CITATION:
Harrison v. Burns, 2011
          ONCA 664

DATE: 20111024

DOCKET: C53515

COURT OF APPEAL FOR ONTARIO

MacPherson, LaForme and Epstein JJ.A.

BETWEEN

Tom Harrison and Michelle Harrison

Plaintiffs (Respondents)

and

Darin Burns

Defendant (Appellant)

Robert De Toni, for the appellant

Thomas W. Curran, for the respondents

Heard and released orally:
October 21, 2011

On appeal from the judgment of Justice Charles T. Hackland of
          the Superior Court of Justice dated March 1, 2011.

ENDORSEMENT

[1]

The appellant Darin Burns appeals from the judgment of Hackland J. of
    the Superior Court of Justice dated March 1, 2011 granting the respondents the
    right to continue their action in order to establish a claim provable in the
    bankruptcy of the appellant, granting summary judgment to the respondents in
    the amount of $424,500, and adjourning the issue of whether the judgment debt
    should be discharged under the
Bankruptcy and Insolvency Act
to the
    motions court.

[2]

The Harrisons entered into an agreement with Burns to build them a
    house.  During the course of building the house, the Harrisons paid Burns $424,500.
    The Harrisons alleged that Burns did not pay his subcontractors and suppliers
    with the money that they had given to him and started a court action in
    Ottawa.  Burns defended the action and brought a counterclaim.

[3]

Burns, who had by then moved to New Brunswick, subsequently made an
    assignment in bankruptcy in that province.  The bankruptcy proceedings had the
    effect of staying the Harrisons action against him.

[4]

The Harrisons then brought a motion in Ottawa, and not in bankruptcy
    court in New Brunswick, for leave to continue their action against Burns, for summary
    judgment against Burns, and for a declaration that the judgment would not be
    extinguished upon Burns discharge from bankruptcy.

[5]

The motion judge heard the motion, with counsel representing the
    Harrisons appearing in the court in Ottawa and Burns representing himself by
    telephone from New Brunswick.  He rendered a judgment in the terms of the first
    paragraph above.  He provided no reasons for his judgment.

[6]

The appellant appeals on several grounds, including that the motion
    judge erred in (1) finding that the court in Ontario had jurisdiction to hear
    the Harrisons motion given the appellants assignment in bankruptcy in New
    Brunswick, (2) granting leave to the Harrisons to continue their action against
    Burns in order to establish a claim provable in bankruptcy, (3) granting
    summary judgment for $424,500 without directing the trial of an issue, and (4)
    not providing any reasons for judgment.

[7]

In our view, the appeal can be resolved on the basis of the fourth
    issue.  In
R. V. Sheppard
, [2002] 1 S.C.R. 869 at para. 18, Binnie J.,
    quoting
Baker v. Canada (Minister of Citizenship and Immigration
, [1999]
    2 S.C.R. 817, said that in certain circumstances, the duty of procedural
    fairness will require the provision of a written explanation for the decision.

[8]

This is clearly one of those cases.  The serious jurisdictional issue in
    light of Burns bankruptcy in New Brunswick, the relationship between the
    Ontario action and the New Brunswick proceedings, and the fact that Burns was
    representing himself by telephone from New Brunswick, taken together, required
    that the motion judge provide an explanation for his decision.  He did not do
    so.

[9]

The appeal is allowed and the judgment below is set aside.  We observe
    that, with both parties now represented by counsel, the Harrisons are at
    liberty to bring a similar motion if so advised.

[10]

The appellant is entitled to his costs of the appeal fixed at $3000
    inclusive of disbursements and HST.

J.C. MacPherson
    J.A.

H.S. LaForme
    J.A.

G.J. Epstein
    J.A.


CITATION: Ireland v. Ireland, 2011 ONCA 623

DATE: 20111003

DOCKET: M40112,

M40133
(C53656)

COURT OF APPEAL FOR ONTARIO

Juriansz J.A. (In Chambers)

BETWEEN

Laticia Savannah Ireland

Applicant (Appellant in Appeal)

and

Gavin Paul Ireland

Respondent (Respondent in Appeal)

Robert
          Shawyer, for the applicant

Arnold
          Schwartz and Rachel Eynon, for the respondent

M. Pilch, for
          the Childrens Aid Society of Toronto and the Childrens Aid Society of
          Durham

N. Leeque, for
          the Attorney General of Ontario

Heard: September 8, 2011

On motions for the production of documents and for security of
          costs in an appeal from the order of Justice Jane Ferguson of the Superior
          Court of Justice dated April 7, 2011.

Juriansz J.A. (In Chambers):

[1]

This case involves resistance to the enforcement of a foreign custody
    order.  By judgment dated January 13, 2011, the Superior Court of Fulton County in the State of Georgia, USA (the Georgia court) granted sole legal and
    physical custody of the parties children to the respondent father. By order
    dated April 7, 2011, Ferguson J. of the Ontario Superior Court of Justice
    recognized and enforced the judgment of the Georgia court and the children, who
    were here in Ontario with the mother, have been returned to the fathers
    custody in Georgia. The applicant mother has appealed the decision of Ferguson
    J., seeking an order setting it aside and requiring that the respondent father
    return the children to the custody of the mother in Ontario.

[2]

The mother has brought a motion seeking an order compelling a number of
    third-party organizations in Ontario and Georgia to produce documents in their
    possession for the purpose of the appeal. The father opposes that motion and
    has brought a cross motion seeking security for costs. Counsel for the Childrens
    Aid Society of Toronto and the Childrens Aid Society of Durham and for the
    Attorney General of Ontario appeared on the mothers motion but took no
    position, other than to explain their clients would not produce the documents
    unless ordered to by the court. I would dismiss the mothers motion for
    production of documents and grant the fathers motion for security for costs of
    the appeal.

Background

[3]

The parties met in Ontario and married on May 26, 2001. They had two
    sons born in Ontario on July 29, 1999 and July 17, 2001. In July 2007, the
    family moved to Georgia. The parties separated sometime between June and August
    2009. The mother alleged that the father had physically abused her and the
    children, and that the paternal grandmother had sexually abused the children.

[4]

The Georgia court granted the mother an
ex parte
protective
    order, and then on September 11, 2009, the court issued a consent 12 month
    family violence protective order. The court found that acts of family violence
    did occur. The Georgia court awarded the mother temporary custody of the
    children, temporary child and spousal support, and restrained the father from
    any contact with the mother except as specified by the order. The consent order
    provided for supervised visitation by the father. The court noted that the
    parties had consented to the order by affixing their signatures to it.

[5]

After the mothers protective proceeding was consolidated with her
    petition for divorce, the Georgia court, on February 17, 2010, awarded
    temporary joint legal custody to the parties and physical custody to the
    mother. In its reasons, the Georgia court found that the minor children had
    witnessed domestic violence by the father while the parties were together, but
    found the mothers allegations of improper conduct toward the children by the paternal
    grandmother to be not credible. The Georgia court found there was no reason to
    deny the father access to his children and continued the fathers supervised
    visitation. The Georgia court also ordered temporary child and spousal support
    and stipulated that neither party remove the children from their school or from
    the jurisdiction of the Georgia court. At the same time, the court denied the
    mothers emergency motion to terminate the fathers visitation. The court found
    the mother in wilful contempt of the Courts Order in failing to make the
    children available to Father for his visitation, and added that the mothers manner
    of litigating the case has not resolved any issues but has unnecessarily
    expanded the proceedings such that the Courts ruling as to attorneys fees is
    reserved.

[6]

Claiming immigration problems, the mother left Georgia and returned with
    the children to Ontario in October 2010. She enrolled the children in school in
    Durham. She filed a complaint against the father with the Durham police
    regarding assaults alleged to have occurred between January 1999 and August
    2009. The police laid charges against the father.

[7]

Upon arriving in Ontario, the mother commenced proceedings in the Family
    Branch of the Superior Court of Justice in Oshawa, Ontario seeking custody of
    the children. In the affidavit supporting her application, she alleged that the
    father abused her verbally and physically, and that much of it was witnessed by
    the children. The mother withdrew her application after Scott J. issued an
    endorsement on October 21, 2010 that states, I have reviewed these pleadings.
    I do not see that the children are habitually resident here. A court action
    exists and is ongoing in the State of Georgia; in my view that is the Court
    with jurisdiction to deal with this matter. No order made here.

Custody Order in the State of Georgia

[8]

The mothers petition for divorce was heard in a final trial in the Georgia court on December 3, 2010. The mother did not attend but her counsel in Georgia did. In her decision issued January 13, 2011, Tuscan J. indicated that the Georgia court had made considerable effortto accommodate [the mothers] unexcused absence and although
    the court arranged to allow her to participate via Skype, she failed to locate
    a computer anywhere in the Toronto, Canada suburbs to access Skype. Tuscan J. issued
    a Final Judgment and Decree after stating that the mother had failed to
    present any evidence to establish that awarding her sole legal and physical custody
    of the children is in the best interest of the children.  Tuscan J. went on to
    award sole custody to the father saying:

Regrettably Petitioners actions have
    deprived the Court of the opportunity to assess her contributions to the
    marriage and child rearing by opting out of the process and secreting away with
    the children. Hiding behind allegations of abuse and destitution, she left her
    counsel to advocate on behalf of an absentee client. Her actions leave the
    Court no option but to award sole custody of the children to the Respondent.

[9]

Tuscan J. added, Hopefully, at some point in the future, Petitioner
    will be prepared to appear before the Court to address a custodial arrangement
    that permits both parents to be involved in the lives of their children.

[10]

The mother has not appealed the order of Tuscan J. and has not
    participated further in the Georgia proceedings.

[11]

By separate order, also dated January 13, 2011, Tuscan J. found the
    mother in wilful contempt for removing the children from the jurisdiction,
    ordered that the mother return to the jurisdiction of the Georgia court with
    the children, and granted the father the courts authorization to utilize any
    legal means to have the children return to his custody in Georgia where he has
    sole physical and legal custody of the children.

Ferguson J.s Decision to Enforce the
    Extra-Provincial Custody Order

[12]

On February 24, 2011, the mother filed an application in the Ontario
    Superior Court of Justice for custody of the children, child support, and a
    restraining order against the father. The mother, relying on ss. 22 and 23 of
    the
Childrens Law Reform Act
, R.S.O. 1990, c. C.12, took the position
    that the children would suffer serious harm if returned to the custody of the
    father because they had allegedly been subject to physical and emotional abuse
    at his hands throughout the parties relationship.

[13]

The father moved to have the order of Tuscan J. of the Georgia court recognized and enforced in Ontario pursuant to s. 41 of the
Childrens Law Reform
    Act
.

[14]

The two motions came before Gilmore J. on March 10, 2011. The mother
    requested an adjournment and applied for a change of venue from Oshawa to Toronto. The mother had not filed any supporting material, and her counsel got
    off the record that morning due to a difference of opinion between him and his
    client. Gilmore J. reluctantly adjourned the matter to March 24, 2011 on strict
    terms. The mother was to serve and file materials by March 18, 2011. Gilmore J.
    noted that the mother confirm[ed] that the Court having jurisdiction to hear
    this matter is the Superior Court of Justice, Family Branch at Oshawa, and
    ordered that the mother not bring any further motion to change venue. Gilmore
    J. stipulated that the matter was peremptory on the mother on the next return
    date. Finally, Gilmore J. observed that the mother has not dealt with this
    matter expeditiously and her motivation is in question given the outstanding
    Georgia Orders.

[15]

On March 24, 2011, the mother had failed to retain counsel and Ferguson
    J. of the Ontario Superior Court granted the mother a further adjournment until
    April 7, 2011. Ferguson J. emphasized that the matter would proceed on April 7.

[16]

On March 29, 2011, the mother re-filed her motion to change the venue of
    the hearing from Oshawa to Toronto. On April 3, the father responded by moving
    for an order finding the mother in contempt of Gilmore J.s March 10 order.

[17]

The mother retained counsel who, on March 31, wrote to the fathers
    lawyer seeking consent to an adjournment to mid May 2011. The fathers lawyer
    refused to consent.

[18]

All motions came on before Ferguson J. on April 7, 2011. Counsel for the
    mother requested an adjournment to mid May so she could properly prepare for
    the motion. Ferguson J. refused to adjourn the main motions, but adjourned the
    fathers contempt motion.

[19]

Counsel for the mother then applied to have her client give
viva voce
evidence. Ferguson J. adjourned until after the lunch hour so that the parties
    could consider their positions and make submissions on that application. Upon
    recommencing, counsel for the mother, without a proper affidavit and notice,
    again asked for an adjournment on the basis of newly learned information that
    the Durham Childrens Aid Society (DCAS) and Toronto Childrens Aid Society
    (TCAS) were involved in the matter. Ferguson J., querying how this could be
    last minute information, refused this second adjournment request. Ferguson J.
    also refused the application to provide
viva voce
evidence.

[20]

The motions proceeded and Ferguson J. recognized and enforced the Georgia courts orders. She ordered the mother to surrender the children to the father. The
    mother did not immediately comply.

[21]

On April 13, 2011, the children were reunited with their father.  They
    are now registered and attending school in Georgia.

[22]

The mother appeals Ferguson J.s enforcement of the Georgia order and,
    among other things, her decisions not to grant the adjournments and not to
    allow the mother to present
viva voce
evidence.

The Mothers Motion

[23]

Before me, the mother, who is now represented by different counsel,
    seeks an order compelling the following organizations to provide her with copies
    of all documents relating to her, the father, or the children:

·

The Childrens Aid Society of Toronto

·

Durham Childrens Aid Society

·

Owen Public School in Toronto

·

Durham Regional Police

·

Sandtown Middle School, Atlanta, Georgia, U.S.A.

·

Philip Randolph Elementary School, Atlanta, Georgia, U.S.A.

·

Georgia Division of Family and Children Services.

[24]

Counsel for the mother submits that I have jurisdiction to make the order
    under Rule 20(5) of the
Family Law Rules
, O. Reg. 114/99. That Rule
    provides:

The court may, on motion, order that a
    person (whether a party or not) be questioned by a party or disclose
    information by affidavit or by another method about any issue in the case, if
    the following conditions are met:

1. It would be unfair to the party who
    wants the questioning or disclosure to carry on with the case without it.

2. The information is not easily
    available by any other method.

3. The questioning or disclosure will
    not cause unacceptable delay or undue expense.

[25]

The
Family Law Rules
do not directly apply to this court. Rule
    1(2) provides that the Rules apply to family law cases in the Family Court of
    the Superior Court of Justice, the Superior Court of Justice, and the Ontario Court
    of Justice. However, s. 134(1) of the
Courts of Justice Act
, R.S.O., c.
    C.43, provides:

Unless
    otherwise provided, a court to which an appeal is taken may,

(a) make any order or decision that ought to or could have been made by
    the court or tribunal appealed from;

(b) order a new trial;

(c) make any other order or decision that is considered just.

[26]

By virtue of this section, I conclude that this court has jurisdiction
    to grant the requested order under Rule 20(5).

[27]

The mother bears the onus of establishing all three conditions of Rule
    20(5) are met. I am satisfied that the documents are not available by any other
    method, and I put aside the question of whether making the order would cause
    unacceptable delay or expense. The motion turns on the condition in Rule 20(5)1:
    whether it would be unfair to require the mother to carry on with the appeal
    without the documents.

[28]

The starting point for the analysis is to consider the context in which,
    and the purpose for which, the Rule is invoked. Whether it would be unfair to
    require the mother to carry on without the documents must be assessed in light
    of how she submits it would assist her in the appeal.

[29]

In her appeal, the mother relies on Article 13(b) of the
Hague
    Convention on the Civil Aspects of International Child Abduction
, 25
    October 1980, Hague XXVIII (the
Hague Convention
)

and s. 43 of
    the
Childrens Law Reform Act
to argue that Ferguson J. should not have
    enforced the Georgia order. In this motion, she submits that the requested
    documents will assist her in establishing that the childrens return to Georgia
    exposes them to the degree of harm from the father that makes those provisions
    applicable.

[30]

I conclude that it would not be unfair to require the mother to proceed without
    the documents for several of reasons.

[31]

First, the documents were not before Ferguson J. and the mother never
    requested Ferguson J. to make an order under Rule 20(5). The mother had ample
    opportunity to make the request before the motions came before Ferguson J. on a
    peremptory basis. Ferguson J. quite properly queried how this could be last
    minute knowledge, as surely [the mother] must have been instrumental in their
    involvement. This late motion for an order under Rule 20(5) is part of a
    pattern of the mothers conduct of the litigation. That pattern includes
    serving material late, seeking changes of venue, raising new issues suddenly without
    notice, requesting to give
viva voce
evidence after indicating in her
    motion material that the motion was to be decided on the basis of written
    material, requesting adjournments of peremptory dates, and failing to comply
    with court orders. As Gilmore J. observed on March 10, 2011, the mother has
    not dealt with this matter expeditiously and her motivation is in question.
    This echoed the remark made earlier by the Georgia court that the mothers manner
    of litigating did not help resolve issues, but rather unnecessarily expanded
    the proceedings. The mothers pattern of conducting the litigation has slowed
    and expanded the proceeding. As her failure to request the documents at the
    proper stage was very much part of her pattern of hampering the scheduled
    progress of the proceeding, I am satisfied that it would not be unfair to
    require her to carry on without them.

[32]

Second, if the documents were ordered produced now, the mother would
    have to make a fresh evidence application to have them admitted on the appeal.
    If the fresh evidence application is bound to fail, it would not be unfair to
    deny the mothers request for their production. Ordering production would
    simply delay and add expense to the processing of the appeal.

[33]

I am satisfied that the documents would not meet the test for the
    introduction of fresh evidence on appeal set out in
R. v. Palmer
, [1980] 1 S.C.R. 759
. They would not meet
    the first requirement of
Palmer
, because the mother could have requested
    them in a timely way by the exercise of due diligence and adduced them before
    the motion judge.

[34]

In addition, the documents would not meet the requirement of
Palmer
that the fresh evidence be reasonably capable of affecting the result. I am
    satisfied that this criterion is not met in this case. The mother is the source
    of the allegations put before the various organizations and her allegations about
    the fathers conduct relate to events that occurred before the parties
    separation. The mothers supporting material gives no reason to believe that any
    of the organizations have documents relating to the fathers conduct after the
    parties separated, and after the Georgia court made a protective order and
    supervised the fathers access to the children. I note that the Georgia court ordered that the supervisor of access make reports directly to the court.
    Counsel for the mother conceded that the only new allegations of conduct
    expected to be dealt with in the requested documents relate to the paternal
    grandparents who live in Canada. Obviously, the father did not have any access
    to the children after the mother removed them from Georgia.

[35]

In addition to its staleness, the requested documents would not affect
    the result for a more substantial reason. The documents do not assist the
    mother in establishing the degree of harm necessary to preclude an order
    returning the children to the jurisdiction where they were habitually resident
    at the time of the parties separation. The requested documents, taken together
    with the material in the record, do not address the presumption that the court
    in Georgia is able to protect the children from harm. Without establishing that
    the Georgia court is not able to protect the children, the mothers appeal of
    Fergusons J.s order enforcing the Georgia courts order cannot succeed. I discuss
    why that is so in determining the fathers motion for security for costs. The
    fathers motion requires me to consider more directly the merits of the
    mothers appeal. For the reasons given in that discussion, I am satisfied that
    the mothers fresh evidence application would fail because the documents, if admitted,
    are not reasonably capable of changing the result.

[36]

I conclude that the fresh evidence application will fail because the
    documents could have been requested at the motion by the exercise of due
    diligence, and moreover, the documents, when taken with the other material in
    the record, are not reasonably capable of affecting the result. Therefore, in
    applying Rule 20(5), it would not be unfair to require the mother proceed to
    the appeal without documents that are not going be admitted on the appeal.

[37]

I have ignored additional difficulties with the mothers application. For
    example, counsel did not explain how this courts order that organizations
    outside Ontario produce documents would be enforced, or whether the Georgia
    court would enforce an order for the childrens return given that the Georgia court
    has jurisdiction to determine the custody of the children.

[38]

The mothers motion for an order requiring production of documents is
    dismissed.

The Fathers Motion

[39]

The father seeks security for costs. Rule 38(26) of the
Family Law
    Rules
applies:

On a motion by the
    respondent for security for costs, the court may make an order for security for
    costs that is just, if it is satisfied that,

(a) there is good reason to believe that the appeal is a waste of time, a
    nuisance, or an abuse of the court process and that the appellant has
    insufficient assets in Ontario to pay the costs of the appeal;

(b) an order for security for costs could be made against the appellant
    under subrule 24 (13); or

(c) for other good reason, security for
    costs should be ordered.

[40]

The mother has insufficient assets in Ontario to satisfy a costs order.
    The only question in this case is whether the appeal is a waste of time, a nuisance
    or an abuse of the court process. The mother argues that security for costs
    should be ordered in a custody case only in exceptional circumstances. Whether
    that is so, this is not a custody case. The mother is resisting the enforcement
    of a foreign custody order. If she wishes to contest the custody order, she
    should do so in the court that has jurisdiction to determine custody. In any
    event, allowing an appeal that is truly devoid of merit to proceed does not
    serve the best interests of the children.

[41]

The mother raises a number of procedural grounds of appeal. She submits
    that Ferguson J. erred by refusing her requests for adjournments and refusing
    to allow the mother to call
viva voce
evidence. These discretionary
    decisions were made on a second peremptory appearance and in a case where there
    were already earlier judicial pronouncements that the mother was hindering the
    proceedings. I am satisfied that the appeal, insofar as it attacks the procedural
    decisions of Ferguson J., will not be successful.

[42]

The mothers substantive ground of appeal is that Ferguson J. should
    have given effect to Article 13(b) of the
Hague Convention
and refused
    to enforce the Georgia courts order.

[43]

Article 13(b) of the
Hague Convention
, upon which the mother
    relies, does not directly apply to the proceedings. Article 13(b) provides:

Notwithstanding the provisions of the preceding Article, the judicial or
    administrative authority of the requested State is not bound to order the
    return of the child if the person, institution or other body which opposes its
    return establishes that:

b)
there is a
    grave risk that his or her return would expose the child to physical or
    psychological harm or otherwise place the child in an intolerable situation.

[44]

As can be seen, Article 13(b) constitutes an exception to the obligation
    of a requested state to order the return of the abducted child. In this case,
    there was no request for the return of the child under the
Hague Convention
.
    The fathers motion was to enforce the order of the Georgia court under s. 41
    of the
Childrens Law Reform Act
. He did not invoke the
Hague
    Convention
. The Supreme Court of Canada in
Thomson v. Thomson
,
    [1994] S.C.J. No. 6 at para. 93 made it clear that domestic legislation and the
Hague Convention
operate independently of one another.

[45]

In any event, the mother can rely on s. 43 of the
Childrens Law
    Reform Act
. Section 43 provides:

43.  Upon application, a court by order may supersede an extra-provincial
    order in respect of custody of or access to a child if the court is satisfied
    that the child would, on the balance of probability, suffer serious harm if,

(a) the child remains in the custody of the person legally entitled to
    custody of the child;

(b) the child is returned to the custody of the person entitled to custody
    of the child; or

(c) the child is removed from Ontario.

[46]

Decisions of the lower courts are conflicting as to whether the
Childrens
    Law Reform Act
applies when the states involved are signatories to the
Hague
    Convention
. In my view, the rationale of the
Thomson
case  that the
    two regimes operate independently  leads to the conclusion that the mother can
    invoke s. 43. In any event, as the court stated in
Thomson
at para. 93,
    in cases involving domestic legislation it may not be improper to look at the
    Convention in determining the attitude that should be taken by the courts and at
    para. 79, that the inconsistencies between the Convention and the [Manitoba] Act
    are not so great as to mandate the application of a significantly different
    test of harm. The Manitoba provision before the court in
Thompson
is in
    substance much the same as Ontarios s. 43.

[47]

Using this approach, the level of harm required under s. 43 of the
Childrens
    Law Reform Act
in an international custody dispute is not different in
    substance from the test under Article 13(b) of the Convention. Under Article
    13(b), the harm must be of a degree that would amount to an intolerable
    situation: see
Thomson
, at para. 80; see also
Jabbaz v. Mouammar
(2003), 226 D.L.R. (4
th
) 494 (Ont. C.A.);
Friedrich v. Friedrich
,
    78 F.3d 1060 (6th Cir. 1996);
Re A. (A Minor) (Abduction)
, [1988] 1
    F.L.R. 365 (Eng. C.A.).

[48]

In assessing whether a situation is intolerable, it must be presumed
    that the court with jurisdiction to determine what is in the best interests of
    the children is equipped to make, and will make, suitable arrangements for the
    children's welfare: see
Fi
nizio v. Scoppio-Finizio
(2000), 46
    O.R. (3d) 226 (C.A.) at para. 34, citing with approval
Medhurst v. Markle (
1995),
    17 R.F.L. (4th) 428 at 432 (Ont. Gen. Div.). MacPherson J.A. writing for this
    court in
Finizio
quoted from the decision of the English Court of Appeal
    in
C. v. C. (Abduction: Rights of Custody),
[1987] 1 W.L.R. 654 (C.A.) at
    p. 664, in which Lord Donaldson of Lymington M.R. said:

It will be the concern of the court of
    the State to which the child is to be returned to minimize or eliminate this
    harm and, in the absence of compelling evidence to the contrary or evidence
    that it is beyond the powers of those courts in the circumstances of the case,
    the courts of this country should assume that this will be done. Save in an
    exceptional case, our concern, i.e., the concern of these courts, should be
    limited to giving the child the maximum possible protection until the courts of
    the other country -- Australia in this case -- can resume their normal role in
    relation to the child.

[49]

The threshold for the application of s. 43 of the
Childrens Law
    Reform Act
is a high hurdle. The mothers record in this appeal contains no
    evidence that even attempts to address the presumption that the Georgia court
    is well able to assess any and all information regarding the best interests of
    the children and protect them from harm. I am satisfied that without such
    evidence, the mothers appeal is doomed to fail.

[50]

If anything, the record indicates that the Georgia courts ability to consider
    the best interests of the children is hampered only by the mothers failure to
    participate in the proceedings before the Georgia court. I note that Tuscan J.
    of the Georgia court has left the door open for the mother to participate in
    the custodial arrangements for the children. She said, Hopefully, at some
    point in the future, Petitioner will be prepared to appear before the Court to
    address a custodial arrangement that permits both parents to be involved in the
    lives of their children.

[51]

I regard the mothers appeal to be meritless and, consequently, a waste
    of time within the meaning of Rule 38(26) of the
Family Law Rules
. The
    mother has exhibited a pattern of delaying and expanding litigation. That
    pattern will add to the expense that must be borne by the father in responding
    to this meritless appeal. The mothers motion for the production of documents
    dealt with above is an apt example of how the mothers manner of litigating
    increases the expense of the process. In my view, this is one of those cases in
    which an order for security for costs is appropriate. I order that the mother
    provide security for costs in the amount of $10,000.00 within 30 days, failing
    which the father may move for dismissal of the appeal.

Conclusion

[52]

For these reasons, the mothers motion is dismissed and the fathers
    motion is granted. The parties may make submissions in writing as to costs. The
    submissions are not to exceed 5 pages. The mothers submissions are to be
    served and filed by October 10, and the fathers by October 17.

RELEASED: October 3, 2011                                                                    R.G.
    Juriansz J.A.


CITATION:
Khan v. Sun Life Assurance Company of
          Canada, 2011 ONCA 650

DATE: 20111018

DOCKET: C53307 ( M40570)

COURT OF APPEAL FOR ONTARIO

Doherty, Weiler and Cronk JJ.A.

BETWEEN

Shabbir Khan

Plaintiff (Appellant)

and

Sun Life Assurance Company of Canada

Defendant (Respondent)

Michael Kelly and Sabrina Singh, for the appellant

K. Michael McLoughlin, for the respondent

Heard:
October 14, 2011

On appeal from the order of Justice
          M. D. Parayeski, of the Superior Court of Justice, dated January 20, 2011.

APPEAL BOOK ENDORSEMENT

[1]

We see no basis on which to interfere with the motion judges
    discretionary decision to dismiss the appellants action on the basis of
    delay.  At the status hearing, which was originally requested by the appellant,
    the appellant bore the burden of demonstrating that there was an acceptable
    explanation for the involved litigation delay and that, if the action was
    allowed to proceed, the respondent would suffer no non-compensable prejudice.

[2]

On this record, the appellant failed to meet either branch of this
    test.  Based on the affidavit materials filed on behalf of the appellant, it
    was open to the motion judge to conclude that no plausible explanation for the
    appellants delay in proceeding with the action had been advanced.  There was
    evidential support for the motion judges finding that insofar as the appellant
    and his counsel were concerned, this file has simply been ignored.

[3]

Further, the motion judge made no error in concluding that the appellant
    had also failed to demonstrate the absence of prejudice to the respondent, at
    least in respect of the appellants claim for long-term disability benefits.
    Moreover, counsel for the appellant made no suggestion before the motion judge
    that the appellants short-term and long-term disability benefits claims could
    or should be severed.

[4]

The appeal is therefore dismissed.

[5]

The appellant also seeks leave to appeal the motion judges adverse
    costs award.  We see no error in principle in the motion judges costs
    decision, nor is it plainly wrong.  Accordingly, leave to appeal costs is
    denied.

[6]

The respondent is entitled to its costs of this appeal and of the motion
    for leave to appeal costs, fixed, as agreed by counsel, in the aggregate sum of
    $7,500, inclusive of disbursements and all applicable taxes.


CITATION:
Kobes Nurseries Inc. v. Convery, 2011 ONCA
          662

DATE: 20111021

DOCKET: C53046

COURT OF APPEAL FOR ONTARIO

MacPherson, LaForme and Epstein JJ.A.

BETWEEN

Kobes Nurseries Inc.

Plaintiff (Respondent)

and

Darren Convery
and 1553022 Ontario Limited

Defendants (Appellant)

Umberto Sapone, for the appellant

Barry J. Carmichael, for the respondent

Heard and released orally:
October 19, 2011

On appeal from the the judgment of Justice Peter D. Lauwers of
          the Superior Court of Justice dated November 24, 2010.

ENDORSEMENT

[1]

The appellant Darren Convery appeals from the judgment of Lauwers J.
    dated 24 November 2010 finding Mr. Convery personally liable to pay the
    invoices of the respondent Kobes Nurseries Inc. totalling $78,798.25.

[2]

The appellant submits that the trial judge made a palpable and
    overriding error in finding that, as of 21 July 2008, the respondents
    contractual relationship was with Mr. Convery personally and not with the
    defendant numbered company.

[3]

We do not accept this submission.  The trial judges review of the
    conversations over the years between Mr. Convery and Mr. Kobes and of the
    relevant documentation passing between the parties, including fax transmissions,
    invoices and cheques, strongly support his conclusion that Mr. Convery did not
    bring home to the plaintiff the fact that the status under which he was
    carrying on business had changed from that of sole proprietorship to a
    corporation ...[T]he plaintiff has proven on the balance of probabilities that
    its contractual relationship was with Darren Convery personally and not with
    the numbered company.

[4]

The appeal is dismissed with costs to the respondent fixed at $5000,
    inclusive of disbursements and HST.

J.C. MacPherson
    J.A.

H.S. LaForme
    J.A.

G.J. Epstein
    J.A.


CITATION:
L-Jalco Holdings
          Inc. v. Marino, 2011 ONCA 639

DATE: 20111012

DOCKET: C53387

COURT OF APPEAL FOR ONTARIO

Doherty, Weiler and Simmons JJ.A.

BETWEEN

L-Jalco Holdings Inc.

Plaintiff (Appellant)

and

Gregory Joseph Marino and Joseph Marino

Defendants (Respondents)

Glenn E. Cohen, for the appellant

Gregory Sidlofsky, for the respondents

Heard:
October 11, 2011

On appeal from the order of Justice
          Paul Perell of the Superior Court of Justice, dated January 31, 2011.

APPEAL BOOK ENDORSEMENT

[1]

The real issue in this appeal is whether the respondents were privies to
    the decision against the elder Marinos and therefore entitled to rely on the
    judgment refusing to reopen the foreclosure.

[2]

The appellant concedes that the respondents were necessary parties to
    the prior foreclosure proceeding against the elder Marinos but says that they
    are not privies because they are independent debtors. He says that they do not
    have a community of interest with the elder Marinos because the issues decided
    against them were not fundamental to the respondents liability.

[3]

We disagree.  Perell J. analyzed the question of privity at paras. 56-63
    of his reasons. We are in substantial agreement with his analysis of the
    particular circumstances of this case. In our opinion he correctly determined
    the issue of privity and therefore correctly held that issue estoppel applied
    against L-Jalco.

[4]

Accordingly, the appeal is dismissed.  The respondents are entitled to
    the costs of the appeal fixed in the amount of $10,000 inclusive of all
    applicable taxes and disbursements.


CITATION:
Lindhorst v. Stone &
          Co. Limited, 2011 ONCA 657

DATE: 20111019

DOCKET: C53408

COURT OF APPEAL FOR ONTARIO

OConnor A.C.J.O., Juriansz and Watt JJ.A.

BETWEEN

Alvin Lindhorst

Appellant (Plaintiff)

and

Stone & Co. Limited, Stone Investment Group,
          Richard G. Stone and James A. Elliott

Respondents (Defendants)

Alvin Lindhorst, appearing in person

Allison Taylor, for the respondents

Heard and released orally:
October 17, 2011

On appeal from the order of Justice
          Whitaker of the Superior Court of Justice dated December 24, 2010.

ENDORSEMENT

[1]

This is an appeal from the order of Whitaker J. dated December 24, 2010,
    dismissing the appellants appeal from three orders of Master Short.  Those
    orders required the appellant to give particulars of allegations in his amended
    statement of claim, adjourned the appellants motion for production and
    directed the appellant to pay for a transcript.

[2]

The orders appealed are interlocutory.  This court does not have
    jurisdiction to hear this appeal.  The proper route of appeal from the order of
    Whitaker J. was to the Divisional Court with leave.

[3]

To be clear, this appeal did not purport to appeal the order of Master
    Short dated January 26, 2011.  In any event, the proper route for an appeal of
    that order would have been to a Superior Court judge.

[4]

In the result, the appeal is quashed.  Costs to the respondents fixed in
    the amount of $1,500, inclusive of disbursements and all applicable taxes.

OConnor A.C.J.O.

R.G. Juriansz J.A.

David Watt J.A.


CITATION:
Macdonald v. Canadian
          Broadcasting Corporation, 2011 ONCA 652

DATE:  20111019

DOCKET: C50795

COURT OF APPEAL FOR ONTARIO

Winkler C.J.O., Sharpe J.A. and Cunningham A.C.J. (
ad hoc
)

BETWEEN

Ian Verner Macdonald

Plaintiff (Appellant)

and

Canadian Broadcasting Corporation and Warren Kinsella

Defendants (Respondents)

Douglas H. Christie, for the plaintiff (appellant)

Scott C. Hutchison and Brennagh Smith, for the defendants (respondents)

Heard and orally released:
September 30,
          2011

On appeal from the judgment of Justice Métivier of the Superior
          Court of Justice dated June 25, 2009.

ENDORSEMENT

[1]

We are of the view that the trial judge was correct in concluding the
    action was statute barred.  Section 5(1) of the
Libel and Slander Act
provides that a plaintiff provide notice within six weeks after an alleged
    libel has come to the plaintiffs attention and the onus lies with the
    plaintiff to show compliance.  Here, although the appellant did not see the
    actual broadcast of April 19, 1996 until the end of August or perhaps early
    September, it is sufficient that the appellant could reasonably have known of
    the libel.  Actual knowledge does not have to be demonstrated.

[2]

In the present case, the appellant, according to the evidence, was, and
    certainly should have been, reasonably certain about what the respondent,
    Kinsella, probably said based upon their history of public opposition.  When,
    in May 1996, the appellant learned from Paul Frohm, who ultimately provided the
    tape, the gist of what had been said and that the broadcast had taken place, he
    was under a duty to act diligently to ascertain the relevant facts.  He did not
    and offered no explanation as the trial judge found.  We agree.  The onus was
    not discharged and his claim was properly dismissed.  The trial judge, on the
    evidence, was justified in finding that the appellant was conveniently vague on
    key issues and in drawing an adverse inference concerning his lack of
    diligence.  Without question, the appellant ought to have known far in advance
    at the time he acquired actual knowledge.  The evidence clearly demonstrates
    the appellants lack of diligence in the summer of 1996.  Because of our
    conclusion with respect to the issue of notice, it is unnecessary for us to
    deal with the other issues raised.

[3]

The appeal is dismissed.

[4]

Costs will be at $25,000, all inclusive.

W. Winkler C.J.O.

Robert Sharpe J.A.

Cunningham A.C.J.
ad
    hoc


CITATION:
McQueen v. Echelon General Insurance
          Company, 2011 ONCA 649

DATE: 20111018

DOCKET: C51165

COURT OF APPEAL FOR ONTARIO

Gillese, Armstrong and Karakatsanis JJ.A.

BETWEEN

Janey McQueen

Plaintiff (Respondent)

and

Echelon General Insurance Company

Defendant (Appellant)

Jamie R. Pollack and Daniel M. Himelfarb, for the appellant

Jane Poproski, for the respondent

Heard: August 25, 2011

On appeal from the judgment of Justice C. Raymond Harris of
          the Superior Court of Justice dated September 28, 2009, with reasons reported
          at [2009] I.L.R. I-4890.

Gillese J.A.
:

[1]

Janie McQueen (Ms. McQueen or the
    plaintiff) was injured in a rollover motor vehicle accident on January 31,
    2004.  Her vehicle was destroyed in the accident.

[2]

At the time of the accident, Ms.
    McQueen was 35 years old and unemployed. She had been receiving benefits under
    the Ontario Disability Support Program for 10 years.  She had two children,
    then aged 14 and 20.  She lived with her husband and daughter, Chelsi, the
    younger of the two children.

[3]

Following the accident, Ms.
    McQueen suffered from a significant number of physical and psychological
    problems, including chronic pain, difficulty walking and lifting, jaw pain,
    anxiety related to driving, and memory loss. She saw a number of physicians, in
    addition to her own family doctor, Dr. Picketts, in the years following the
    accident.

[4]

Ms. McQueen applied for statutory accident benefits from her insurer,
    Echelon General Insurance Company (Echelon or the appellant).  She received
    very limited benefits from Echelon.

[5]

From January 31, 2004, (the date of the accident) to July 30, 2004,
    Echelon gave Ms. McQueen approximately $43 per week for housekeeping expenses.
    This amount was for six hours of housekeeping at the rate of $7.15 per hour.

[6]

During that same time period, Echelon arranged for Ms. McQueen to have a
    direct account with a taxi company, which she could use for travel to her various
    medical appointments.

[7]

In May 2004, Echelon received a disability certificate from Dr. Picketts
    in which he stated that Ms. McQueen suffered from a complete inability to
    carry on a normal life  that is, that Ms. McQueen was substantially disabled
    from performing her pre-accident housekeeping tasks.

[8]

As a result of having received the disability certificate, Echelon hired
    Ms. Lori Foster, an occupational therapist, to attend at Ms. McQueens home and
    conduct an assessment.  Ms. Foster conducted the assessment in June 2004 and
    prepared a report, dated July 14, 2004.
[1]
Among her findings, Ms. Foster noted that Ms. McQueen had difficulty performing
    various household tasks.  Ms. Foster recommended that Ms. McQueen continue to
    receive housekeeping assistance for six hours per week.

[9]

In her report, Ms. Foster said this in respect of Ms. McQueens
    transportation needs:

Ms. McQueens home is currently not on a bus
    route.  As such, she would be required to walk to a main street (at least 3
    blocks) to access the nearest bus stop.  Given the location of Vitality Health
    Care [where Ms. McQueens physiotherapist was located], the client would also
    be required to make a transfer to a different bus to attend her appointments.

Based upon the clients limited tolerance for
    walking, decreased balance, increased level of fatigue, difficulty with stairs
    and the opinion of Dr. Lin, it is this therapists opinion that the client
    would experience difficulty taking a bus to/from her appointments at Vitality
    Health Care.

[10]

In July 2004, Echelon retained Dr. Kwok, an orthopaedic surgeon, to examine
    Ms. McQueen.  Echelon did not give Dr. Kwok a copy of Ms. Fosters report.

[11]

Dr. Kwok wrote a report dated July 23, 2004, in which he stated that Ms.
    McQueen was capable of conducting her own housekeeping, was not disabled from driving
    a motor vehicle and was able to take public transportation.

[12]

After receiving Dr. Kwoks report, Echelon immediately stopped paying
    Ms. McQueen housekeeping and transportation benefits.

[13]

Ms. McQueen requested, and Echelon sought, the advice of an independent
    medical occupational therapist.  That therapist advised that Ms. McQueen
    required assistance with her housekeeping but that an in-home assessment should
    be performed first.  Echelon told Ms. McQueen that the assessment would cost
    $620.11 but it refused to pay for the assessment because it was not reasonable
    and necessary.

[14]

Despite Ms. McQueens repeated entreaties for the SABS benefits, and the
    provision of additional medical documentation showing that she needed them, Echelon
    refused to reinstate the benefits.  The trial judge found that in a three-year
    period, Ms. McQueen received 21 denials for 16 separate benefits.

[15]

After Echelon refused to give Ms. McQueen transportation benefits, she went
    to Operation Lift, a bus service for people that are disabled or in a
    wheelchair or walkers.  She was tested, passed its criteria as being disabled
    enough to use the service and was told she could begin using the service
    immediately.  She attempted to use it but without success because the bumpy,
    rough ride caused her pain.

[16]

Ms. McQueen visited a number of medical specialists who requested that
    she undergo various assessments.  Three such assessments are of concern in this
    appeal: 1) a psychological and neurological assessment by Dr. Gouws at a cost
    of $2,259.91; 2) a neurological assessment by Dr. McComas at a cost of $1,391.52;
    and 3) the previously mentioned in-home assessment by Ms. Dyk, an occupational
    therapist, at a cost of $620.11.

[17]

The first two assessments were recommended by a number of physicians.

[18]

Echelon refused to pay for any of the assessments.

[19]

Ms. McQueen filed two separate Statements of Claim in which she alleged
    that Echelon had breached various provisions of the
Statutory Accident
    Benefits Schedule  Accidents on or after November 1, 1996,
O. Reg. 403/96
    (SABS) by refusing to pay her certain SABS benefits.  She also alleged that
    Echelon caused her mental distress and engaged in bad faith conduct, and she sought
    aggravated, punitive and exemplary damages.

[20]

In a lengthy and comprehensive report dated March 23, 2007, Dr. Dinesh
    Kumbhare, a physiatrist, concluded that Ms. McQueen suffered from chronic pain
    and that her prognosis for recovery was guarded.

[21]

At trial, Ms. McQueen testified on her own behalf.  Ms. Laurie Walker,
    an independent insurance claims adjuster, testified for Echelon.

[22]

Following a seven day trial in May 2009, the trial judge issued a judgment
    dated September 28, 2009, as amended on November 25, 2009 (the Judgment), in
    which he awarded Ms. McQueen:

·

$7,800 for housekeeping benefits, calculated at $100/week
    for 78 weeks following the period for which Echelon had
    already paid;

·

$7,500 for transportation benefits;

·

$4,271.54 for the three s. 24 assessments;

·

$25,000 for mental distress; and

·

interest on the first three awards.

[23]

Echelon appeals.  It challenges all but the interest award.

[24]

Echelon raised some fifty grounds of appeal.  The essence of the alleged
    errors in respect of each head of damages is as follows.  In ordering housekeeping
    and transportation benefits, Echelon says the trial judge erred because the plaintiff
    failed to establish entitlement to, and the quantum of, the benefits awarded.
    In respect of the s. 24 assessments, Echelon submits that the trial judge erred
    by failing to properly weigh all of the evidence relating to whether the
    recommended assessments were reasonable.  As for the award for mental distress,
    apart from alleging numerous errors in findings of fact, Echelon makes a number
    of submissions as to why the trial judge lacked jurisdiction to make such an
    award.

[25]

For the reasons that follow, I would dismiss the appeal, with the
    exception of ordering a variation in the amount awarded for transportation
    benefits.

THE ISSUES

[26]

The issues raised in this appeal are whether the trial judge erred in ordering
    Echelon to pay Ms. McQueen:

(a)    housekeeping benefits of $7,800;

(b)    transportation benefits of $7,500;

(c)    the cost of the three s. 24 assessments of
    $4,271.54; and

(d)    damages for mental distress of $25,000.

ANALYSIS

1.         The Housekeeping
    Benefits

[27]

Entitlement to a housekeeping and home maintenance benefit is governed
    by s. 22 of SABS.  The relevant parts of s. 22 read as follows:

22.
(1)  The insurer shall pay for
    reasonable and necessary additional expenses incurred by or on behalf of an
    insured person as a result of an accident for housekeeping and home maintenance
    services if, as a result of the accident, the insured person sustains an impairment
    that results in a substantial inability to perform the housekeeping and home
    maintenance services that he or she normally performed before the accident.

(2)  The amount payable under this section
    shall not exceed $100 per week.

[28]

The trial judge was fully alive to the requirements in s. 22 and to fact
    that Ms. McQueen was required to prove both her entitlement to, and the quantum
    of, SABS benefits on a balance of probabilities.

[29]

There was ample evidence in the record that Ms. McQueen was substantially
    unable to perform the housekeeping and home maintenance services that she had
    performed prior to her accident.  The evidence included her testimony, the disability
    certificate that Dr. Picketts had prepared, Ms. Fosters in-home assessment and
    Dr. Kumbhares report.  Indeed, Echelon provided Ms. McQueen with housekeeping
    benefits until discontinuing the benefit, based on Dr. Kwoks assessment.  In
    discontinuing such benefits, it acted against the recommendations of its own
    occupational therapist, Ms. Foster, who had attended at Ms. McQueens home,
    conducted an assessment and found that Ms. McQueen had difficulty performing
    housekeeping tasks.  The trial judges finding that Echelon failed to give Dr.
    Kwok a copy of Ms. Fosters report is worthy of note.

[30]

Ms. McQueen testified that after the accident she was bedridden for two
    months and her husband had to leave his employment to take care of her, their
    teenaged daughter and the household generally.  Prior to the accident, Ms.
    McQueen did the cooking, house cleaning, shopping and the like.  After the
    accident, she could no longer cook meals, clean bathrooms, change bedding or do
    any heavy cleaning  - her husband and daughter had to do virtually all of the
    housekeeping.

[31]

The trial judge was entitled to accept Ms. McQueens evidence that she
    was unable to perform virtually all aspects of the housework that she had
    performed prior to the accident.  He was also entitled to reject Dr. Kwoks
    report on the matter.  It is significant in this regard that the trial judge found
    as a fact that Dr. Kwoks assessment was made after a 30 minute, superficial
    examination and without reference to the occupational therapy report or the neurological
    and psychiatric testing that Dr. Kwok himself recommended.

[32]

Although Ms. McQueen did not have particularized receipts for the housekeeping
    services that were provided, in my view, this does not disentitle her to housekeeping
    benefits.  It would be an absurd result and unfair to allow only those
    persons who could pay for services in advance to be allowed to recover for
    housekeeping services:  see
Belair Insurance Co. v. McMichael
(2007), 86
    O.R. (3d) 68 (Div. Ct.), at paras. 20 and 23.  The evidence that the trial
    judge accepted, as already noted, satisfied him that housekeeping benefits were
    necessary.  It was for him to decide what amount was reasonable, based on the
    evidence before him.

[33]

I see no basis on which to interfere with the trial judges finding that
    $100 per week for an additional 78 weeks was reasonable.  Section 22(2) of SABS
    (set out above in para. 27)

limits the amount payable to $100 per week.
    The trial judge was satisfied that Ms. McQueen was unable to do virtually any of
    the housekeeping and house maintenance services that she had performed prior to
    the accident.  Given the nature of housekeeping services that needed to be
    provided, allowing Ms. McQueen two hours per day of assistance is very
    reasonable.  On that basis, the $100 weekly allowance would provide
    compensation to her family members at a rate of approximately $7.15 per hour,
    the same rate at which Echelon had earlier provided the housekeeping benefit.

2.         The Transportation
    Benefits

[34]

Echelon knew that pursuant to s. 14 of SABS, it was obliged to pay all
    reasonable and necessary costs of transportation for Ms. McQueens attendance
    at medical appointments.  In fact, until Dr. Kwok issued his report saying that
    Ms. McQueen did not need this benefit, Echelon had provided her with this
    benefit by means of a direct account with a taxi company.

[35]

As has been noted, the trial judge found Dr. Kwoks report to be
    seriously flawed.  Even Echelons own occupational therapist advised that Ms.
    McQueen needed to be provided with transportation benefits and she was under
    the mistaken belief that Ms. McQueen had a working vehicle available to her at
    the material times.

[36]

I see no reason to interfere with the trial judges implicit finding
    that Ms. McQueen proved entitlement to transportation benefits.  A short review
    of the evidence shows that this finding was fully open to him.  This evidence
    includes: the nature of Ms. McQueens health problems, her lack of access to a
    car, the opinion of Echelons occupational therapist that Ms. McQueen needed
    such transportation, Ms. McQueens attempts to use transportation for disabled
    persons, and the distance from her home to the nearest bus stop.

[37]

However, I do accept that the trial judge gave inadequate reasons for
    how he quantified the amount of transportation benefits to which Ms. McQueen
    was entitled.  Simply put, the trial judge gave no reasons or rationale for
    arriving at a figure of $7,500 for transportation benefits.

[38]

In my view, it would not serve the interests of justice to remit this
    matter for a second trial.  The amount in question is small and the plaintiff
    is of limited means and fragile health.  Thus, it falls to this court to
    quantify the transportation benefits.  Unfortunately, the record provides
    little help on the matter of transportation costs for medical appointments and
    otherwise.  For example, there is no evidence of the number and cost of the
    trips to medical appointments that Echelon paid for by means of the direct
    account with a taxi company in the period January to July 2004.

[39]

The little evidence on point comes from a report dated November 24,
    2005, following a failed mediation.  The report indicates that Ms. McQueen
    claimed $500 for transportation expenses to and from medical appointments for
    the period September 1, 2004 to the date of the mediation.  September 2004 to
    November 2005 is a period of approximately 13 months so the claim was for approximately
    $40 per month.  Ms. McQueen testified that the cost of a taxi to a medical
    appointment was $20 each way.  In other words, the claim at mediation appears
    to be for a single trip each month to a medical appointment.  Based on the
    evidence relating to her medical needs, this claim appears to be very modest
    and, in my view, reasonable.

[40]

Echelon ceased providing Ms. McQueen with transportation benefits at the
    end of July 2004.  There are 57 months in the period from August 2004 to trial
    (early May 2009).  Transportation benefits of $40 per month for 57 months would
    total $2,280.

[41]

Accordingly, I would allow the appeal on this issue and reduce the
    amount for the transportation benefit from $7,500 to $2,280.

3.         The Section 24 Assessments

[42]

I would not give effect to this ground of appeal.

[43]

Pursuant to s. 24 of SABS, an insurer is required to pay reasonable fees
    charged for, among other things, the preparation of assessments and reports by members
    of a health profession.

[44]

The trial judge thoroughly canvassed the medical evidence and Ms. McQueens
    testimony and made a finding of fact that the neuro/psychological assessments
    were both reasonable and necessary. There was significant evidence by a number
    of doctors that such examinations were required.  Indeed, Dr. Kwok as the insurance
    assessor recommended a neurological as well as a psychiatric/psychological
    assessment of Ms. McQueen.

[45]

With respect to the in-home assessment recommended by Ms. Dyk, an
    occupational therapist and thereby a member of a health profession, the trial
    judge accepted as a fact that it was reasonable and necessary in the
    circumstances and that its denial may have led Echelon to prematurely and
    incorrectly terminate the plaintiffs housekeeping benefits.  The trial judge
    was entitled to make this finding.

[46]

Accordingly, I see no reason to disturb the trial judges order in
    relation to the s. 24 assessments.

4.        Damages for Mental
    Distress

a)        Some initial comments

[47]

I begin by dismissing Echelons two initial submissions on this issue.

[48]

First, Echelon submits that there was procedural unfairness because, in
    deciding this issue, the trial judge considered conduct that related to matters
    other than rejected claims for statutory accident benefits.

[49]

It is clear from the statements of claim, however, that Ms. McQueen
    sought to recover damages for more than SABS benefits.  She alleged bad faith
    and mental distress and sought aggravated, punitive and exemplary damages.  In
    particular, she sought the following damages in both of the two statements of
    claim that were before the trial judge:

-

damages in the amount of $100,000 (reduced to $20,000 in the opening
    address by Ms. McQueens counsel at trial) for Echelons wrongful infliction of
    mental distress by the use of unlawful claims practices;

-

damages in the amount of $100,000 (also reduced to $20,000 at trial) for
    bad faith and unreasonable conduct in the claims process; and

-

aggravated, punitive and exemplary damages in the amount of $1,000,000
    (reduced to $35,000 at trial).

[50]

It should have come as no surprise to Echelon that evidence of the
    alleged wrongful conduct was adduced at trial.  Had Echelon wished to explore
    the allegations prior to trial, it could have done so through the discovery
    process.

[51]

Second, this recitation of the damages sought also disposes of Echelons
    argument that Ms. McQueen reduced her claim for mental distress to $20,000.
    She reduced her claims to $20,000 per claim for a total of $40,000, in addition
    to her claim for $35,000 for aggravated, punitive and exemplary damages
.

b)        More than a simple denial of benefits

[52]

Echelon also submits that this is merely a case about the denial of
    benefits and the simple denial of benefits does not amount to bad faith.

[53]

I accept that a lack of good faith is not to be inferred simply because
    an insurer does not pay a claim.  However, based on the findings of the trial
    judge, it cannot be said that this case was one in which Echelon simply denied
    benefits.

[54]

The reasons of the trial judge must be read as a whole.  The specific
    section of the judgment in which he deals with damages for bad faith and mental
    distress cannot be separated from the balance of the judgment in which he makes
    findings in relation to Echelons conduct.  It is evident that those findings lay
    the foundation for his reasoning on damages.

[55]

As early as para. 12 of the reasons, the trial judge refers to
Fidler
    v. Sun Life Assurance Co. Ltd.
, 2006 SCC 30, [2006] 2 S.C.R. 3 (
Fidler)
,
    noting that in
Fidler
, the Supreme Court of Canada held that an insurer
    owes a common law duty to act in good faith in all its dealings with an insured
    and has an additional duty not to inflict unnecessary mental distress.  He
    returns to
Fidler
in paras. 51 and 52 of the reasons, stating that in a
    case of alleged mental distress, the court must be satisfied that:

a)

an
    object of the contract was to secure a psychological benefit that brings mental
    distress upon breach within the reasonable contemplation of the parties; and

b)

the
    degree of mental suffering caused by the breach was of a degree sufficient to
    warrant compensation.

[56]

Throughout the reasons, the trial judge repeatedly notes that Echelon refused
    to provide benefits on the basis that they were not reasonable and necessary
    but Echelon gave no reasons for why they were not reasonable and necessary:
    see, for example, para. 33.

[57]

It is also clear that the trial judge was critical of Echelon for
    relying on Dr. Kwoks report, which was based on a superficial examination
    lasting only 30 minutes (para. 39), especially as Echelon had not given Dr.
    Kwok a copy of the report its own occupational therapist, which was favourable
    to Ms. McQueen (paras. 34 and 36).

[58]

In the section of the reasons in which the trial judge concludes that
    damages for mental distress are warranted, he begins by pointing out a number
    of claims that Echelon denied, contrary to medical recommendations.  He then refers
    to internal notes from Echelons files that were in evidence.  He finds that
    the expressions in the notes connote an outmoded attitude that runs against the
    reasoning in
Whiten v. Pilot Insurance Co
., [2002] 1 S.C.R. 595, and
Fidler
.
    At paras. 58-9 of the reasons, he makes key findings of fact:

[58]   I find that the Echelon file notes are
    evidence of an adversarial approach to the Plaintiff
ab initio
and in
    behaving in this manner, the Defendant has breached its contract of insurance
    with the Plaintiff.

[59]     Echelons adversarial position poisoned
    the process very early on, notwithstanding that it owed the Plaintiff a duty of
    good faith throughout.  Early on there was a negative predisposition toward the
    Plaintiff by the Defendant and these notes were the clarion call to the file
    going forward.

[59]

The trial judge found that one object of the insurance contract was to
    secure the plaintiffs peace of mind and that it was within the reasonable
    contemplation of the parties that breach of the peace of mind promise would
    bring about mental distress.

[60]

The trial judge went on to find that Ms. McQueen had suffered and that
    the suffering was of a degree that warranted compensation.  He notes that some
    indication of Ms. McQueens mental state in the period following the accident
    emerges from the clinical records of her treating psychiatrist, Dr. Prayaga.
    He said there were some two dozen reports in evidence in this regard.  Between
    2003 and 2007, Dr. Prayaga reported to Dr. Picketts (Ms. McQueens family
    doctor) ten times regarding her mental distress over the accident and the
    difficulties she was encountering with Echelon.

[61]

The trial judge went on to canvas the extensive medical evidence
    during the relevant period before concluding that Echelon created an
    adversarial relationship with Ms. McQueen that was likely to create mental
    distress and that, in fact, it did cause such mental distress.  He found that
    her distress was palpable and accepted her evidence that the change in her
    emotional and psychological conduct was the result of her relationship with
    Echelon (para. 71).

[62]

The trial judge then concluded with a brief summary of instances in
    which Echelon had terminated or denied her benefits even though the medical
    evidence demonstrated that those benefits were reasonable and necessary.  This
    included Echelon: terminating housekeeping benefits in the face of medical
    documentation stating that Ms. McQueen required housekeeping assistance; failing
    to pay transportation expenses to medical assessments and treatments in the
    face of clear medical evidence that she needed taxi transportation; and, repeatedly
    delaying access to medical treatments.

[63]

To the extent that Echelon argues that the trial judge was unaware of
    the differences between a claim for SABS benefits and for damages for mental
    distress and that he erred in his various factual findings, I reject these
    arguments.  The brief summary of his reasons shows that he was alive to the
    issues and that his findings were fully available on the record.

c)         An award for mental
    distress was available

[64]

In arguing that the trial judge lacked jurisdiction to make an award for
    mental distress, I understand Echelons key submission to be as follows.  Ms.
    McQueen was not a party to the insurance contract; it was her husband who was
    the named insured.  Echelon accepts that Ms. McQueen was an insured person for
    the purposes of claiming benefits under the insurance policy.  However, it
    contends that because she was not actually a party to the insurance contract,
    she was not entitled to claim damages for mental distress.  In a related
    argument, Echelon says that
Fidler
is distinguishable from the present
    case because
Fidler
dealt with a policy for long term disability
    benefits, not statutory accident benefits.  Consequently, Echelon contends,
    peace of mind cannot have been a term contemplated by the parties when the
    motor vehicle liability policy was purchased.

[65]

In my view, the Supreme Courts decision in
Fidler
supports the
    conclusion that damages for mental distress may be awarded to a person who is
    insured under a standard automobile policy, whether that person is the named
    party to the insurance contract or not.  Mental distress to anyone insured
    under the policy upon breach would have been within the reasonable
    contemplation of the insurer and the insured and, thus, damages are recoverable
    pursuant to the basic principle of compensatory damages for breach of contract.

[66]

Fidler
lies at the heart of my conclusion, therefore, I begin
    with a consideration of that case.

[67]

Ms. Fidler was a bank
    receptionist covered by a group long-term disability (LTD) policy.  After a
    serious kidney infection, she developed chronic fatigue syndrome and
    fibromyalgia.  She received LTD benefits for six years. Video surveillance
    showed her engaged in activities that the insurer considered to be inconsistent
    with her inability to perform light work. There was medical evidence that she
    was not yet capable of doing any work, but the insurer relied on its own
    consultants and experts to deny benefits. Shortly before the trial began, the
    insurer reversed its denial of coverage and paid Ms. Fidler all of the arrears
    plus interest. The trial and subsequent appeals proceeded on the question of whether
    an award of aggravated damages for mental distress was appropriate and whether
    punitive damages were also warranted.

[68]

At para. 44 of
Fidler
,
    McLachlin C.J. and Abella J., writing for the court, held
:

[D]amages for mental distress for
    breach of contract may, in appropriate cases, be awarded as an application of
    the principle in
Hadley v. Baxendale
.  The court should ask what
    did the contract promise? and provide compensation for those promises. The
    aim of compensatory damages is to restore the wronged party to the position he
    or she would have been in had the contract not been broken ... The measure of
    these damages is, of course, subject to remoteness principles.  There is
    no reason why this should not include damages for mental distress, where such
    damages were in the reasonable contemplation of the parties at the time the
    contract was made.  This conclusion follows from the basic principle of
    compensatory contractual damages:  that the parties are to be restored to
    the position they contracted for, whether tangible or intangible.  The
    laws task is simply to provide the benefits contracted for, whatever their
    nature, if they were in the reasonable contemplation of the parties at the time
    the contract was made.  [citations omitted]

[69]

The court explained, at para.
    45, that mental distress of the type that would support a compensatory damages
    award will not likely be within the expectation of the parties in normal
    commercial contracts but they will be when the object of the contract is to
    secure a particular psychological benefit:

It does not follow, however, that all mental
    distress associated with a breach of contract is compensable. In normal
    commercial contracts, the likelihood of a breach of contract causing mental
    distress is not ordinarily within the reasonable contemplation of the parties.
    It is not unusual that a breach of contract will leave the wronged party
    feeling frustrated or angry. The law does not award damages for such incidental
    frustration.
The matter is otherwise, however, when the parties enter into a
    contract, an object of which is to secure a particular psychological benefit.
In
    such a case, damages arising from such mental distress should in principle be
    recoverable where they are established on the evidence and shown to have been
    within the reasonable contemplation of the parties at the time the contract was
    made. The basic principles of contract damages do not cease to operate merely
    because what is promised is an intangible, like mental security. [Emphasis
    added.]

[70]

At para. 47, the court stated that in order for the court to
award compensatory damages for mental distress, it must be satisfied:

(1) that an object of the contract was to secure a
    psychological benefit that brings mental distress upon breach within the
    reasonable contemplation of the parties; and (2) that the degree of mental
    suffering caused by the breach was of a degree sufficient to warrant
    compensation.

[71]

The court added, at para. 48, that as
    long as the promise in relation to state of mind is a part of the bargain in
    the reasonable contemplation of the contracting parties, mental distress
    damages arising from its breach are recoverable. The promise for peace of mind
    need not be the dominant or sole object of the contract.

[72]

McLachlin C.J. and Abella J.
    went on, at paras. 52-53, to explain what type of damages properly attract the
    label of aggravated damages.  They distinguished between damages for mental
    distress arising out of a breach of contract and true aggravated damages. The
    latter are not awarded for breach of contract but rather rest on an
    accompanying but separate cause of action  usually in tort  for things like
    defamation, oppression, or fraud.  The award of damages for mental distress in
    such cases arises from a separate cause of action, rather than out of the
    contractual breach itself (para. 52).

[73]

Having established that
    damages for mental distress are available in certain breach of contract cases,
    the court then turned to Ms. Fidlers case and asked, at para. 56:  whether an
    object of this disability insurance contract was to secure a psychological
    benefit that brought the prospect of mental distress upon breach within the
    reasonable contemplation of the parties at the time the contract was made?

[74]

The court explained, at
    paras. 56-58, that it was an object of the contract:

The bargain was that in return for the payment of
    premiums, the insurer would pay the plaintiff benefits in the case of
    disability. This is not a mere commercial contract. It is rather a contract for
    benefits that are both tangible, such as payments, and intangible, such as
    knowledge of income security in the event of disability. If disability occurs
    and the insurer does not pay when it ought to have done so in accordance with
    the terms of the policy, the insurer has breached this reasonable expectation
    of security.

Mental distress is an effect which parties to a
    disability insurance contract may reasonably contemplate may flow from a
    failure to pay the required benefits. The intangible benefit provided by such a
    contract is the prospect of continued financial security when a persons
    disability makes working, and therefore receiving an income, no longer
    possible. If benefits are unfairly denied, it may not be possible to meet
    ordinary living expenses. This financial pressure, on top of the loss of work
    and the existence of a disability, is likely to heighten an insureds anxiety
    and stress. Moreover, once disabled, an insured faces the difficulty of finding
    an economic substitute for the loss of income caused by the denial of benefits.

People enter into disability insurance contracts to
    protect themselves from this very financial and emotional stress and
    insecurity. An unwarranted delay in receiving this protection can be extremely
    stressful
.
Ms. Fidlers damages for mental distress flowed from Sun
    Lifes breach of contract.  To accept Sun Lifes argument that an independent
    actionable wrong is a precondition would be to sanction the conceptual
    incongruity of asking a plaintiff to show
more
than just that mental
    distress damages were a reasonably foreseeable consequence of breach.
    [Citations omitted. Emphasis in original.]

[75]

In my view, the reasoning in
Fidler
applies to the present case.
    People purchase motor vehicle liability policies to protect themselves from
    financial and emotional stress and insecurity.  An object of such contracts is
    to secure a psychological benefit that brought the prospect of mental distress
    upon breach within the reasonable contemplation of the parties at the time the
    contract was made (
Fidler
, at para. 56).  As an insured person entitled
    to call on the policy, Ms. McQueen was entitled to that peace of mind and to
    damages when she suffered mental distress on breach.

DISPOSITION

[76]

Accordingly, I would allow the appeal in part and order that para. 1(b)
    of the Judgment be varied by substituting the amount of $2,280 for the amount
    of $7,500.  I would affirm the Judgment in all other respects.

[77]

Given that Ms. McQueen was largely successful, I would award costs of
    the appeal to her fixed at $6500, inclusive of disbursements and applicable
    taxes.  In light of the very limited success that the appellant enjoyed on
    appeal, it does not appear to me that any reduction in trial costs is
    warranted.  However, I understand from the parties that trial costs have not
    been fixed.  If they are unable to resolve that matter between themselves, they
    may raise the result on appeal when they take steps to have the trial costs
    fixed.

RELEASED: October 18, 2011 (E.E.G.)

E.E. Gillese
    J.A.

I agree Robert
    P. Armstrong J.A.

I agree
    Karakatsanis J.A.

[1]
Because the in-home evaluation was conducted on June 28, 2004, the trial judge refers
    to it by that date.


CITATION:
Metropolitan Toronto Condominium Corporation No.
          1272 v. Beach Development (Phase II) Corporation, 2011 ONCA
          667

DATE: 20111024

DOCKET: C53082

COURT OF APPEAL FOR ONTARIO

MacPherson, LaForme and Epstein JJ.A.

BETWEEN

Metropolitan
          Toronto Condominium Corporation No. 1272

Metropolitan
          Toronto Condominium Corporation No. 1342 and

Metropolitan
          Toronto Condominium Corporation No. 1500

Applicants (Appellants)

and

Beach Development (Phase II) Corporation, Beach
          Development (Phase III) Corporation, Beach Development (Phase IV)
          Corporation, and EMM Financial Corporation

Respondents (Respondents in Appeal)

Michael Spears, for the appellants

Richard Macklin, for the respondents

Heard and released orally:
October 21, 2011

On appeal from the judgment of
          Justice M.A. Penny of the Superior Court of Justice, dated November 16, 2010.

ENDORSEMENT

[1]

The appellants are
three
    condominium corporations linked by two things.  First, the ground floor of each
    building that houses the condominium units is freehold space occupied by
    commercial and retail establishments.  Second, each corporation finds itself in
    the position where, as matters now stand, there is no agreement requiring the
    occupants of the ground floor to share the costs of the facilities and services
    they share with the appellants.  As a result, say the appellants, each time
    money must be spent on a shared facility or service, they must either persuade
    the respondent EMM Financial Corporation (EMM), the entity that owns the
    freehold, to pay its fair share or litigate the matter.  The appellants submit
    that this is expensive and otherwise completely unworkable.

[2]

As a result of reaching an impasse
    in attempting to negotiate cost-sharing agreements, known as reciprocal
    agreements, the appellants commenced this application against the respondent
    corporations, each of which was involved with the development of the project.
    The three Beach Development respondents are the declarants of each of the three
    condominium developments.  EMM was the initial developer that, in the course of
    advancing the project, conveyed the land to the declarants and subsequently
    bought it back in order to proceed with the retail/commercial element of the
    venture on the ground floor.

[3]

The appellants applied for relief
    under s. 135 of the
Condominium Act
,
1998
, S.O. 1998, c. 19,
    seeking (1) a declaration that the respondents acted oppressively in not
    providing for a cost-sharing agreement, and (2) an order that EMM pay them its
    share of the operating costs of all shared facilities, from the date of
    registration of the appellants, forward.

[4]

The application judge dismissed
    the application primarily on the basis of his conclusion that the appellants
    failed to satisfy the test for oppression.

[5]

Section 135 of the
Condominium
    Act
,

is similar to the oppression provisions under the
Canada
    Business Corporations Act
, R.S.C. 1985, c. C-44, and the
Ontario
    Business Corporations Act
, R.S.O. 1990, c. B.16
.
It provides as
    follows:

135.   (1)       An owner, a corporation, a
    declarant or a mortgagee of a unit may make an application to the Superior
    Court of Justice for an Order under this section.

(2)       On an application, if the court
    determines that the conduct of an owner, a corporation, a declarant or a
    mortgagee of a unit is or threatens to be oppressive or unfairly prejudicial to
    the applicant or unfairly disregards the interests of the applicant, it may
    make an order to rectify the matter.

(3)       On an application, the judge may make any
    order the judge deems proper including,

(a) an order prohibiting the conduct referred
    to in the application; and

(b) an order requiring the payment of
    compensation.

[6]

As established in
BCE
    Inc. v. 1976 Debentureholders
, 2008 SCC 69, [2008] 3 S.C.R. 560
,
t
he
    test for oppression has two parts.  The claimant must demonstrate that there
    has been a breach of its reasonable expectations and that, considered in the
    commercial context, the conduct complained of amounts to
    "oppression", "unfair prejudice" or "unfair
    disregard".

Reasonable Expectations

[7]

The application judge rejected the appellants argument that their
    reasonable expectations were not met primarily on the basis of the
    representations and agreements that accompanied the condominium unit purchase
    and sale transactions.

[8]

We find no fault with his analysis or his conclusions.

[9]

The statutorily mandated proposed condominiums governing documents,
    which are designed to detail what condominium purchasers should reasonably
    expect, make no reference to any cost-sharing agreement between the appellants
    and the declarants.  While these documents specifically refer to the sharing of
    facilities and services, this reference alone does not support a finding that
    those who ultimately decided to purchase a condominium unit could reasonably
    expect that there would be a cost-sharing agreement when none was mentioned.

[10]

As well, in our view, the application judge properly rejected the
    appellants contention that commercial practice was such that buyers of
    condominium units would reasonably expect that there would be a reciprocal
    agreement.  In addition to other difficulties this argument may have, it is
    clear that the existence of such a commercial practice was not supported by the
    evidence.

[11]

The appellants argument based on breach of fiduciary duty must also
    fail.  The failure to include a cost-sharing agreement  a decision involving
    the operation of the overall development  was made between EMM and the
    declarants.  No fiduciary relationship between the parties could be said to
    exist and we do not accept the suggestion that the declarants had an obligation
    to revisit that situation once they were in the position to start selling
    units.

Oppressive Conduct

[12]

In addition to our view that the application judge correctly held that
    the appellants had not established that it was reasonable, in these
    circumstances to expect that there would be a cost-sharing agreement, we also
    concur with the application judges finding that there was no oppressive
    conduct.  The evidence supports the finding that the decision that cost-sharing
    agreements would not be included in the mixed-use development was a considered
    business decision of the respondents and was fully disclosed in circumstances
    where the unit purchasers of the appellants were represented by counsel.

[13]

Appellants counsel forcefully argued that to leave the appellants at
    the mercy of the respondents and future costly litigation is, in itself
    oppressive.  While we understand the appellants concern about the choices
    available to them in terms of managing disputes over the costs associated with
    the shared facilities and services, we are of the view that the oppression
    remedy is simply not available as one of those choices.  This is not a case of
    an oppressor utilizing a superior bargaining position to coerce unfavourable
    terms from a weaker party or acting behind the weaker parties' back.  Rather,
    it is a case in which the appellants voluntarily purchased their condominium
    units in the full knowledge and disclosure of the rights and obligations
    associated with their transaction.

Disposition

[14]

For these reasons the appeal is dismissed.

[15]

The respondents are entitled to their costs in the amount of $10,000
    inclusive of disbursements and all applicable taxes.

J.C.
    MacPherson J.A.

H.S. LaForme J.A.

G.J.
    Epstein J.A.