COURT OF APPEAL FOR ONTARIO

CITATION: Davidson (Re), 2021 ONCA 387

DATE: 20210603

DOCKET: C68883

Simmons, Gillese and Huscroft JJ.A.

IN THE MATTER OF:  Roberte Davidson

AN APPEAL UNDER PART XX.1 OF THE
CODE

Meaghan McMahon, for the appellant

Michael Dineen, for the respondent,
    Attorney General of Ontario

Marie-Pierre Pilon, for the respondent,
    Person in Charge of The Royal Ottawa Mental Health Centre

Heard and released orally: May
    27, 2021 by video conference

On appeal against the disposition of the Ontario Review Board dated,
    October 20, 2020.

REASONS FOR DECISION

[1]

We reject the appellants submission that in imposing
    a detention order with community living privileges, the Ontario Review Board (the
    Board) erred in failing to adequately consider the option of a conditional
    discharge.

[2]

Although the Boards analysis on this issue was brief,
    we are satisfied that, read fairly, the treating psychiatrists opinion supported
    the Boards conclusion that a detention order was the least onerous, least
    restrictive disposition and that the Board relied on that opinion in making its
    disposition.

[3]

The psychiatrists opinion included factors such
    as the appellants poor insight into her illness (schizoaffective disorder,
    bipolar type), lack of awareness of her symptoms and ambivalence to taking
    medication. In accordance with the terms of the immediately preceding
    disposition, a June 2019 detention order with community living privileges, the
    appellant progressed to living in her own apartment as of March 2020. She was
    readmitted to The Royal Ottawa Mental Health Centre (the Hospital) in April
    2020 but released within 20 days. We consider that the disposition imposed by
    the Board can be viewed as a stepping-stone to a conditional discharge,
    assuming a period of stability.

[4]

As for the appeal of the Boards disposition
    concerning the temporary restriction of liberty in April 2020, we conclude the contested
    issues surrounding the practicalities of readmitting the appellant to the
    Hospital are moot and unlikely to arise again because they were rooted in early
    stage COVID-19 protocols. That said, the Boards reasons properly alerted the Hospital
    that, in future, where a patient is admitted from the community having recently
    been assessed by her treating physician, the clinical opinion of the doctor
    should be taken into account. The Boards reasons sufficiently put the Hospital
    on notice that reliance on a blanket policy and the failure to make an
    individual assessment in this type of case could lead to unjustified
    restrictions of liberty.

[5]

The appeal is therefore dismissed.

Janet
    Simmons J.A.

E.E.
    Gillese J.A.

Grant
    Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Davidson (Re), 2021 ONCA 135

DATE: 20210302

DOCKET: C68221

MacPherson, Gillese and Nordheimer JJ.A.

In the Matter of the Bankruptcy of

Christine Ann Davidson (aka Christine Ann Ottewell)

of the Town of Nottawa, in the County of Simcoe, in the Province of
    Ontario
Summary Administration

Sean N. Zeitz and Randy Schliemann, for
    the appellant Dale Ottewell

Brandon Jaffe and Elaine S. Peritz, for
    the respondents Christine Ann Davidson and Eleanor McKay

Heard: February 25, 2021 by
    video conference

On appeal from the order of Justice Bernadette
    Dietrich of the Superior Court of Justice, dated March 11, 2020, with reasons
    reported at 2020 ONSC 1379, 79 C.B.R. (6th) 142 dismissing appeals from the
    order of Master May J. Jean dated September 16, 2019 and from the order of
    Master Janet E. Mills dated September 17, 2019.

Nordheimer J.A.:

[1]

Dale Ottewell, a creditor of the bankrupt,
    appeals from the order of Justice Dietrich (appeal judge) that dismissed his
    appeals from the orders of Master Jean, and of Master Mills, each sitting as
    Registrars in Bankruptcy. Master Jean dismissed a motion by the appellant for
    leave to commence a proceeding under s. 38 of the
Bankruptcy and Insolvency
    Act
, R.S.C. 1985, c. B-3 (
BIA
). Master Mills dismissed a motion
    by the appellant for leave to examine the bankrupt, and a number of individuals
    associated with the bankrupt, under s. 163(2) of the
BIA
. At the
    conclusion of the oral hearing of this appeal, the parties were advised that
    the appeal was dismissed for reasons to follow. I now provide those reasons.

[2]

By way of brief background, the appellant is the
    former spouse of the bankrupt. While the bankruptcy proceedings were going on,
    there were concurrent family law proceedings underway between the appellant and
    the bankrupt. The issues raised here involve a house whose registered owner is
    the bankrupts mother but in which the bankrupt resides. The appellant sought
    to have the house included as an asset in the bankrupts estate, claiming that
    it is beneficially owned by the bankrupt. When the Trustee refused to pursue
    that claim, the appellant sought leave to commence his own proceeding for that
    relief. Meanwhile, however, the appellant had consented to an order in the
    family law proceedings which provided that the house shall not form part of [his
    former spouses] property, assets or estate for any purpose.

I: Is there an appeal as of right

[3]

The first issue to be addressed is whether the
    appellant has a right of appeal from the order of the appeal judge in either of
    its aspects or whether he must obtain leave to appeal. That issue turns on the
    wording of s. 193 of the
BIA
which reads:

Unless otherwise expressly provided,
    an appeal lies to the Court of Appeal from any order or decision of a judge of
    the court in the following cases:

(a) if the point at issue involves
    future rights;

(b) if the order or decision is
    likely to affect other cases of a similar nature in the bankruptcy proceedings;

(c) if the property involved in the
    appeal exceeds in value ten thousand dollars;

(d) from the grant of or refusal to
    grant a discharge if the aggregate unpaid claims of creditors exceed five
    hundred dollars; and

(e) in any other case by leave of a
    judge of the Court of Appeal.

[4]

The appellant contends that he has a right of
    appeal under any of s. 193(a), (b) or (c) of the
BIA
. I do not agree
    that the appellant has a right of appeal regarding either aspect of the appeal
    judges order under s. 193(a) or (b). Neither aspect of the order involves
    future rights as that expression has been defined in the case law. Future
    rights are future legal rights, not procedural rights or commercial advantages
    or disadvantages that may accrue from the order challenged on appeal
: Re
    Ravelston Corp.
(2005), 24 C.B.R. (5th) 256 (Ont. C.A.), at para. 18.

[5]

Similarly, neither aspect of the order is likely
    to affect other cases of a similar nature under s. 193(b). The existing case
    law establishes that s. 193(b) must concern real disputes likely to affect
    other cases raising the same or similar issues in the same bankruptcy or
    receivership proceedings:
2403177 Ontario Inc. v. Bending Lake Iron Group
    Ltd.
, 2016 ONCA 225, 35 C.B.R. (6th) 102, at para. 32.

[6]

In terms of s. 193(c), it does not apply to the aspect
    of the order regarding the examination of the bankrupt and others: see
Enroute
    Imports Inc. (Re)
,
2016 ONCA 247, 35 C.B.R. (6th) 1, at para. 6. That
    aspect dealt with a strictly procedural matter that did not involve property at
    all. It dealt only with the examination rights available under the
BIA
.
    If the appellant wishes to appeal that aspect of the order, he requires leave
    under s. 193(e).

[7]

On that point, I would not grant leave to
    appeal. The proposed appeal does not satisfy any of the factors normally
    considered in granting leave to appeal. It does not raise any issue that is of
    general importance to the practice in bankruptcy/insolvency matters or to the
    administration of justice as a whole; it is not
prima

facie
meritorious, and it would unduly hinder the progress of the bankruptcy
    proceeding:
Business Development Bank of Canada v. Pine Tree Resorts Inc.
,
2013 ONCA 282, 115 O.R. (3d) 617, at para. 29.

[8]

The issue regarding any appeal of the aspect of
    the order dealing with the appellants motion seeking leave to proceed under s.
    38 is more problematic, however. That aspect involves a proposed proceeding, the
    purpose of which is to seek to bring an asset, namely the house, into the
    bankrupts estate. The house has a value in excess of $200,000.

[9]

There is an ongoing debate among provincial
    appellate courts regarding the proper scope of s. 193(c). There are decisions
    suggesting that the section should be given a narrow interpretation. At the
    same time, there are other decisions that suggest that a broad view ought to be
    taken.

[10]

Given the ultimate result in this case, a
    resolution of this issue is best left to another day. I will assume, for the
    purposes of this appeal, that the appellant has a right of appeal under s.
    193(c) from the s. 38 determination.

II: The appeal

[11]

My reasons for the dismissal of the appeal
    differ in part from the courts below. In that regard, it is important to
    remember the distinction between the appellants personal status and his status
    as a creditor of the bankrupt.

[12]

The family law order could not affect the
    Trustees rights to pursue any claim, including a claim that the house should
    be part of the bankrupts estate. The family law proceeding did not involve the
    Trustee and is not binding on the Trustee. In considering this issue, it is
    important to remember the nature of the relief that a creditor seeks under s.
    38. It is worth reproducing the wording of ss.38(1) and (2), which read:

(1) Where a creditor requests the
    trustee to take any proceeding that in his opinion would be for the benefit of
    the estate of a bankrupt and the trustee refuses or neglects to take the
    proceeding, the creditor may obtain from the court an order authorizing him to
    take the proceeding in his own name and at his own expense and risk, on notice
    being given the other creditors of the contemplated proceeding, and on such
    other terms and conditions as the court may direct.

(2) On an order under subsection
    (1) being made, the trustee shall assign and transfer to the creditor all his
    right, title and interest in the chose in action or subject-matter of the
    proceeding, including any document in support thereof.

[13]

As the section makes clear, what a creditor
    obtains by way of a request under the section is the right to pursue a proceeding
    that the Trustee refuses or neglects to take. That is why the creditor is given
    an assignment of the Trustees interest in the chose in action or subject matter
    of the proceeding under s. 38(2). The creditor is not pursuing a personal claim:
    see
Re Zammit
(1998), 3 C.B.R. (4th) 193 (Ont. Gen. Div.) at para. 7.

[14]

This distinction is important to the proper
    application of the
BIA
. However, this concern does not alter the
    correctness of the result reached by the courts below. A request to commence a
    proceeding under s. 38 is not an absolute right. It is a discretionary remedy.
    It requires that the creditor show that there is some merit to the proposed claim.
    As Blair J. said in
Re Jolub Construction Ltd.
(1993), 21 C.B.R. (3d)
    313, (Ont. Gen. Div.), at para. 19:

Without intending to introduce another phrase
    into the melee, a creditor must establish, in my opinion, that there is a
    sufficient case on the merits  as contemplated by the thrust of those tests
    outlined in earlier cases  to warrant the Court's approval to proceed, in the
    circumstances.

[15]

The Master found that the appellant was
    attempting to do indirectly what he had expressly agreed not to do in the
    family law proceedings, that is, bring the house into his spouses (the
    bankrupts) assets. On appeal, the appeal judge said, at para. 33:

I find that Master Jean did not err in finding
    that the appellant failed to establish threshold merit to the proceeding in the
    face of the Vallee Order and that it would be inequitable to permit him to
    pursue an interest in the Property having consented to that Order. I also find
    that she did not err in declining to exercise her discretion to permit the
    appellant to step into the shoes of the Trustee to indirectly do what he had
    expressly agreed not to do. I find no error in principle or in law in her
    decision.

[16]

There is no error in the appeal judges
    conclusion in this respect. The appellant has also failed to show that the
    Masters exercise of her discretion under s. 38 was unreasonable.

[17]

It is for these reasons that the appeal was
    dismissed. The respondents are entitled to their costs of the appeal. They have
    agreed on the costs of a motion that was heard by Coroza J.A. at $7,500. They
    do not agree on the costs of the appeal. I would fix those costs at $10,000 for
    a total costs award of $17,500 inclusive of disbursements and HST.

Released: March 2, 2021 J.C.M

I.V.B.
    Nordheimer J.A.

I
    agree. J.C. MacPherson J.A.

I
    agree. E.E. Gillese J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Dhatt v. Beer, 2021 ONCA 137

DATE: 20210304

DOCKET:
C68375 and
    C68539

Strathy C.J.O., Brown and Miller
    JJ.A.

BETWEEN

Mandeep Dhatt and Kulwinder
    Dhatt

Plaintiffs (Respondents)

and

Derek Beer and Indira Beer

Defendants (Appellants)

and

Jay Brijpaul and Re/Max West
    Realty Inc., Brokerage

Third Parties (Respondents)

David P. Lees and Zachary Silverberg,
    for the appellants

Arnie Herschorn, for the respondents,
    Mandeep Dhatt and Kulwinder Dhatt

Serena L. Rosenberg, for the respondents,
    Jay Brijpaul and Re/Max West Realty Inc.

Heard: February 10, 2021 by video conference

On appeal from the judgment and order of
    Justice Carole J. Brown of the Superior Court of Justice, dated May 1, 2020 and
    July 30, 2020, respectively, with reasons for judgment reported at 2020 ONSC
    2729.

BROWN J.A.:

I.        OVERVIEW

[1]

This appeal raises two main issues. First, did
    the trial judge unreasonably exercise her discretion by refusing the requests
    of the appellants, Derek Beer and Indira Beer, to adjourn the trial? Second,
    did the trial judge err in granting the respondents, Mandeep Dhatt and
    Kulwinder Dhatt, specific performance of the January 22, 2016 agreement of
    purchase and sale to buy the Beers Brampton residential property (the
    Agreement)?

[2]

When the Beers refused to close the Agreement,
    the Dhatts sued for specific performance. The Beers defended, pleading that the
    Agreement was invalid. They brought a third party claim against their real
    estate agent, Jay Brijpaul, and his brokerage, Re/Max West Realty Inc.,
    Brokerage (the Re/Max Third Parties).

[3]

By judgment dated May 1, 2020 (the Judgment),
    the trial judge granted the Dhatts specific performance and dismissed the third
    party claim. By order dated July 30, 2020, the trial judge appointed a lawyer
    to act for the Beers and close the transaction (the Transaction Order).

[4]

The Beers appeal both the Judgment and the
    Transaction Order.

[5]

By order dated August 28, 2020, Zarnett J.A.
    refused to stay the Judgment and Transaction Order pending appeal:
Dhatt v.
    Beer,
2020 ONCA 545, 449 D.L.R. (4th) 263. As a result, the Dhatts took
    possession of the property in September 2020, but the closing of the
    transaction awaits the disposition of these appeals.

[6]

The Beers raise three grounds of appeal, arguing
    that the trial judge erred

in:

(i)

refusing to grant them an adjournment of the
    trial;

(ii)

granting the Dhatts specific performance; and

(iii)

awarding substantial indemnity costs against them.

[7]

For the reasons set out below, I would dismiss
    the appeal.

II.       FIRST
    GROUND OF APPEAL: THE REFUSAL TO ADJOURN THE TRIAL

[8]

The Beers submit that the trial judge failed to
    exercise her discretion judicially by refusing their request for an adjournment
    on the first day of trial and refusing their subsequent requests for an
    adjournment on medical grounds.

[9]

I see no error by the trial judge in exercising
    her discretion that would merit appellate intervention.

A.

The governing principles

[10]

A judge may postpone or adjourn a civil trial to
    such time and place, and on such terms, as are just:
Rules of Civil
    Procedure
, r. 52.02. The principles governing a trial judges exercise of
    that discretion were set out in the majority and dissenting reasons in
Khimji v. Dhanani

(2004),
    69 O.R. (3d) 790 (C.A.). Both must be read together. In his dissent, Laskin
    J.A. summarized several of the main principles, at para. 14:

A trial judge enjoys wide latitude in deciding
    whether to grant or refuse the adjournment of a scheduled civil trial. The
    decision is discretionary and the scope for appellate intervention is
    correspondingly limited. In exercising this discretion, however, the trial
    judge should balance the interests of the plaintiff, the interests of the
    defendant and the interests of the administration of justice in the orderly
    processing of civil trials on their merits. In any particular case several
    considerations may bear on these interests. A trial judge who fails to take
    account of relevant considerations may exercise his or her discretion
    unreasonably and if, as a result, the decision is contrary to the interests of
    justice, an appellate court is justified in intervening.

The majority, Doherty and Catzman
    JJ.A., added a further factor stating, at para. 27:

I have had the privilege of reading the lucid
    reasons of Laskin J.A. I adopt his summary of the facts and his statement of
    the principles governing this appeal. I would only add that in determining
    whether to grant an adjournment in this case, the trial judge had to consider
    not only the orderly processing of civil trials, but the need to effectively
    enforce court orders. I think the refusal of the adjournment in this case was
    justified principally because the appellant all but ignored the order of the
    court made in November. He made virtually no attempt to retain a lawyer who
    could act for him on the scheduled trial date, or to pay even part of the costs
    order made against him.
[1]

[11]

Those general principles must be applied with a
    stance of deference to the front-line trial judge. As stated by the majority in
Khimji
, at para. 36:

This court sits at a distance from the
    day-to-day operation of trial courts. That distance must impair this court's
    ability to review decisions such as the one under appeal. Strong deference is
    due to the decision of those in the trial courts who are responsible for the
    day-to-day maintenance of an efficient and just system of civil trials.

[12]

Since
Khimji
was decided in 2004, an
    increasing degree of pre-trial case management has been applied to civil
    actions in the Superior Court of Justice. One object of the pre-trial case
    management process is to ensure that parties meet the trial date set for their
    action.

[13]

The trial of the present action was subject to
    the Toronto Regions Consolidated Practice Direction for Civil Actions,
    Applications, Motions and Procedural Matters in the Toronto Region, (July 1,
    2015). Section 71 deals with trial dates, stating that: Once trial dates are
    set, there will be no adjournments of the trial
except in
    extenuating and exceptional circumstances
. [Emphasis added.]

B.

The refusal of the adjournment request on the
    first day of trial

The issue stated

[14]

The Beers had been represented by counsel until
    April 2018, when their lawyer got off the record due to non-payment of
    accounts. At a November 2018 Trial Scheduling Court, Mr. Beer stated that he
    would retain counsel.

[15]

The matter was put over to the January 2019
    Trial Scheduling Court. At that time, Mr. Beer advised that the defendants had
    not retained counsel. Nor had they filed the third party record as they had
    been ordered to do in November 2018. The presiding judge scheduled the 10-day
    trial for March 2, 2020 and ordered the third party record to be filed within
    60 days. The Beers failed to do so.

[16]

At a December 2019 pre-trial conference, the Beers
    were ordered to: (i) file the third party record by years end; (ii) advise by
    January 6, 2020 whether they planned to retain counsel and, if so, who; and
    (iii) provide a list of their witnesses by that date. The Beers did not comply
    with those orders.

[17]

A week before the trial was to start, the Beers
    retained a lawyer with the limited mandate of requesting an adjournment of the
    trial (the Adjournment Counsel). That lawyer appeared on the first day of the
    trial. Adjournment Counsel explained his limited mandate and made it clear that
    even if an adjournment was granted, the Beers would likely be representing
    themselves.

[18]

The main ground advanced for an adjournment was
    that the Beers former lawyer had been asserting a solicitors lien over the
    file and its documents for the better part of two years, as a result of which the
    Beers had few relevant documents. The former lawyer had obtained judgment for
    the amount due under the accounts. Adjournment Counsel informed the court that
    the Beers could not pay their former lawyer.

[19]

At the same time, Adjournment Counsel advised
    that another lawyer of the Beers, who had acted for them in the enforcement
    proceedings brought by their former lawyer, also had some documents but he had
    not been able to reach that lawyer.

[20]

Adjournment Counsel requested an adjournment
    until the Beers had dealt with the matters involving their former lawyer,
    including a pending sheriffs sale of the Brampton property in satisfaction of
    their former lawyers judgment. Adjournment Counsels instructions only permitted
    him to advise the court that the Beers were willing and able to cooperate in
    scheduling new dates for the trial. In essence, the Beers were requesting an
    indefinite adjournment to no fixed date.

[21]

The adjournment was opposed by the Dhatts and
    the Re/Max Third Parties, especially given the failure of the Beers to propose
    a definite date for the resumption of the trial. The trial judge refused to
    grant an adjournment, stating in her ruling:

Not until last week did [the Beers] retain
    counsel, but only for the limited purpose of seeking an adjournment. Even were
    an adjournment granted, the situation would ultimately be the same, namely that
    the defendants would be self-represented.

The defendants have known for two years that
    they should retain counsel but did so only at the very last moment and only for
    the limited purpose of seeking an adjournment.

I am not satisfied that in all of the
    circumstances, an adjournment should be granted. The trial will proceed.

[22]

Given the representation by Adjournment Counsel
    that the Beers lacked the documents needed for the trial, the trial judge ordered
    that the plaintiff and third party provide their briefs of documents to the
    defendants by the end of the day today. We will proceed with the trial tomorrow
    at 11 AM.

Analysis

[23]

The Beers submit that the trial judge erred in
    refusing to grant their request for an adjournment on the first day of trial
    for two reasons. First, it was only their first request for an adjournment. Second,
    the Beers were self-represented and the denial of an adjournment was
    inconsistent with the trial judges duty to self-represented litigants to
    acquaint them with courtroom procedure and the rules of evidence so that they
    received a fair trial:
Morwald-Benevides v. Benevides
, 2019 ONCA 1023,
    148 O.R. (3d) 305, at para. 34.

[24]

I see no merit in either submission.

[25]

If at some time in the past there was a sense
    that a party had some sort of presumptive entitlement to one adjournment of a
    set trial date, those days are long gone. As the Toronto Region Practice
    Direction clearly states, once a trial date is set, there will be no
    adjournment of the trial except in extenuating and exceptional circumstances.
    The responsibility squarely falls on the party requesting an adjournment of a
    set trial date to demonstrate extenuating and exceptional circumstances.

[26]

Second, although a trial judge does have a duty
    to ensure self-represented parties receive a fair trial, as pointed out by the
    majority in
Khimji
a self-represented litigants refusal to comply
    with pre-trial orders and failure to use time granted by the court to find a
    lawyer, may weigh heavily against that litigants request for an adjournment of
    a set trial date.

[27]

As well, the Canadian Judicial Councils 2006
Statement
    of Principles on Self-represented Litigants and Accused Persons
, endorsed
    by the Supreme Court of Canada in
Pintea v. Johns
, 2017 SCC 23, [2017]
    1 S.C.R. 470, at para. 4, states, at p. 9, that self-represented persons are
    expected to familiarize themselves with the relevant legal practices and
    procedures pertaining to their case and respect the court process. The
Statement
notes that judges have no obligation to assist a self-represented person who
    makes no reasonable effort to prepare their own case: at p. 6, Section C,
    Principle 4.

[28]

Further, the following statement by the majority
    of this court in
Khimji
,

at para. 35, applies equally to
    parties represented by counsel and those who are self-represented:

Individual litigants have a right to pursue
    and defend their respective claims. They must do so, however, within a court
    structure that must accommodate thousands of individual litigants. That system
    can function effectively only when litigants take scheduling commitments
    seriously and make genuine efforts to comply with court orders relating to
    adjournments and related matters.

[29]

In the present case, the Beers had been given
    lengthy advance notice of the trial date and ample time to retain a lawyer;
    they had the better part of two years to make arrangements to obtain relevant
    trial documents from opposing counsel; the action had been marked peremptory to
    the Beers; the Beers retained a lawyer at the last minute only for the limited
    purpose of seeking an adjournment of the trial date; they did not propose a new
    trial date; they failed to comply with the orders of the court to file a third
    party record and deliver a list of witnesses; and they made no reasonable
    effort to prepare their case. Given those facts, I see absolutely no error in
    the trial judges refusal to grant the Beers request for an adjournment on the
    first day of trial.

C.

The refusal to grant further adjournment
    requests

The issue stated

[30]

On subsequent trial days further adjournment
    requests by the Beers ensued, this time based on their medical conditions.

[31]

When the trial resumed on March 3, 2020, the
    Beers attended; their Adjournment Counsel did not. Although opposing counsel
    had provided them with the documents ordered by the trial judge, the Beers did
    not bring them to the trial. Mrs. Beer informed the court that she had a
    four-hour medical appointment scheduled for the following morning at a
    hospital. When the trial judge sought further details about the matter, Mrs.
    Beer advised that she was getting a panic attack.  As the discussion
    continued, Mrs. Beer initially advised that she would call the hospital and
    cancel the appointment, then stated she would keep the appointment, miss the
    second day of trial, leaving matters to her co-defendant husband.

[32]

The trial judge next asked plaintiffs counsel
    to begin his opening submissions. Thereupon Mrs. Beer began to make noises,
    which prevented the trial judge from hearing the submissions. Mrs. Beer left
    the courtroom with her husband and requested an ambulance. One came, and Mrs.
    Beer and her husband went with the paramedics. A brief recess was taken. On the
    resumption of court, counsel for the Re/Max Third Parties informed the trial
    judge that she understood from the Beers former lawyer this exact thing had
    happened at a judgment debtor examination conducted by the former counsel. The
    trial judge asked counsel to contact the Beers to advise that the trial would
    resume the following day at 10:00 a.m.

[33]

Upon the resumption of the trial on the third
    day, March 4, 2020, the Beers were not present. Counsel for the Re/Max Third
    Parties had received a text from Mr. Beer stating that he was not feeling well,
    was stressed out, and could not attend. The court and counsel had received some
    notes from the Beers about the previous days trip to a hospital emergency ward
    where both had been examined and discharged. The diagnosis for Mrs. Beer was
    anxiety; for her husband, a psychosocial problem. After hearing submissions
    from counsel, the trial judge took a brief recess. Upon resuming, the trial
    judge gave oral reasons in which she reviewed the events and the medical
    information. She directed that the trial proceed, concluding that the Beers
    were attempting to delay the trial further. The Dhatts counsel completed his
    opening submission.

[34]

Following a recess, the trial judge
    re-considered her decision. She did not proceed to hear the Dhatts first
    witness. Instead, she arranged for her ruling to be sent to the Beers, together
    with a direction that they attend at court the following morning when the trial
    would proceed, with or without them.

[35]

The trial resumed on the fourth day, March 5,
    2020. Mrs. Beer attended; Mr. Beer did not. Mrs. Beer informed the court of
    four things. First, she had received the trial judges endorsement of the
    previous day but did not read it. Second, her husband was not well. Third, she
    took the position that her husbands name was not on the house and she did
    not trust him to make any decision. In fact, the Beers owned the house as
    co-tenants. Finally, she presented a doctors note that stated Mrs. Beer was
    experiencing worsening anxiety related to recent legal proceedings and was
    not in the state of mind to proceed with further legal proceedings right now,
    until she is deemed better prepared.

[36]

After considering the materials, the trial judge
    delivered oral reasons directing that the trial proceed. While acknowledging
    that Mrs. Beer was experiencing anxiety due to the legal proceeding, she
    observed that was very common for many participants. She repeated that the
    Beers had attempted on many occasions to delay the proceedings, and then
    stated:

The trial will proceed. There is no justification
    or explanation for the defendants not to be present. Mr. Beer cannot be told by
    his wife not to be present at trial for the reason she has given. There is no
    justification and no evidence to support his not being present. As a result, I
    order that this trial proceed. Mrs. Beer is here now, if she wishes to stay. If
    not, and she's already told her husband apparently not to be present, so that
    he is not here either. But we will proceed with the trial today.

[37]

Mrs. Beer thereupon repeated her request for
    time to get a lawyer. The trial judge refused. Mrs. Beer left the courtroom, and
    the trial proceeded in the absence of the Beers.

Analysis

[38]

On appeal, the Beers submit that their medical
    circumstances on the second, third, and fourth days of the trial were
    extenuating and exceptional, and the trial judge erred by failing to grant them
    an adjournment.

[39]

I am not persuaded by that submission. As revealed
    by the events of those days as described above, the trial judge proceeded in a
    measured way, affording the Beers fair opportunities over the course of three
    days to explain their situation. The trial judges endorsements disclose that
    she reviewed all the medical documentation provided by the Beers and took that
    information into account when assessing the interests of all parties to the
    proceeding. I see no basis for appellate intervention in the circumstances.

III.      SECOND
    GROUND OF APPEAL: THE GRANT OF SPECIFIC PERFORMANCE

[40]

The Beers submit that the trial judge erred in
    granting the extraordinary remedy of specific performance. They contend that
    the characteristics of the property did not make it unique and the Dhatts
    losses could be quantified and remedied by an award of damages.

[41]

I do not accept that submission.

[42]

To describe the remedy of specific performance
    as an extraordinary remedy is a misdescription. In determining whether to
    grant specific performance, the fundamental question is whether the plaintiff
    has shown that the land rather than its monetary equivalent better serves
    justice between the parties:
Lucas v. 1858793 Ontario Inc. (Howard Park)
,
    2021 ONCA 52, at para. 70, quoting, with approval, Lax J. in
John E. Dodge
    Holdings Ltd. v. 805062 Ontario Ltd.
(2001), 56 O.R. (3d) 341 (S.C.), at
    para. 55, affd (2003) 63 O.R. (3d) 304 (C.A.), leave to appeal refused, [2003]
    S.C.C.A. No. 145. As stated by this court in
Lucas
at para. 71:

Whether specific performance is to be awarded
    or not is therefore a question that is rooted firmly in the facts of an
    individual case  In determining whether a plaintiff has shown that the land
    rather than its monetary equivalent better serves justice between the parties,
    courts typically examine and weigh together three factors: (i) the nature of
    the property involved; (ii) the related question of the inadequacy of damages
    as a remedy; and (iii) the behaviour of the parties, having regard to the
    equitable nature of the remedy  Whether a property is unique, either by virtue
    of its nature or the features of the contract for its purchase and sale,
    operates as only one of several factors a court must consider when determining
    entitlement to specific performance. [Citations omitted.]

[43]

The trial judge identified and applied the
    governing principles. Her conclusion, at paras. 39 and 40, that the Dhatts had
    demonstrated that the property possessed unique qualities was fully supported
    by the evidence. As was her finding that damages would not be an adequate
    remedy in the circumstances given the evidence that the Beers lacked sufficient
    funds to pay a damages award: at paras. 43-46.

[44]

Accordingly, I see no basis to interfere with
    the trial judges grant of specific performance.

IV.     THIRD
    GROUND OF APPEAL: THE AWARD OF SUBSTANTIAL INDEMNITY COSTS

[45]

As their final ground of appeal, the Beers
    submit that the trial judge erred in awarding substantial indemnity costs to
    the Dhatts ($112,347.63) and the Re/Max Third Parties ($88,178.52). The Beers
    submit that the trial judge did not provide any reasons, with the result that
    the costs should be reduced to the partial indemnity level.

[46]

I do not accept this submission. The trial judge
    explained, at paras. 54-56, why she awarded costs on a substantial indemnity
    basis: (i) the Beers attempted to delay or prolong the proceeding, to the point
    of failing to attend the trial despite being ordered to do so; and (ii) the
    Beers failure to close the transaction and failure to appear at trial were
    without justification and egregious.

[47]

The trial judge relied mainly on the litigation
    misconduct of the Beers in awarding costs on the elevated scale of substantial
    indemnity. I see no error in principle by the trial judge nor were the
    resulting cost awards unreasonable in the circumstances.

V.      DISPOSITION

[48]

For the reasons set out above, I would dismiss
    the appeal.

[49]

If the parties are
    unable to agree on the costs of the appeal, they may submit brief cost
    submissions (not to exceed three pages) within 10 days of the release of these
    reasons.

Released: March 4, 2021 G.R.S.

David
    Brown J.A.

I
    agree. G.R. Strathy C.J.O.

I
    agree. B.W. Miller J.A.

[1]
A
    helpful summary of the specific factors a trial judge should take into account
    when faced with an adjournment request can be found in
Trade Capital Finance
    Corp. v. Cook
, 2016 ONSC 3511, at paras. 8-11.


COURT
    OF APPEAL FOR ONTARIO

CITATION: Dia v. Calypso Theme Waterpark,
    2021 ONCA 343

DATE: 20210520

DOCKET: C68635

Tulloch, Nordheimer and Jamal
    JJ.A.

BETWEEN

Ihab
    Dia, Faten Zeineddine, Samer Dia (a minor by his litigation guardian Ihab Dia),
    Anisah Dia (a minor by her litigation guardian Ihab Dia), Ali Dia (a minor by
    his litigation guardian Ihab Dia), and Mohamed Dia (a minor by his litigation
    guardian Ihab Dia)

Plaintiffs (Appellants)

and

Calypso
    Theme Waterpark, Jacques Bui, Jamie Crowder, Khamea Louangrath,
Paolo
    Messina
and Shaun Wheeler

Defendants (
Respondent
)

AND BETWEEN

Paolo
    Messina

Plaintiff by Counterclaim

and

Samer
    Dia and Mohamed Zeineddine

Defendants by Counterclaim

Katie Black, for the appellants

Danesh Rana, for the respondent

Heard: in writing

On appeal from the order of Justice Heather
    J. Williams of the Superior Court of Justice, dated April 27, 2020, with
    reasons reported at 2020 ONSC 2601, and from the costs endorsement, dated August
    29, 2020, with reasons reported at 2020 ONSC 5191.

COSTS ENDORSEMENT

[1]

On April 29, 2021, we released our decision in
    which we allowed the appeal in this matter and awarded the appellants their costs
    of the appeal. We invited written submissions regarding the costs of the
    summary judgment motion below.

[2]

We have now received and reviewed the written
    submissions of the appellants. The respondent declined to provide any
    submissions.

[3]

In the result, we award the appellants their
    costs in responding to the motion for summary judgment fixed in the amount of
    $3,500 inclusive of disbursements and HST.

M.
    Tulloch J.A.

I.V.B.
    Nordheimer J.A.

M.
    Jamal J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Dosen v. Meloche Monnex Financial Services Inc. (Security
    National Insurance Company), 2021 ONCA 141

DATE:
    20210305

DOCKET:
    C67664 & C67726

Pepall,
    Benotto and Coroza JJ.A.

BETWEEN

Mary
    Arlene Dosen and Rudolf Dosen

Plaintiffs

and

Meloche
    Monnex Financial Services Inc. (c.o.b. as Security National Insurance Company)
    and
Venmar Ventilation ULC

Defendants
    (
Respondent
)

and

Fasco
    Motors Limited, Von Weise of Canada Company and

Regal-Beloit
    Corporation

Third
    Parties (Appellants)

J. Thomas Curry, Scott Rollwagen and
    Sarah Bittman, for the appellants

M. Gosia Bawolska and Kara L. Denny,
    for the respondent

Heard: September 24, 2020 by
    video conference

On
    appeal from the order of Justice Kim Carpenter-Gunn of the Superior Court of
    Justice, dated October 30, 2019.

Coroza J.A.:

I.

OVERVIEW

[1]

On August 26, 2013, a fire broke
    out in the home of Mary Arlene and Rudolf Dosen (the Dosens) in Ancaster,
    Ontario, causing significant damage. The Dosens allege that the fire originated
    in a heat recovery ventilation unit (HRV) in their home. HRVs are designed to
    bring fresh outside air inside a building while expelling stale indoor air. The
    HRV contains a motor which powers the blower assembly inside the unit. The
    Dosens allege that the respondent, Venmar Ventilation ULC (Venmar),
    manufactured the HRV, and the appellants (Fasco), manufactured the motor.

[2]

On July 9, 2015, the Dosens
    commenced an action against Venmar (the Main Action), claiming that Venmar
    was liable for manufacturing and distributing a defective HRV that caused the
    fire.

[3]

On July 19, 2016, Venmar issued a
    third-party claim against Fasco for contribution and indemnity for any damages
    for which Venmar might be found liable to the Dosens in the Main Action. In
    response, Fasco issued statements of defence to the Dosens claim and to Venmars
    third-party claim on May 1, 2017.

[4]

A companion action was
    commenced on August 14, 2015, by the Dosens insurer against both
Venmar and Fasco for losses arising under a subrogated
    insurance policy due to the fire (the Companion Action). Fasco issued a
    statement of defence to this claim and a crossclaim against Venmar on
    February 4, 2016. On June 14, 2017, Venmar also issued a statement of
    defence and crossclaim for contribution and indemnity against Fasco.

[5]

Fascos defences are
    substantially the same, with respect to Venmars third-party claim and
    crossclaim for contribution and indemnity in the Main Action and Companion
    Action, respectively (collectively, the Ontario Actions). Fascos pleadings
    allege that even if the fire originated in a motor it manufactured, contained
    within the HRV, the fire was nonetheless
caused
    by Venmars negligence in the assembly, testing, and use of certain components
    in the HRV, and in Venmars failure to adequately warn the Dosens and other
    customers about the danger of the HRV. Fasco also argues that it used a
    standard form contract in supplying motors to Venmar, which provided for its
    indemnification in the event of litigation.

[6]

The trial of the
    Ontario Actions
was scheduled to begin on
    November 18, 2019. However, on October 4, 2019, Venmar brought a
    motion under r. 21.01(3)(d) of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194, to strike Fascos defences to
    Venmars claims for contribution and indemnity on the basis of
res judicata
and abuse of process. Specifically, Venmar argued
    that the Quebec Superior Court and Quebec Court of Appeal had already decided
    the legal and factual issues between Venmar and Fasco, in earlier proceedings.
    Those proceedings related to a house fire, involving a Venmar HRV and a Fasco
    motor, in Quebec City, on April 11, 2007.

[7]

The motion judge heard Venmars
    motion on October 28 and 29, 2019, three weeks before the scheduled start of trial,
    and struck Fascos statement of defence to Venmars third-party claim in the
    Main Action based on
res
    judicata
and abuse of process. She
    also ordered that her decision be applied to the Companion Action, such that
    Fascos defence to Venmars crossclaim for contribution and indemnity was also
    struck.

[8]

Fasco now appeals the motion
    judges decision to strike its pleadings.
For the reasons that follow,
I would allow Fascos appeal.

II.

BACKGROUND

(1)

The 2007 Fire and
    Quebec Litigation

[9]

In 2014 and 2016, the
    Quebec Superior Court and Quebec Court of Appeal rendered judgments concerning
    a house fire that occurred in Quebec City on April 11, 2007 (the Quebec
    Actions). The source of the fire was traced to a HRV installed in the home.
    The homeowners insurer, Desjardins, sued both Venmar and Fasco for $86,000. At
    trial, Fasco focused their defence on a single issue  whether the fire was
    caused by a failure of the motor it manufactured or whether it was caused by a
    failure of another component of the HRV that was selected and installed by
    Venmar.

[10]

On July 22, 2014, the
    trial judge found that the fire was caused by a failure of the motor and
    concluded that Fasco was 100 percent liable for the plaintiffs damages.

[11]

Fasco appealed this
    decision to the Quebec Court of Appeal, on the basis that Venmar should have
    been found entirely liable due to its failure to obtain adequate protection for
    the motor and its failure to adequately warn customers. On November 25, 2016,
    the court dismissed Fascos appeal. However, the court found that the trial
    judge erred becausebased on his finding that both Venmar and Fasco failed to
    rebut the presumption of liability for a safety defect under Quebec lawhe
    should have found them jointly liable before proceeding to apportion liability
    between them. Notwithstanding this error, the court found no basis to interfere
    with the trial judges conclusion that Fasco was 100 percent liable for the
    fire.

(2)

The Motion Judges
    Decision

[12]

Following the parties
    submissions, the motion judge in this case gave oral reasons. She held that, in
    light of the judgments in the Quebec Actions, Fascos defences to Venmars
    claims for contribution and indemnity in the Ontario Actions should be struck
on the basis of cause of action estoppel, issue
    estoppel and abuse of process.

(a)

Res Judicata
 Cause of Action Estoppel

[13]

The motion judge applied the test
    for cause of action estoppel set out recently by this court in
The Catalyst Capital Group Inc. v.
    VimpelCom Ltd.
, 2019 ONCA 354, 145
    O.R. (3d) 759, leave to appeal refused, [2019] S.C.C.A. No. 284. She stated:

There is a specific test that has to be met to establish this
    type of estoppel and it has four requirements to it as follows:

There is a final decision of a court of competent
    jurisdiction in a prior action. This is conceded by the responding parties and
    is not at issue here;

The second requirement is the parties to the subsequent
    litigation were parties to, or in privy with the parties to the prior action;

The third requirement, the cause of action in the prior
    action is not separate and distinct and;

Fourthly, the basis of the cause of the action and the
    subsequent action was argued or
could
have been argued
in the prior action, if the parties had
    exercised reasonable diligence. [Emphasis in original.]

[14]

No issue is taken with the motion
    judges findings that the first two requirements were satisfied. With respect
    to the third requirement, the motion judge noted that the term cause of
    action refers to a factual situation which entitles one to a remedy.
    Accordingly, the pertinent question at this step was whether the facts that
    formed the basis for the apportionment of liability in the Quebec Actions were
    substantially the same as those forming the basis for assessing Venmars claims
    for contribution and indemnity in the Ontario Actions. The motion judge
    answered this question in the affirmative.

[15]

More specifically, the motion
    judge found that the factual findings in the Quebec Actions are almost
    identical to the observations of the experts and witnesses in the present case
    and that the apportionment of liability in the Quebec Actions would thus be the
    same in the Ontario Actions. She held:

In [the Quebec Actions], in determining fault, the court
    focused on what component of the HRV was responsible for the outbreak of the
    fire, which party was responsible for the design of the HRV, and the steps
    taken by Venmar and Fasco to notify each other and end-users of the potential
    danger.

The court finds that these are the same issues an Ontario court
    would be analyzing in this trial, if it were to make its own determination of
    fault between Venmar and Fasco.

[16]

With respect to the fourth
    requirement, the motion judge found that any arguments in relation to
    contribution and indemnity between the parties, such as the contractual defence
    that Fasco sought to raise in the Ontario Actions, could have been raised in
    the Quebec Actions if Fasco had exercised reasonable diligence. She found that
    Fasco failed to raise such arguments in the Quebec Actions for tactical
    reasons. She concluded that [a]ll aspects related to the respective fault of
    the parties properly belonged to the matters in the Quebec Actions and that
    Fasco could not now raise these arguments in the Ontario Actions.

(b)

Res Judicata
 Issue Estoppel

[17]

The motion judge held that if she
    was wrong in her finding that
res judicata
applied under the
    doctrine of cause of action estoppel, then issue estoppel applied, and
    prevented Fasco from re-litigating certain findings of fact and issues of mixed
    fact and law that already had been determined in the prior proceedings.

[18]

She relied on the test from the
    Supreme Court of Canadas decision in
Danyluk v. Ainsworth Technologies Inc
, 2001 SCC 44, [2001] 2 S.C.R. 460, which includes
    three preconditions for the application of issue estoppel. The motion judge
    stated:

The preconditions are: (1) that the same question has been
    decided; (2) that the judicial decision which is said to create estoppel was
    final - that has been conceded here and is not an issue and; (3) that the
    parties to the judicial decision or their privies were the same persons as to
    the parties to the proceedings in which the estoppel was raised.

[19]

The motion judge listed a number
    of issues of fact and mixed fact and law that, in her view, were determined by
    and fundamental to the decisions of the Quebec courts.

1. That Fasco bears 100% of the fault for the
    overheating of the HRVs motor and failure of the motors thermal protection;

2. That the learned intermediary r[u]le does
    not apply to relieve Fasco of liability;

3. It was possible for Fasco to discover the
    safety defect in the thermal protector at the time that it was manufactured;

4. That Venmar could not have expected that
    the motor would overheat and catch fire at the end of its life;

5. Fasco did not fully apprise Venmar of the
    dangers of the motor and lastly;

6. Venmar did not know as much as Fasco about
    motors and their components
.

[20]

The motion judge held that the
    issue of the respective fault of Venmar and Fasco was finally decided in the
    Quebec Actions.
She found that
the same questions that will need to be
    asked in these proceedings have already been asked and answered in [the Quebec
    Actions].

[21]

Finally, the motion judge held
    that there was no reason to exercise her discretion to decline to apply issue
    estoppel. She noted that there was no assertion that the court proceedings in
    Quebec were unfair, and the fact that issues were decided under Quebec law was
    irrelevant to the issue of fairness in applying issue estoppel to findings of
    fact, because the burden of proof for a finding of fact is the same in Quebec
    and Ontario.

(c)

Abuse of Process

[22]

The motion judge then considered
    the doctrine of abuse of process in the event that she was wrong in her
    holdings on cause of action estoppel and issue estoppel. The motion judge
    identified that the doctrine of abuse of process can apply where the
    requirements of
res
    judicata
are not met, but where the
    litigation would violate the principle of judicial economy, consistency,
    finality, and integrity of the administration of justice.

[23]

The motion judge held that Fasco
    was attempting to raise defences to issues that had already been determined in
    Quebec while relying on almost identical facts. Additionally, she held that
    Fasco chose not to raise a contractual defence in the earlier proceedings, and
    this was not a case where the defence was based on new evidence that could not
    have been discovered with reasonable diligence in the prior proceeding. In her
    view, Fasco should not be permitted a second chance to defend itself on the
    same issues. The pleadings were an abuse of process. These reasons, and the
    motion judges observation that the proceedings in the Quebec action were not
    unfair, also informed her decision not to exercise her residual discretion to
    decline to apply the doctrine of abuse of process.

III.

GROUNDS OF APPEAL

[24]

Fasco advances several grounds of
    appeal, which can be organized under the following headings:

i)

Did the motion judge apply the correct test under r. 21.01(3)(d)?

ii)

Did the motion judge err in striking Fascos defences on the basis of
    cause of action estoppel:

a.

because the cause of action in the Quebec Actions was separate and
    distinct from the cause of action in the Ontario Actions; or

b.

because she erred in finding that the contractual argument Fasco sought
    to raise in the Ontario Actions properly belonged to the Quebec Actions?

iii)

Did the motion judge err in striking Fascos defences on the basis of
    issue estoppel?

iv)

Did
    the motion judge err in striking Fascos defences on the basis of abuse of
    process?

v)

Did the motion judge err by not exercising her residual discretion to
    decline to apply the doctrines of
res judicata
or issue estoppel?

IV.

REVIEW OF GENERAL PRINCIPLES

[25]

I will briefly review several
    legal principles that were referred to by the parties in their written and oral
    argument to give context to the issues Fasco raises on this appeal.

(1)

Rule 21.01(3)(d)

[26]

Rule 21.01(3)(d) provides:

21.01(3) A defendant may move before a judge to have
    an action stayed or dismissed on the ground that,

(d) the action is frivolous or vexatious or is
    otherwise an abuse of process of the court

[27]

When a party moves under r.
    21.01(3)(d) to strike pleadings on the basis of
res judicata
or abuse of process, it bears the onus of satisfying the plain and obvious
    test. This test is more commonly applied under r. 21.01(1)(b) to strike out
    claims that disclose no reasonable cause of action, following the Supreme
    Courts decision in
Hunt
    v. T&N plc
, [1990] 2 S.C.R. 959.
    However, this court has affirmed that the same test also applies under r. 21.01(3)(d).
    In
Simone Estate v.
    Cheifetz
(2005), 201 O.A.C. 120
    (C.A.), at paras. 24-25, this court noted that on a r. 21 motion to strike
    pleadings on the basis of issue estoppel and abuse of process, the moving party
    bears a heavy onus and must establish that it is plain, obvious and beyond
    doubt that the plea could not succeed. In
Waterloo (City) v. Wolfraim
, 2007 ONCA 732, 287 D.L.R. (4th) 65, at para. 3, this
    court re-iterated that [a] court should invoke its authority to stay an action
    for abuse of process only in the clearest of cases.

Similarly,
    in
Salasel v. Cuthbertson
, 2015 ONCA 115, 124 O.R. (3d) 401, at para. 8,
    this court held that [a] court only invokes its authority under
    rule 21.01(3)(d)  in the
clearest
of cases (emphasis added).
[1]

[28]

Extrinsic evidence is permitted on
    a motion under r. 21.01(3)(d), and a motion judge may make factual
    determinations, including with respect to whether the facts in an underlying
    action were already litigated in earlier proceedings:
Aba-Alkhail v. University of Ottawa
, 2013 ONCA 633, 311 O.A.C. 89, at paras. 13-14, leave
    to appeal refused, [2013] S.C.C.A. No. 491. The rule requires a motion judge to
    take a hard look at the factual background, and especially the position and
    conduct of the parties:
Salasel
, at para. 9.

[29]

To summarize, Venmar
    had the onus of proving that it was plain and obvious that Fascos defences to
    Venmars claim for contribution and indemnity could not succeed, due to the
    application of
res judicata
or abuse of process.

(2)

Res

Judicata

[30]

The law recognizes a
    number of doctrines to prevent the abuse of the decision-making process. One of
    the doctrines is
res judicata
. In
Danyluk
, Binnie J.
    described the doctrine, at para. 18, as follows:

The law rightly seeks a finality to litigation.
    To advance that objective, it requires litigants to put their best foot forward
    to establish the truth of their allegations when first called upon to do so. A
    litigant, to use the vernacular, is only entitled to one bite at the cherry.
    An issue, once decided, should not generally be re-litigated to the benefit of
    the losing party and the harassment of the winner. A person should only be
    vexed once in the same cause. Duplicative litigation, potential inconsistent
    results, undue costs, and inconclusive proceedings are to be avoided.

[31]

Res judicata
has two main branches: cause of action estoppel and
    issue estoppel. Cause of action estoppel prohibits a litigant from bringing an
    action against another party when that same cause of action has been determined
    in earlier proceedings by a court of competent jurisdiction. Cause of action
    estoppel also prevents a party from re-litigating a claim that could have been
    raised in an earlier proceeding.

[32]

Issue estoppel is narrower. It
    applies to prohibit the re-litigation of an issue that has already been decided
    in an earlier proceeding, even where the cause of action is different in the
    two proceedings.

[33]

The overall goal of the doctrine
    of
res judicata
, and therefore of both cause of action estoppel and
    issue estoppel, is judicial finality:
Minott v. OShanter Development Co
. (1999), 42 O.R. (3d) 321 (C.A.), at paras. 16-17;
Hoque v. Montreal Trust Co. of
    Canada
, 1997 NSCA 153, 162 N.S.R.
    (2d) 321, leave to appeal refused, [1997] S.C.C.A. No. 656.

(3)

Abuse of Process

[34]

The re-litigation of issues that
    have been before the courts in a previous proceeding may create an abuse of
    process. That is because re-litigation carries serious detrimental effects and
    should be avoided unless the circumstances dictate that re-litigation is in fact
    necessary to enhance the credibility and the effectiveness of the adjudicative
    process as a whole:
Toronto
    (City) v. C.U.P.E., Local 79
, 2003
    SCC 63, [2003] 3 S.C.R. 77, at para. 52.

[35]

The law seeks to avoid
    re-litigation primarily for two reasons: first, to prevent overlap and wasting
    judicial resources; and second, to avoid the risk of inconsistent findings:
C.U.P.E.
, at para. 51; Donald J. Lange,
The Doctrine of Res Judicata in Canada
, 4th ed. (Markham: LexisNexis Canada Inc., 2015), at
    pp. 217-18.

(4)

Residual Discretion

[36]

A court may decline to apply
res judicata
or abuse of process where its application would work
    an injustice. This might occur where the first proceeding denied a party a full
    and fair hearing, even though that party exercis
ed reasonable diligence.
    Additionally, even if the first proceeding was conducted with scrupulous
    fairness, it might still be unfair to use the results of the first proceeding
    to preclude re-litigation of an issue.

[37]

It may be appropriate to exercise discretion to decline to apply
    the abuse of process doctrine when (1) the first proceeding is tainted by fraud
    or dishonesty, (2) fresh, new evidence, previously unavailable,
    conclusively impeaches the original results, or (3) fairness dictates that the
    original result should not be binding in the new context:
Catalyst
,
    at para. 68. The list of relevant factors to this discretion is not closed. The
    discretionary factors for whether to decline to apply the abuse of process
    doctrine may also apply in the context of deciding whether to apply the
    doctrine of
res judicata
.

(5)

Standard of Review

[38]

This court owes deference to the motion judges application of
    the tests for issue estoppel, cause of action estoppel, and abuse of process
    and should intervene only if the motion judge misdirected herself, came to a
    decision that is so clearly wrong as to be an injustice, or gave no or
    insufficient weight to relevant considerations:
Catalyst
,

at para. 24.

V.

DISCUSSION

(i)

Did the motion judge apply the correct test under r. 21.01(3)(d)?

[39]

Fascos first submission is that the motion judge did not apply
    the correct test; rather she applied an unprecedented approach to the r.
    21.01(3)(d) motion. Instead of determining whether it was plain and obvious
    that Fascos pleadings in response to Venmars claims were barred by
res judicata
or as an abuse of process, the motion judge
    effectively treated the motion as one for summary judgment. Fasco submits that
    she made significant inferential leaps on a paper record, including making
    findings of fact that the circumstances of the Quebec fire were the same as the
    Ontario fire. These findings of fact could have only been made after a trial.

[40]

Venmar argues that the trial judge did not err in deciding the
    motion on a paper record and that she properly considered the extrinsic
    evidence in the form of affidavits filed by both parties as permitted by r.
    21.01(3)(d). The motion judge quite properly determined that the defences
    raised by Fasco had previously been litigated and decided by a court of
    competent jurisdiction based on the unchallenged evidentiary record before her.

[41]

I agree with the appellants that the motion judge did not
    identify or apply the correct test for striking a pleading pursuant to r.
    21.01(3)(d).

[42]

As will be evident from my discussion of the other grounds of
    appeal, it is clear that the motion judge did not apply this test. Put
    differently, as I discuss below, this was not the clearest of cases as
    required by the governing case law.

(ii)

Did the motion judge err by applying cause of
    action estoppel?

[43]

Fasco
    submits that the motion judge erred in her analysis of the third and fourth
    requirements of the test for cause of action estoppel. With respect to the
    third requirement, Fasco argues that because the Quebec Actions and Ontario
    Actions involve two different fires, six years apart, it was not plain and
    obvious that the cause of action for contribution and indemnity in the two
    proceedings is the same.
It argues that the motion judge
    misconceived what it means for two causes of action to be separate and distinct
    because cause of action estoppel operates only where two cases arise out of the
    same factual foundation. The two fires were separate events.

[44]

Venmar argues that cause of action estoppel can be applied to two
    separate fires which arise from the very same conduct and the motion judge was
    entitled to examine the evidence to find that the two fires involved an
    identical cause of action. The motion judge considered evidence of the design
    of the HRV, the design of the motor, the manufacturing relationship between the
    parties, Venmars knowledge of the danger, and the failure of the motor and
    found that the relevant fact situation in the Quebec Actions was identical in
    the Ontario Actions.

[45]

While I acknowledge that there was evidence before the motion judge
    that the HRV and the motor in both fires bore similarities, I respectfully
    disagree with the motion judges decision to strike Fascos defences to
    Venmars claims on the basis of cause of action estoppel.
Venmars
    claims against Fasco for contribution and indemnity will require an assessment
    of Venmars and Fascos comparative fault.
It is not plain and
    obvious that the facts that would form the basis for the apportionment of
    liability between Venmar and Fasco in the Ontario Actions are substantially the
    same as they were in the Quebec Actions.

[46]

For
    example, Venmar may be found liable to the Dosens or their insurer in the
    Ontario Actions on a basis that was not considered and that could not have been
    fully considered in the Quebec Actions. In the Main Action, the Dosens
    pleadings allege that Venmar was aware of defects in the HRVs since early 2007
    and failed to take any proactive measures to mitigate risk of fire in the
    intervening period. Similarly, the insurers pleadings in the Companion Action
    allege that Venmar failed to properly warn consumers  that the HRV and/or
    Motor, or components thereof, was prone to fail. These arguments were not
    considered in the Quebec Actions. An Ontario court presented with these
    arguments would have to consider evidence of Venmars knowledge of the risk and
    efforts to mitigate risk, including during a period of time subsequent to the
    Quebec Actions that could not have been considered by the Quebec courts. Its
    determination could impact Venmars and Fascos relative fault.

[47]

In
    addition, it bears noting that the earlier fire occurred shortly after Venmar
    commenced a Canada-wide Safety Upgrade Program to warn customers of the issue
    with the HRV and to offer an after-market fix. While it may not have been
    reasonable to expect, in 2007, that this program would reach the homeowner in
    Quebec, by 2013, Venmar had known about the issue for over six years.
    Ultimately, this will be a matter for trial. However, this indicates that it
    was not plain and obvious that the factual basis for assessing Venmars
    potential liability for failing to warn its customers was the same in 2007 and
    in 2013. Since Venmars potential liability in this regard forms part of the
    basis for assessing its claims for contribution and indemnity in the Ontario
    Actions, I conclude that it was not plain and obvious that the cause of action
    in the Quebec Actions and Ontario Actions is the same.

[48]

In
    oral submissions, Fasco advanced a further argument, concerning the nature of a
    claim for contribution and indemnity, to explain why the third requirement of
    cause of action estoppel was not satisfied. According to Fasco, this courts
    decision in
Placzek v. Green
, 2009 ONCA 83,
    245 O.A.C. 220, established that the basis for a claim of contribution and
    indemnity is the failure of a concurrent tortfeasor to pay its share of the
    injured partys damages, before the contribution and indemnity claimant is
    found liable to the injured party. Drawing on this decision, Fasco claims that
    the basis for Venmars claims of contribution and indemnity does not simply lie
    in Fascos alleged wrongdoing, related to, for example, its design of the
    motor. Rather, it argues that Venmars claims for contribution and indemnity
    depend on Fascos failure to pay for its share of the damages related to the
    fire in Ontario before Venmar is found liable in relation to this fire.

[49]

Of
    course, Fascos failure to pay its share of damages related to a fire that
    broke out in 2013 could not have been the basis for a claim for contribution
    and indemnity against Fasco at the time of the Quebec Actions. Therefore, Fasco
    says, a claim for contribution and indemnity for damages arising in 2007 is
    necessarily separate and distinct from a claim for contribution and indemnity based
    on events arising in 2013and this means the causes of actions in the two sets
    of proceedings cannot be the same.

[50]

Without
    commenting upon the ultimate strength of this submission, I find that it is at
    least arguable, and reinforces my conclusion that it was not plain and obvious
    that the cause of action in the Quebec Actions is the same as in the Ontario
    Actions.

[51]

The
    motion judges error with respect to the third requirement of cause of action
    estoppel is sufficient to dispose of this appeal since, as explained below, the
    same error carried over into her analysis of issue estoppel and abuse of
    process. Nevertheless, I will also consider Fascos argument that the motion
    judge erred with respect to the fourth requirement of cause of action estoppel,
    when she held that Fascos contractual indemnity defence should have been
    argued in the Quebec Actions. The motion judges ruling effectively precludes
    Fasco from raising the terms of any contract that allocates risk between it and
    Venmar.

[52]

I
    conclude that the motion judge erred in her analysis of the fourth requirement
    of cause of action estoppel. It was not plain and obvious that Fasco
should
have advanced an argument
    based on contractual indemnity in the Quebec Actions.

[53]

An
    unchallenged affidavit from Fascos appeal counsel in the Quebec Actions was
    before the motion judge. It made three significant points.

[54]

First,
    whether there was a contract between Fasco and Venmar that governed allocation
    of fault was not argued in the Quebec Actions.
[2]
Second, given the modest amount of the claim in the Quebec Actions, Fasco chose
    to focus its defence on a narrow issue of causation. Raising contractual issues
    would not have been proportional to the claim (which was for an amount of
    $86,000, with a $13,000 deductible). Third, the decision not to raise
    contractual issues was based in part on the law governing manufacturer
    liability in Quebec. In connection with this latter point, I note that a court
    requires expert evidence to decide issues involving the content of foreign law:
Das v. George Weston Limited
, 2018 ONCA 1053,
    43 E.T.R. (4th) 173, at para. 67, leave to appeal refused, [2019] S.C.C.A. No.
    69. There was no expert evidence on the content of Quebec law before the motion
    judge, only the unchallenged affidavit that stated that Fascos decision to
    focus its defence on a single issue was informed by the nature of Quebec law.
    The motion judge did not consider the absence of expert evidence on Quebec law
    in reaching the conclusion that Fasco would simply have to live with the tactical
    decisions it made in the Quebec Actions.

[55]

Leaving
    aside the fact that a much larger sum of money is at stake in the Ontario
    Actions, the issue of contribution and indemnity, and the effect of any
    contract, is now squarely before the Ontario court. Venmar has brought the
    issue of the contract with Fasco into focus, since its third-party claim
    alleges that it may be entitled to indemnity from Fasco on account of breach of
    contract. It is not plain and obvious that Fasco
should
be precluded from now raising its contractual
    argument.

[56]

I
    would give effect to this ground of appeal. The motion judge erred in striking
    Fascos defences based on cause of action estoppel.

(iii)

Did the motion judge err in striking Fascos defences on the basis of
    issue estoppel?

[57]

The
    motion judge held that if she was wrong in her conclusion that cause of action
    estoppel applied, then issue estoppel should be invoked to strike Fascos
    pleadings. Fasco argues that the motion judge erred with respect to the first
    precondition for issue estoppel, concerning whether the same question (or
    issue) raised in the Ontario Actions has been decided in the Quebec Actions.

[58]

Since
    the relief Venmar sought on its r. 21.01(3)(d) motion was to strike the
    entirety of Fascos defences to Venmars claims for contribution and indemnity,
the real issue for the motion judge, in considering the first
    precondition, was whether it was plain and obvious that the question of the
    parties relative fault that was determined in the Quebec Actions was the same
    as the question at issue between Venmar and Fasco in the Ontario Actions.

[59]

The same question test was described by Goudge J.A. in
Heynen
    v. Frito Lay Canada Ltd.
(1999), 45 O.R. (3d) 776 (C.A.), at para. 20, as
    follows:

Although at a high level of generalization,
    two proceedings might seem to address the same question, this requirement of
    issue estoppel is met only if on careful analysis of the relevant facts and
    applicable law the answer to the specific question in the earlier proceeding
    can be said to determine the issue in the subsequent proceeding.

[60]

In light of my conclusion regarding the cause of action estoppel
    issue, it was not plain and obvious that Venmar satisfied the same question
    test. Again,
it is at least arguable that the factual foundation for
    Venmars claims of contribution and indemnity was altered in the years
    following the fire at issue in the Quebec Actions.
Accordingly, I would also give effect to this ground of appeal.

[61]

As noted above, the motion judge appeared to generally consider
    which aspects of the Quebec litigation would raise an issue estoppel. It was
    not necessary for the motion judge to take this approach. She found that Fasco
    was precluded from re-litigating specific factsfor example, that Venmar did
    not know as much as Fasco about motors and their components. However, this was
    not at issue on the motion to determine if Fascos pleadings should be struck
    in their
entirety
. The result of the motion
    judges findings could have only been to strike the portion of Fascos defences
    that sought to put that fact back in issue in the Ontario litigation.

[62]

The motion judge erred in striking Fascos pleadings in their
    entirety on the basis of issue estoppel. I note that this does not foreclose an
    argument that issue estoppel may apply to certain factual determinations made
    in the Quebec Actions. However, since the question of whether or not issue
    estoppel applied to any specific factual determination made in the Quebec
    Actions, was not at issue in the motion, it should be deferred until the trial
    of the Ontario Actions.
The judge hearing the matter will be in a better
    position to define the factual issues in respect of which issue estoppel may apply.

(iv)

Did the motion judge err in striking Fascos defences on the basis of
    abuse of process?

[63]

The motion judge found that the doctrine of abuse of process also
    applied to bar Fascos defences. I agree with Fasco that the motion judges
    findings of abuse are tethered to her finding that cause of action estoppel
    barred Fascos pleadings. The core of the motion judges reasons on abuse of
    process was that Fasco is attempting to raise defences which have already been
    determined in [the Quebec Actions] on the basis of almost identical facts.

[64]

Accordingly, for the reasons noted above in relation to cause of
    action estoppel, it was not plain and obvious that Fascos pleadings were
    abusive. I would give effect to this ground of appeal.

(v)

Did the motion judge err in declining to exercise her residual
    discretion to refuse to strike Fascos pleadings?

[65]

Finally, Fasco argues that the motion judge should have exercised
    her residual discretion to decline to apply
res judicata
and abuse of
    process.

[66]

Venmar responds that this residual discretion is rarely exercised in
    the court-to-court context and that the motion judge specifically found that
    the Quebec proceedings were fair. Since there was no unfairness in the Quebec
    proceedings, the motion judge correctly refused to exercise her residual
    discretion and allowed Venmars motion.

[67]

Since I have concluded that the motion judge
    erred by applying
res judicata
and abuse of process to strike Fascos
    pleadings, it is not necessary to consider if the motion judge also erred by
    refusing to exercise her discretion to not apply these doctrines. That said, I
    agree with Venmars submission that if the preconditions for applying these
    doctrines were satisfied, the motion judges residual discretion would have
    been very limited since the first proceeding giving rise to the estoppel was
    a court proceeding:
Danyluk
, at para. 62. It seems to me that Fasco
    faced an uphill climb in advancing the argument that the motion judge should
    exercise her discretion to refuse to strike its pleadings.

[68]

Furthermore,
    though it is not necessary to address this ground of appeal, I wish to offer
    some remarks concerning the timeliness of Venmars r. 21.01(3)(d) motion, since
    it was addressed by the parties in oral argument, and is relevant to the issue
    of the motion judges residual discretion.

[69]

Rule
    21.02 provides that A motion under rule 21.01 shall be made promptly and a
    failure to do so may be taken into account by the court in awarding costs. The
    motion judge did not reference this rule but stated that while
she did not condone the lateness of Venmars motion, the fact it was
    brought late did not detract from its merits.

[70]

Without
    determining that the motion judge erred in the exercise of her discretion, I
    note that, in the circumstances, the timing of Venmars motion should have
    pulled her towards exercising her discretion to not hear Venmars motion in the
    first place, or to exercise her residual discretion to not grant the relief
    that Venmar sought. Venmars motion was contemplated in the summer of 2019, but
    was not brought until October 4, 2019, and it was heard just three weeks before
    trial.

[71]

Case law is clear that delay in bringing a motion under r. 21.01,
    including r. 21.01(3)(d), can be a sufficient ground to dismiss the
    motion. In
Fleet Street Financial Corp. v. Levinson
, [2003] O.T.C. 94
    (S.C.), Rouleau J. (as he then was), stated, at para. 16:

The obligation to act promptly is clear and
    the failure to bring a rule 21.01 motion promptly can, in the appropriate
    circumstances, be the basis for the judge exercising his discretion pursuant to
    rule 21.01 not to grant the relief sought.

[72]

What constitutes appropriate circumstances to dismiss a r. 21.01
    motion for delay partly depends on what effect the motion will have on trial
    efficiency.

[73]

For example, in
Hill v. Hamilton-Wentworth Regional Police
    Services Board
(2003), 64 O.R. (3d) 28 (S.C.), leave to appeal refused,
    [2003] O.J. No. 1820 (Div. Ct.), a motion under r. 21.01(3)(d) was brought
    years after the litigation commenced, all examinations for discovery have been
    completed, and a fixed trial date has been set: at para. 45. There was no
    justification for the delay. The motion judge also noted that the issues to be
    dealt with on the motion would also arise with respect to some of the moving
    parties other claims at trial. Accordingly, dealing with the issues before the
    trial would risk compromising the record at this late stage in the
    proceedings and not enhance trial efficiency: at para. 48. On that basis,
    the motion was dismissed for delay.

[74]

Similarly, in this case, the benefits of hearing and resolving
    Venmars r. 21.01(3)(d) motion, in terms of judicial economy or trial
    efficiency, were marginal. It appears that much of the same evidence and
    similar issues will nonetheless be considered at trial. For example, even if
    Fascos defences were properly struck because the issue of Fasco and Venmars
    relative fault was finally determined in the Quebec Actions, a judge in the
    Ontario Actions would nonetheless have to hear issues concerning Venmars
    potential liability for failure to warn or negligence in assembly or testing of
    the HRV, in relation to the Dosens and their insurers claims. The motion judge
    should have considered this fact and looked at the litigation as a whole. In my
    opinion, it should have weighed heavily in the analysis as to whether the
    discretion to dismiss the motion or to refuse to apply the doctrines should
    been exercised.

VI.

CONCLUSION

[75]

In conclusion, the motion judge erred by not applying the plain and
    obvious test to determine whether the cause of action in the Quebec Actions was
    separate and distinct from the cause of action in the Ontario Actions, whether
    Fasco should have raised any contractual defences in the Quebec Actions,
    whether the principle of issue estoppel applied to strike Fascos pleadings in
    their entirety, and whether Fascos pleadings were an abuse of process.

[76]

For these reasons, I would allow the appeal. I would award Fasco its
    costs of the appeal in the agreed amount of $35,000, inclusive of disbursements
    and applicable taxes.

Released: March 5, 2021 S.E.P.

S.
    Coroza J.A.

I
    agree. S.E. Pepall J.A.

I
    agree. M.L. Benotto J.A.

[1]
Other provincial appellate courts have held that the plain and
    obvious test applies on a motion to strike pleadings on the basis of cause of
    action estoppel, issue estoppel or abuse of process
: World Wide Treasure Adventures Inc. v. Trivia
    Games Inc.
(1996), 17 B.C.L.R. (3d) 187 (C.A.), at para. 39;
Mohl v. University of British Columbia
,
    2006 BCCA 70, 52 B.C.L.R. (4th) 89, at paras. 41-42; and
Hozaima v. Perry
, 2010 MBCA 21, 251 Man.
    R. (2d) 148, at para. 44.

[2]
During oral argument before this court, Fascos counsel confirmed
    that neither party raised contribution and indemnity in the Quebec Actions.