Heydaris affidavit also discloses that he spent part of the summer trying to
    frustrate the operation of the Final Order, which had directed the sale of the
    matrimonial home and placed carriage of the sale solely in the hands of Ms.
    Ahmadi. To his affidavit Mr. Heydari attached an August 3, 2018 letter his
    accountant wrote to the Canada Revenue Agency Voluntary Disclosures Program. It
    is an extraordinary letter. In part, the letter contains information about Mr. Heydaris
    past income that raises very serious questions about the accuracy of the income
    he reported on his February 10, 2017 Form 13.1 Financial Statement. As well,
    his accountant drew the CRAs attention to the support dispute Mr. Heydari was
    having with Ms. Ahmadi, writing:

Due to legal impediments of my client, his ex-wife will sell
    his only material asset, [the matrimonial home], to satisfy spousal support
    payments. My client feels the support payments are warranted however dispute
    the actual amount of spousal payments, since up until recently, he was not
    aware he had unreported income from selling properties.

To complicate his unreported income with the CRA, the Superior
    Court of Justice in Ontario has a court order in favour of his former wife,
    [Ms. Ahmadi], to sell his
only
quantifiable material
    asset, which is the [matrimonial home].

This property is currently put up for sale by his ex-wife, and
    is currently on the market since mid-end of July 2018. Without such proceeds
    from the sale of said property, my client does not have any other material
    assets or enough potential income in future years to pay for such tax
    liabilities.

Mr. Heydari is in the process of filing a court motion to halt the
    sale of [the matrimonial home] and to prevent his ex-wife to use the sell
    proceeds. Mr. Heydari has advised me through his discussion with his lawyer
    that such motion might take 6-8 weeks and by that time, his ex-wife would have emigrant
    out of Canada with the proceeds. Mr. Heydari believes his ex-wife is a flight
    risk, given after the sale of [the matrimonial home], she would have no primary
    residential ties with Canada as her immediate family are in Iran.

To further prevent the erosion of proceeds leaving Canada and
    leaving Mr. Heydari with a significant unpayable tax liability,
Mr. Heydari has voluntary given consent to the CRA to
    put a lien of $1,017,126 (see Tax liabilities section for the calculation) as
    a form of security on his only material asset, [the matrimonial home]. This lein
    should be put in place immediately. Please be advised that Mr. Heydari is the
    sole and 100% owner of this property as proven in family court and through real
    estate title search.

Furthermore, the sale of [the
    matrimonial home] will create additional business income, and given the flight
    risk of Mr. Heydaris ex-wife, it would be in the best interest for the CRA to
    put a lien on this property.
[Emphasis in the original.]

[22]

From
    this letter I conclude that instead of using the time following the Final Order
    to prepare an appeal, Mr. Heydari spent his time trying to frustrate the
    provisions of the Final Order directing the sale of the matrimonial home. Accordingly,
    Mr. Heydaris explanation for his delay in bringing this motion to extend is
    quite weak, and I conclude that he has not pursued the preparation of his
    appeal with the requisite diligence.

Merits of the appeal

[23]

Mr.
    Heydaris draft notice of appeal offers little in the way of specifics about
    the errors he will submit taint the Final Order. The draft notice of appeal
    merely contains bald assertions that the trial judge misapprehended the
    evidence and made findings of fact unsupported by the evidence, without
    offering any specifics.

[24]

Mr.
    Heydaris counsel submits that while his client does not take issue with the
    quantum of the ordered spousal support, the trial judge erred in failing to
    explain why he ordered support payable in a lump-sum. As well, Mr. Heydari
    submits that the trial judges endorsement does not clearly explain how he
    reached certain conclusions.

[25]

I
    would note that the trial judges reasons do provide insight into how he
    reached his conclusion to make a lump-sum spousal support award. The trial
    judge wrote:

In terms of spousal support, I note the significant admissions
    that flow from the respondents failure to respond to a comprehensive Request
    to Admit. Entitlement to spousal support is established on more than one basis.
    As to quantum, I accept the evidence which supports the imputation of income
    that in turn supports the quantum of the spousal support sought. I accept that
    in the circumstances as described in the 23C affidavit, a lump sum is warranted
    in the amount proposed. This amount corresponds with a reasonable period of
    support based on the length of the marriage.

[26]

As
    well, para. 19 of Ms. Ahmadis 23C affidavit, referred to by the trial judge, summarizes
    the basis upon which she submitted that Mr. Heydari should pay her lump-sum
    spousal support in the amount of $253,201. From the award actually made, it is
    apparent the trial judge gave significant weight to that evidence. Further, as
    Ms. Ahmadis counsel argues, Mr. Heydaris disclosure of his accountants
    letter to CRA raises serious questions about whether he grossly understated his
    income on his Form 13.1 Financial Statement.

[27]

However,
    I am not satisfied that the grounds of appeal advanced by Mr. Heydari fail to
    meet the very low threshold of having so little merit as to deny the important
    right of appeal.

Prejudice to Ms. Ahmadi

[28]

One
    factor a court must take into account on a motion for an extension of time to
    file a notice of appeal is the prejudice to a respondent in granting an extension
    request.

[29]

The
    prejudice deposed to by Ms. Ahmadi is financial in nature. She states that she
    is in desperate need of funds. She spent her married life assisting her husband
    with his business. Ms. Ahmadi had been a teacher in Iran but is not qualified
    to teach in Ontario. Following the parties separation, Ms. Ahmadi completed coursework
    at the OREA Real Estate College. However, she has yet to earn any income
    through real estate. She deposes: (i) that the only income she received in 2017
    was $1,000 in spousal support; and (ii) she continued to receive $1,000/month
    in spousal support through April, 2018.

[30]

If
    Mr. Heydari is granted an extension of time to appeal, enforcement of some parts
    of the Final Order would be stayed automatically. The Final Order requires Mr. Heydari
    to pay Ms. Ahmadi $310,926.38 from the net sale proceeds of the matrimonial
    home, made up of the following amounts:

(i)

$248,734 in lump sum spousal support;

(ii)

$26,887.64 as an equalization payment;

(iii)

$304.74 in prejudgment interest;

(iv)

$35,000 in costs.

[31]

In
    the event an extension of time is granted to Mr. Heydari to file a notice of
    appeal, the automatic stay of a provision of an order for the payment of money
    under r. 63.01(1) would apply only to the amount of $62,192.38, comprised of
    items (ii), (iii) and (iv). Since r. 63.01(1) stipulates that the automatic
    stay does not apply to a provision that awards support or enforces a support
    order, granting Mr. Heydari an extension of time to appeal would not stay automatically
    the provision of the Final Order requiring payment of the lump sum support of
    $248,734.

[32]

Nor
    would it stay automatically the related provision in the Final Order directing
    payment of that amount from the net sale proceeds upon the closing of the sale
    of the [matrimonial home]. That provision falls within the language of r.
    63.01(1) of a provision that  enforces a support order.

[33]

As
    a result, in the absence of an order staying the spousal support provisions of
    the Final Order, granting Mr. Heydari an extension of time to file a notice of
    appeal would not prevent Ms. Ahmadi from obtaining immediately almost 80% of
    the money awarded to her out the net sale proceeds now held in trust.
    Accordingly, the financial prejudice to Ms. Ahmadi of granting Mr. Heydari an
    extension would be modest in proportion to the overall amount awarded by the
    Final Order.

Mr. Heydaris request for a stay

[34]

However,
    Mr. Heydari seeks to stay the payment of the $248,734 spousal support award
    from the net sale proceeds pending his appeal.

[35]

Whether
    one approaches Mr. Heydaris request through the lens of the standard test for
    a stay (
RJR-MacDonald Inc. v. Canada (Attorney General)
), [1994] 1
    S.C.R. 311) or by reversing the perspective applied on a request to lift an
    automatic stay (
SFC Litigation Trust v. Chan
, 2018 ONCA 710), in my
    view the result is the same  he is not entitled to a stay of the spousal
    support provisions of the Final Order because:

(i)

His grounds of appeal are weak;

(ii)

The only harm he might suffer if a stay is not granted is monetary. Even
    then, his disclosure to the CRA of substantial unreported income  which was
    not disclosed to the court prior to trial  suggests that the amount of the
    Final Order was lower than it might otherwise have been had Mr. Heydari
    disclosed his actual income; and

(iii)

The balance of convenience overwhelming favours not interfering with the
    no automatic stay policy regarding support orders as expressed in r.
    63.01(1). Mr. Heydari: (i) ignored court orders that he fulfill his
    undertakings; (ii) only paid spousal support when ordered to do so; (iii)
    delayed significantly in seeking an extension of time to appeal; and (iv)
    instead used that time to try to thwart the court-ordered sale of the
    matrimonial home and develop a litigation strategy to undermine, indirectly,
    the Strike Pleadings Order. I see no equity on Mr. Heydaris side of the
    ledger.

Summary

[36]

For
    those reasons, Mr. Heydari has not made out a case for a stay of the spousal
    support provisions in the Final Order. In that circumstance, after considering
    the justice of the case as a whole, I am satisfied that the prejudice Ms.
    Ahmadi may suffer from granting Mr. Heydari an extension of time to appeal is
    proportionately modest given her immediate entitlement to $248,734 of the net
    sales proceeds to satisfy the Final Orders award of spousal support. Although
    Mr. Heydaris grounds of appeal are weak, as is his explanation for his delay
    in seeking an extension of time, I am reluctant to deprive a litigant of his
    statutory right of appeal where the delay to appeal is five months.

[37]

Finally,
    in her factum Ms. Ahmadi submits that until Mr. Heydari obtains an order
    setting aside the Strike Pleadings Order, r. 1(8.4) of the
Family Law Rules
does not entitle him to participate in these proceedings in any way. I do not
    accept this submission as the
Family Law Rules
do not apply to an
    appeal in the Court of Appeal: r. 1(2).

DISPOSITION

[38]

Accordingly,
    I grant Mr. Heydari an extension of time to file a notice of appeal on the
    following terms:

(i)

He deliver his notice of appeal no later than 3 p.m. on Monday, December
    3, 2018; and

(ii)

He perfect his appeal no later than Thursday, December 20, 2018. Mr. Heydari
    did not include a draft certificate of evidence in his motion record, so I
    cannot determine whether he intends to rely on any transcripts. If he does, I
    suspect that not much transcription will be involved since the Final Order was
    made after an uncontested trial that proceeded largely on deemed admissions and
    affidavit evidence. In any event, if fixing this deadline for perfection
    necessitates paying for expedited transcripts, Mr. Heydari will have to bear
    that cost.

[39]

I
    dismiss Mr. Heydaris request for a stay of the Final Order. Further to para. 2
    of the order of Pardu J.A. made November 15, 2018, I direct that the real
    estate solicitor holding in trust the net proceeds from the sale of the
    matrimonial home release to Ms. Ahmadi, or her counsel at her direction, the
    sum of $248,734 in satisfaction of paras. 5 and 10(2)(a) of the Final Order.

[40]

Mr.
    Heydari does not seek costs in the event he succeeds on the motion. Ms. Ahmadi
    seeks substantial indemnity costs in the amount of $8,400 payable forthwith out
    of the net sale proceeds. Mr. Heydari submits that in the event Ms. Ahmadi
    succeeds on the motion, she should receive $2,000 in costs.

[41]

Although
    I have granted Mr. Heydari part of the relief he requested on the motion, I
    regard his litigation conduct with respect to this appeal as employing delay
    and attrition tactics too often seen in matrimonial litigation. His request for
    a stay of the spousal support provisions of the Final Order signals that he
    seeks to grind down Ms. Ahmadi, who lacks financial resources. When assessed
    against the backdrop of Mr. Heydaris attempts to thwart the sale of the
    matrimonial home, I regard his request for a stay of the payment of spousal
    support as a form of litigation misconduct. Such misconduct is to be
    discouraged, especially in matrimonial litigation.

[42]

Consequently,
    I award Ms. Ahmadi elevated, substantial indemnity costs of $8,400, as
    supported by her bill of costs. That amount is payable immediately out of the
    net sale proceeds of the matrimonial home held in trust.

David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Kahlon v. ACE
    INA Insurance, 2018 ONCA 906

DATE: 20181109

DOCKET: C64997

Lauwers, Huscroft and
    Trotter JJ.A.

BETWEEN

Kulwinder Singh Kahlon

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

and

ACE INA Insurance
,
Allstate Insurance Company of Canada
and Jevco Insurance Company

Defendant
    (
Respondent/Respondent by way of Cross-Appeal, Appellant
)

Sheldon A. Gilbert, Q.C., for the appellant

Joseph A. Cescon, for the respondent, Kulwinder Singh
    Kahlon

Patrick J. Monaghan, for the respondent, ACE INA
    Insurance

Heard: November 2, 2018

On appeal from the judgment of
    Justice Whitten of the Superior Court of Justice, with reasons reported at 2018
    ONSC 784, 141 O.R. (3d) 384.

By the court:

[1]

The court expressed several concerns to counsel about the appeal as
    presented and, after hearing their submissions, decided to adjourn the hearing
    of the appeal
sine die
to permit the parties to address the concerns,
    if so advised.

The Factual Context

[2]

Mr. Kahlons corporation, Kohuja Transport Inc., owned and leased a
    tractor to Bell City Transport Systems Incorporated. Mr. Kahlon operated it as
    an independent contractor for Bell City Transport under fleet insurance
    provided by ACE INA Insurance.

[3]

On May 24, 2011, Mr. Kahlon was in Florida operating the tractor with a
    trailer. He stepped out of the tractor when it was stopped in a line-up to
    determine the cause of the delay. He was struck by a Florida-based domestic
    vehicle operated by a member of the MacDonald family. Mr. Kahlon suffered
    serious injuries, including a traumatic brain injury. The insurance coverage
    available on the MacDonald vehicle was only $20,000, which was insufficient to
    cover the damages flowing from Mr. Kahlons injuries. The motion judge
    identified this as an obvious situation of underinsurance.

[4]

Mr. Kahlon had automobile insurance on his personal vehicle through
    Allstate Insurance Company of Canada. Both the Allstate policy and the ACE INA
    fleet policy had OPCF 44R Family Protection Coverage, which covers
    underinsurance.

The Decision under Appeal

[5]

The motion judge heard three motions under r. 21.01(1)(a) of the
Rules
    of Civil Procedure
. The parties effectively sought a determination as to
    whether either of Allstate or ACE INA were obliged to provide underinsurance
    coverage to Mr. Kahlon under the OPCF 44R endorsement in the respective
    policies.

[6]

The motion judge granted summary judgment to Mr. Kahlon and declared
    that Allstate was obliged to respond to his underinsured coverage claim. The
    motion judge declared that ACE INA was not obliged to respond.

[7]

Allstate appealed. Mr. Kahlon cross-appealed seeking coverage under the
    ACE INA policy.

Discussion

[8]

In a nutshell, this appeal involves the availability in Ontario of
    underinsured coverage to truck drivers like Mr. Kahlon. Allstates position is
    that a combination of the provincially prescribed language of its OPCF 44R
    endorsement and the provincially prescribed insurance policy for automobiles
    (OAP1), in particular, section 2.2.3, leads to the inescapable conclusion that truck
    drivers like Mr. Kahlon do not have underinsured coverage under their personal
    automobile policies for injuries they sustain as drivers of their trucks.

[9]

The argument advanced by Allstate could extend more broadly to drivers
    of other commercial vehicles and persons related to such drivers. There are
    likely thousands of people who would be affected by a ruling in favour of
    Allstates argument. The implications could be serious for such drivers and
    their families.

[10]

The
    parties are entitled to have their appeal decided; at the same time, however, courts
    are obliged to understand and take into account the context within which
    contractual interpretation will operate. The court has limited evidence before
    it about how Ontario-based truck drivers and other drivers of commercial
    vehicles obtain underinsured coverage, if in fact they do, and whether the
    interpretation urged by Allstate would have a surprising impact on Ontario
    insureds.

Disposition

[11]

Accordingly,
    the panel decided to give the parties the opportunity to enlarge the record, perhaps with expert evidence, in order to provide the court with the information and context necessary to reach a just outcome in this case. The appeal was adjourned sine die. If the parties prefer the court appoint amicus, they should advise the court. Otherwise the court requests the parties to develop a plan for responding to the court's concerns including timelines.

[12]

This
    panel is seized, and the progress of the case towards the next hearing date
    will be case-managed by Lauwers J.A. The first case-management conference call
    will be arranged by court staff for early December 2018.

Released: November 9, 2018

P.
    Lauwers J.A.

Grant
    Huscroft J.A.

G.T.
    Trotter J.A.