COURT OF APPEAL FOR ONTARIO

CITATION: McGregor v. Pitawanakwat, 2017 ONCA 77

DATE: 20170127

DOCKET: C60456

Laskin, Feldman and Hourigan JJ.A.

BETWEEN

Robert Joseph McGregor

Respondent (Applicant)

and

Mary Angela McGregor Pitawanakwat

Appellant (Respondent)

Nicole Marcus, for the appellant

Eric Hovius, for the respondent

Heard: September 6, 2016

On appeal from the order of Justice R. Dan Cornell of the
    Superior Court of Justice, dated March 11, 2015 and from his costs award dated
    May 22, 2015, reported at 2015 ONSC 3263, 2015 CarswellOnt 7616.

Laskin J.A.:

A.

Overview

[1]

The appellant, Mary Pitawanakwat, and the respondent, Robert McGregor,
    are sister and brother. Both are members of the Whitefish River First Nation,
    located in the district of Manitoulin. Their underlying dispute is over
    possession of a parcel of land  Lot 15  on the Whitefish reserve.

[2]

The parties parents owned Lot 15. In July 1988, they transferred
    possession of it to McGregor. A Certificate of Possession in his name was
    registered under the
Indian Act
, R.S.C., 1985, c. I-5.

[3]

In April 2010, Pitawanakwat moved into a house on Lot 15. She claims she
    is entitled to possession, because in 2009 her parents orally gifted the lot
    and the house to her, a gift they later confirmed by an addition to their will
    in February 2011. The parties father died in late 2011, and their mother died
    a few months later. After their deaths, Pitawanakwat continued to live on Lot
    15. She claims to have made improvements to the property in the rough amount of
    $29,000. But she paid no occupation rent.
[1]

[4]

Then, in January 2014, McGregor brought an application to determine
    possession of Lot 15. He eventually also sought an order evicting Pitawanakwat
    from the property. After numerous adjournments, the application was heard in
    March 2015. Although Pitawanakwat had had a lawyer, she chose to represent
    herself at the hearing.

[5]

The application judge found for McGregor and ordered Pitawanakwats
    eviction. He held that the Certificate of Possession registered in 1988 was
    valid. He found as a fact that there was no evidence to support Pitawanakwats
    allegation of an oral gift from her parents. And he noted that the addition to
    the will that Pitawanakwat relied on transferred Lot 14, not Lot 15. Finally,
    he concluded that neither the alleged gift nor the addition to the will could
    assist Pitawanakwats claim, because by then, her parents no longer had an
    interest in Lot 15  they had transferred their interest to McGregor. The
    application judge ordered substantial indemnity costs against Pitawanakwat of
    approximately $24,000.

[6]

On appeal, Pitawanakwat does not challenge the correctness of the
    application judges decision. She puts forward no argument to suggest that McGregors
    Certificate of Possession is invalid. Instead, her main submission is that she
    was denied a fair hearing.

[7]

She contends she was denied a fair hearing for two reasons: (1) the
    application judge unreasonably refused an adjournment to permit her to retain a
    lawyer, lead further evidence, and give notice of a constitutional question
    concerning the impact of Anishinaabe custom on the property provisions of the
Indian
    Act
; and (2) the application judges conduct of the hearing gave rise to a
    reasonable apprehension of bias.

[8]

Pitawanakwats secondary submission is that the application judges
    order for substantial indemnity costs was excessive and unfair. She seeks leave
    to appeal costs and an order setting aside the costs order.

B.

ISSUES

(1)

Was Pitawanakwat denied a fair hearing?

[9]

As I said, Pitawanakwats submission that she was denied a fair hearing
    rests on two planks: the application judge unreasonably refused an adjournment,
    and his conduct of the hearing gave rise to a reasonable apprehension of bias. I
    note a few preliminary points.

[10]

In assessing Pitawanakwats submission, I take into account that she did
    not have a lawyer at the hearing. The record shows that she did have a lawyer
    between November 2014 and February 2015, and apparently during this period, the
    parties had made progress toward settling their dispute. Why Pitawanakwats
    relationship with her lawyer broke down so soon before the hearing is unclear
    from the record.

[11]

But as well as taking into account Pitawanakwats self-representation, I
    also take into account her level of sophistication. In his costs endorsement,
    the application judge characterized her as follows:

The respondent is an intelligent and educated person. She
    indicated that she had attended Osgoode Hall Law School and that she had taught
    as a university professor. It was clear during the course of the proceedings
    that the respondent is quite familiar with the legal system as evidenced by the
    articulate manner in which she presented her case.

Pitawanakwat does not dispute the application judges
    characterization of her.

[12]

A final preliminary point is that the denial of a fair hearing is a free-standing
    ground of review. A correct decision cannot cure an unfair hearing, because the
    unfairness would taint the entire proceedings: see
R. v. S. (R.D.)
, [1997]
    3 S.C.R. 484, at para. 100.

(a)

The application judges refusal to grant an adjournment

[13]

An application judges decision whether to grant or refuse an
    adjournment is discretionary and thus attracts a high degree of deference from
    this court. In exercising this discretion, an application judge should take
    into account the interest of the applicant, the interest of the respondent, and
    the interest of the administration of justice in the timely resolution of the
    dispute:
Khimji v. Dhanani
, 182 O.A.C. 142, at para. 14. The
    application judge in this case took these interests into account, and his
    refusal to grant an adjournment was a reasonable exercise of his discretion. In
    support of his refusal, I make the following four points.

[14]

First, although in this court Pitawanakwat asserted she did not
    appreciate that the hearing would resolve entitlement to Lot 15, that assertion
    is at odds with the record. At no point during the hearing did she tell the
    application judge she did not understand he would be deciding the issue of
    possession of Lot 15. Moreover, early on in the hearing itself, she assured the
    application judge she could properly present her case.

[15]

Second, the application judges refusal to grant an adjournment has to
    be assessed in the context of the number of adjournments that had previously
    been granted. The application was brought in January 2014. In April 2014, it
    was adjourned to July to permit Pitawanakwat to retain counsel and file
    responding material. In July 2014, the application was adjourned to late
    September and then again to February 2015, before being finally heard on March
    11, 2015. By then, almost 14 months had elapsed since McGregor initiated his
    application. Throughout this entire period, Pitawanakwat continued to live in a
    house on Lot 15 without paying rent. The interests of McGregor and the
    administration of justice supported the application judges refusal.

[16]

Third, Pitawanakwats contention that she needed more time to raise
    constitutional issues does not withstand scrutiny. Soon after McGregor started
    his application, Pitawanakwat suggested there were constitutional issues that
    needed to be decided. These issues, she said, related to the interplay between
    the
Indian Act
and Anishinaabe custom. She discussed raising these
    constitutional issues in a case management conference with Del Frate J. on
    August 31, 2014. He gave her three weeks to serve a notice of constitutional question
    on the federal government. She did not do so. And she did not do so after the
    expiry of Del Frate J.s order, in the three months when she had a lawyer. Even
    in this court, she did not file a draft notice or put forward any argument that
    her constitutional issue had merit.

[17]

Finally, the application judge gave Pitawanakwat wide latitude to
    present her case, including allowing her to refer to certain documents that
    were not formally part of the record. In this court, though she had counsel,
    she did not seek to file fresh evidence or any further material that might have
    supported her position.

[18]

For these reasons, I would not give effect to Pitawanakwats submission
    that the application judge erred in refusing to adjourn the application.

(b)

Reasonable apprehension of bias

[19]

The threshold for showing bias is appropriately high. We presume judges
    will be impartial. We presume they will carry out their oath of office and act
    fairly to litigants. This high threshold requires cogent evidence to make out a
    claim of bias. The standard is objective. The test the party alleging bias must
    meet is whether an informed person, viewing the matter realistically, and
    having thought the matter through, would conclude that the trial or application
    judge would not decide the matter fairly:
Committee for Justice and Liberty
    v. Canada (National Energy Board)
, [1978] 1 S.C.R. 369, at p. 394.

[20]

This test recognizes that appearances count. Justice must not only be
    done, it must appear to be done. Thus, the test captures both actual bias,
    which is rarely alleged, and the appearance of bias, which is more commonly
    alleged and which is alleged on this appeal.

[21]

In assessing a claim alleging an appearance of bias, a reviewing court
    has to examine the judges conduct of the entire trial or hearing. Instances of
    alleged improper conduct must be considered cumulatively, but the odd
    inappropriate comment during the course of a long hearing will be unlikely to
    establish a reasonable apprehension of bias:
S. (R.D.)
, at para. 134.

[22]

In the present appeal, Pitawanakwat submits that the application judge
    made two sorts of comments that gave rise to a reasonable apprehension of bias:
    he made comments showing he had prejudged the case against her; and he made
    comments that were sarcastic and denigrated her and thus presumably showed his
    lack of impartiality. If made out, either sort of comment could give rise to a
    reasonable apprehension of bias. But my examination of the record leads me to
    conclude that the application judge neither prejudged the case nor treated
    Pitawanakwat unfairly. On the contrary, he conducted a fair hearing, and he
    gave Pitawanakwat a full opportunity to present her case, including trying to
    assist her in her presentation.

(i)

Alleged prejudgment

[23]

Pitawanakwat cites two examples to show that the application judge prejudged
    the case against her: early in the hearing, he commented justice delayed is
    justice denied; and later in the hearing, he had a lengthy dialogue with
    counsel for McGregor over the form of the order, should McGregor be successful
    on the application. Neither example supports Pitawanakwats argument.

[24]

The application judge made the comment justice delayed is justice
    denied in considering Pitawanakwats adjournment request. The comment was an
    appropriate consideration in determining whether to grant an adjournment. Also,
    right after refusing an adjournment, the application judge explained why he
    made the comment and then assured Pitawanakwat he had not already decided the
    case:

Let me provide you with my absolute assurance, Ms. Pitawanakwat,
    that I have not made up my mind about this proceedingI will put to you, you
    have completely misinterpreted my comment that justice delayed is justice
    denied. I simply put that forward as one of the competing considerations that I
    must take into consideration in assessing your request for an adjournment. So
    rest assured that I have not made up my mind in terms of the merits of this
    application.

[25]

A trial or application judge commonly discusses with counsel the form of
    the order sought if the client is successful. That the application judge did so
    in this case did not show prejudgment. He especially wanted the assistance of
    McGregors counsel, because Lot 15 was on an Indian reserve, and so the order,
    if granted, would have to take into account possession and ownership of reserve
    land.

[26]

I conclude that nothing in the record shows that the application judge
    had prejudged the case.

(ii)

Alleged sarcastic and denigrating comments

[27]

Pitawanakwat cited several of the application judges comments, which
    she maintains were sarcastic and denigrated her position. On appeal, we are
    reviewing the transcripts of the proceedings, so we cannot assess the tone of
    the application judges comments. But on reading them, none of the comments
    Pitawanakwat relies on reflects sarcasm or denigration of her position. One or
    two may show the application judges impatience, but nothing more.
    Cumulatively, they do not give rise to a reasonable apprehension of bias. Only
    a few require some explanation.

[28]

Pitawanakwat introduced her argument speaking in her native language,
    Anishinaabemowin, which she claims is required of women of Anishinaabe
    heritage. Before she finished her introduction, the application judge
    interrupted her and said: Ms. Pitawanakwat, lets not play games here, shall
    we. Still, the application judge let Pitawanakwat explain why she had begun
    her submissions in her native language. He was perhaps a little impatient and
    understandably frustrated, because, as he explained to Pitawanakwat, he did not
    understand her language, and she had not provided an interpreter. He asked her
    to make her submissions in English, and she did.

[29]

During the hearing, the parties had a lengthy discussion with the
    application judge about the requirements of the
Indian Act
for a
    transfer of land in 1988. Pitawanakwat seemed to suggest that the transfer to
    McGregor in 1988 required a band resolution, and there had been none.
    McGregors counsel pointed out that the requirement for a band resolution came
    into effect when the
Indian Act
was amended in 1994. Three of the
    application judges comments that Pitawanakwat relies on to make out her claim
    of bias occurred during this discussion about the requirements of the
Indian
    Act
.

·

Early on in the discussion, the application judge commented to
    Pitawanakwat: lets not beat around the bush, shall we. I mean there shouldnt
    be any room for argument in terms of what the statute required in 1988. In
    making this comment, the application judge was simply asking Pitawanakwat to
    directly address the point counsel for McGregor had made, that in 1988, no band
    resolution was required for a transfer of land under the
Indian Act
, as that requirement only
came into
    effect in 1994.

·

Later during the discussion, Pitawanakwat referred to her copy of
    the
Indian Act
. The application judge repeatedly asked her whether the
    copy she had reflected the provisions in effect in 1988. When she did not give
    a straightforward answer, he commented: I dont want to talk about should, if,
    would have, could have, its a black or white question, it either was or it was
    not. Again, the application judge was doing nothing more than trying to
    clarify the
Indian Act
s requirements for a transfer of land in 1988, and
    specifically, whether the band had to agree by resolution to the transfer to
    McGregor.

·

Pitawanakwat continued to avoid directly answering the
    application judges question as to whether a band resolution was required for a
    transfer in 1988. The application judge understandably commented: youre
    making this very difficult on me.

[30]

None of these comments, taken together, give rise to disqualifying bias.
    The hearing lasted nearly a full day. The application judge gave Pitawanakwat
    an opportunity to put forward all of her arguments. She was not denied a fair
    hearing. I would not give effect to her main ground of appeal.

(2)

Was the award of substantial indemnity costs excessive and unfair?

[31]

The application judge ordered substantial indemnity costs against
    Pitawanakwat in the amount of $24,383.82, inclusive of disbursements. Pitawanakwat
    contends that the award of substantial indemnity costs was excessive and
    unfair. She asks to set aside the costs award.

[32]

Pitawanakwat does not have a right to appeal the costs award. She must
    obtain leave of this court to do so. This court rarely grants leave, because
    costs orders are discretionary, and we do not lightly interfere with them. A
    party seeking leave to appeal a costs order must show that the judge exercised
    this discretion unreasonably. In my view this is one of those rare cases in
    which leave should be granted and the application judges cost award should be
    set aside.

[33]

The application judge based his order of substantial indemnity costs on
    two factors: Pitawanakwat unreasonably delayed the proceedings against her; and
    her defence had no merit. He summarized his conclusion at para. 8 of his
    reasons on costs:

It is clear that the respondent acted in a most unreasonable
    manner by delaying the process as long as possible and presenting a defence
    that had no prospect of success. I find that the actions of the respondent rise
    to a level of reprehensible conduct and accordingly I award substantial
    indemnity costs.

[34]

In his reasons, the application judge gave particulars for his
    conclusion:

·

Pitawanakwat
    repudiated a settlement of the litigation reached by her lawyer and the lawyer
    for McGregor;

·

She
    asked for a further adjournment to serve a notice of constitutional question
    after having failed to comply with the order of Del Frate J.;

·

The
    record shows she was going to delay the proceedings in any way she could, which
    increased McGregors legal costs; and

·

Her
    position on the merits depended on a will under which she would inherit Lot 14,
    not Lot 15, which she claimed in this litigation.

[35]

Reprehensible conduct is a proper basis for an award of substantial
    indemnity costs. But I do not consider Pitawanakwats conduct to have been
    reprehensible, and the particulars relied on by the application judge do not
    support such a finding.

[36]

First, the record does not show that the parties had previously reached
    a settlement. At most, as McGregors counsel said during the hearing, we were
    moving closer and closer to hopefully resolving this. Thus the application
    judge was wrong to say Pitawanakwat had repudiated a settlement.

[37]

Second, asking for a further adjournment hardly amounts to reprehensible
    conduct. Pitawanakwats adjournment request was refused so it did not cause
    further delay.

[38]

Third, although the proceedings had been ongoing for 14 months, Pitawanakwat
    had done nothing to delay them beyond asking for adjournments, which the court
    had granted.

[39]

Finally, though Pitawanakwats claim appeared to have little or no
    merit, she nonetheless had been living on Lot 15 for nearly four years before
    McGregor started this application to evict her. Understandably, perhaps, she
    honestly believed she had a legal basis to remain there. That she opposed the
    application to evict her does not support the kind of reprehensible or
    outrageous conduct necessary to justify an award of substantial indemnity
    costs.

[40]

I would grant leave to appeal costs, set aside the application judges
    cost award and in its place substitute an award of partial indemnity costs for
    the application in the amount of $15,000, inclusive of disbursements.

C.

Conclusion

[41]

I would dismiss the main ground of appeal, that Pitawanakwat was denied
    a fair hearing. I would, however, grant leave to appeal costs, allow the costs
    appeal, and reduce the award for the costs of the application from $24,383.82
    ($20,000 in fees and $4,383.82 in disbursements) to $15,000 inclusive of
    disbursements.

[42]

As McGregor has been substantially successful on the appeal, I would
    award him the costs of the appeal in the amount of $6,000 inclusive of
    disbursements and applicable taxes.

Released: January 27, 2017 (J.L.)

John Laskin J.A.

I agree. K. Feldman J.A.

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

[1]
The application judge did not resolve these competing claims as he held he had
    insufficient evidence to do so.


COURT OF APPEAL FOR ONTARIO

CITATION: Nissen v. Durham Regional Police Services Board,
    2017 ONCA 10 DATE: 20170109

DOCKET: C60205

Sharpe, Pepall and van Rensburg JJ.A.

BETWEEN

Chad Nissen, Margaret Stack, both personally and
    as litigation guardians of Christian Nissen and Morgan Nissen

Plaintiffs (Respondents)

and

Durham Regional Police Services Board, James
    Liepsig, Mark Price, Al Sirizzotti, Sean Fitzgerald
, John Doe or Jane Doe,
    Brenda Cowie, Isabel Pargana, Her Majesty the Queen in Right of Ontario

Defendants
(Appellants)

Roger Horst, Rafal Szymanski and Lisa Bruni, for the
    appellants

Margaret A. Hoy, for the respondents

Heard: November 29, 2016

On appeal from the judgment of Justice Douglas Gray of
    the Superior Court of Justice, dated February 26, 2015, with reasons reported
    at 2015 ONSC 1268.

Sharpe J.A.:

[1]

The central issue on this appeal is: what are the required elements for
    a claim for damages against the police for breach of a promise of
    confidentiality made to a citizen reporting criminal wrongdoing?

[2]

Margaret Stack, respondent in this appeal, was awarded damages against
    the appellants, the Durham Regional Police Services Board and certain named
    officers (the Police), for what was pleaded as breach of informer privilege.
    Ms. Stack went to the Police to tell them that she had learned that P.E., the
    teenaged son of her neighbours, had broken into another neighbours house and
    stolen some guns. Ms. Stack asserted that she had asked the Police and been
    promised by them that her identity and the fact that she had reported the theft
    of the guns would be treated as confidential. Unbeknownst to Ms. Stack, the
    Police videotaped her interview. P.E. and his brother S.E. were charged. A
    recording of Ms. Stacks interview was included in the disclosure provided to
    P.E. and S.E. in the criminal proceedings. Ms. Stack was subsequently subjected
    to threatening and harassing conduct by the parents of P.E. and S.E. Ms. Stack
    and her family were so distressed by this conduct that they sold their home and
    moved to another community. As a result of these events, Ms. Stack has felt
    hopeless, depressed, anxious and fearful. She has been diagnosed as having
    post-traumatic stress disorder.

[3]

The Police denied that Ms. Stack was promised confidentiality or that
    she enjoyed the status of a confidential informant.

[4]

Following a 10 day trial, the trial judge gave detailed reasons in which
    he found that the Police had promised Ms. Stack confidentiality and that Ms.
    Stack, her husband and her children were entitled to substantial damages.

[5]

Before this court, the Police argue that the trial judge erred in
    finding that they promised Ms. Stack confidentiality, that the elements
    necessary for a claim of damages for breach of informer privilege were not made
    out, and that the damages awarded were excessive.

[6]

For the following reasons, I would dismiss the appeal.

FACTS

[7]

Ms. Stack lived with her husband Chad Nissen and their two children on a
    quiet street in Whitby. They had invested considerable time and money on
    improving their home, and they enjoyed good relationships with their
    neighbours.

[8]

Ms. Stack sometimes asked P.E., the teenaged son of one of her
    neighbours, to babysit her children. One day when Ms. Stack asked the child of
    another neighbour to babysit, P.E. became angry. Ms. Stack was disturbed by
    what she regarded as his irrational and frightening behaviour. Ms. Stack
    subsequently learned from another neighbour that P.E. had broken into the neighbours
    home, stolen guns, and with his brother S.E. taken the guns to school and
    threatened students.

[9]

Ms. Stack decided that she should inform the police but she did not wish
    to have her name associated with any investigation. A friend offered to call a
    police officer he knew without identifying Ms. Stack. She subsequently received
    a call from Officer Liepsig of the Durham Regional Police, who wanted to talk
    to her immediately. She was upset that her friend had disclosed her name, but
    the friend explained that Officer Liepsig had insisted. She called Officer
    Liepsig who offered to come to her home. She told him no, that she felt unsafe
    as the people they were going to talk about lived across the street. In her
    evidence, Ms. Stack insisted that she emphasized to Officer Liepsig that she
    did not wish to be identified, that she was frightened of P.E. and S.E., and
    that the Officer promised her over the telephone that her identity would not be
    disclosed. She said that Officer Liepsig told her that if she came to the
    police station to discuss the matter he would keep her identity secret, and
    that she would remain totally anonymous.

[10]

Ms. Stack testified that she was given further assurances of
    confidentiality when she attended at the station. Officer Liepsig asked her if
    he could take some notes but did not disclose to her that the interview was
    being recorded on videotape. At the end of the interview, Ms. Stack asked
    Officer Liepsig not to let anyone know about their conversation. The videotape
    confirms that he replied: [T]his is between you and I. Of course, I have to
    keep records of this for ourselves...That stuff does not get disclosed. It is
    not made available to the public. You dont have to worry about that. Ms.
    Stack testified that before leaving the station she again asked to be reassured
    that no one would know she had made her report, and that again Officer Liepsig
    told her that it was impossible, even if a request was made under freedom of
    information legislation. Ms. Stack acknowledged in cross-examination that
    Officer Liepsig never used the term confidential informer.

[11]

Officer Liepsig testified that he did not recall Ms. Stack expressing
    any concerns about confidentiality or anonymity, and denied that he gave her
    any assurances. He stated that if there had been any assurances of
    confidentiality, he would not have met Ms. Stack at the police station and he
    would not have recorded her statement. Officer Liepsig explained the Durham
    Regional Police Criminal Informant and Agent Management Directive (the
    Directive), and testified that he had not followed the steps required to make
    Ms. Stack a confidential informant within the meaning of the Directive. Officer
    Liepsig testified that he considered Ms. Stack to be a regular witness, not a
    confidential informer.

[12]

Within a few days of Ms. Stacks police interview, P.E. and S.E. were
    arrested. Soon after Officer Liepsig was reassigned, and the task of preparing
    the Crown brief was assigned to other officers who were unaware that Ms. Stack
    had been given any assurance of confidentiality. Ms. Stack later learned that
    her identity and her videotaped interview were included in the Crowns
    disclosure to P.E. and S.E.s defense counsel. This disclosure provoked an
    angry reaction from P.E. and S.E.s parents, Mr. and Mrs. E. Ms. Stack
    testified that Mr. E. drove his truck at her causing her to leap from the
    sidewalk onto the grass behind a tree to avoid being hit by the truck. He then
    sped away, spinning his wheels so that gravel from the road was propelled
    towards her.

[13]

Ms. Stack immediately called Officer Liepsig to report the incident and
    express her concern that a mistake had been made and her identity disclosed,
    but he did not return her call. Mr. Nissen spoke to Mr. E., who expressed his anger
    and intention to pay Ms. Stack back for having gone to the police. Mr. Nissen
    also complained to the Police about Mr. E.s conduct. A police officer, who had
    not himself spoken with Mr. Nissen, responded by calling Mr. E. to caution him
    not to contact or tamper with witnesses, and to not say anything that might be
    interpreted as a theat. The Police did not report back to Mr. Nissen.

[14]

Ms. Stack and Mr. Nissen testified that following the truck incident,
    Mr. and Mrs. E. subjected them to on-going harassment. They would come to their
    living room window, driveway or to the front step of their house and glare over
    at the Stack-Nissen home in a threatening manner. There were also other
    incidents. P.E. arranged to have a young girl run through Ms. Stacks back yard
    screaming and waving her arms. On other occasions, Mr. E. clucked and behaved
    like a chicken towards Mr. Nissen and Ms. Stack. The harassment became
    unbearable and ultimately, Ms. Stack and Mr. Nissen decided to sell their home
    and move.

[15]

Ms. Stack complained of feeling hopeless and depressed following these
    events, and she has been diagnosed with post-traumatic stress disorder.
    Evidence of the significant change in her behaviour and enjoyment of life was
    provided by her family, friends and Dr. Silver, a psychiatrist who had examined
    her for the purposes of this case.

TRIAL JUDGMENT

[16]

The trial judge found as a fact that Officer Liepsig had promised Ms.
    Stack anonymity and confidentiality. He noted that Officer Liepsig denied
    giving any such assurances, but observed that Officer Liepsigs notes about his
    interaction with Ms. Stack were sparse. The trial judge stated, at para. 289:

I think it is highly unlikely that the discussion about
    anonymity at the end of the interview was the first time the subject was
    raised. In context, I think it is unlikely that the issue would have been
    raised for the first time in such a casual way at the end of the interview. It
    is more likely, in my view, that that discussion was the culmination of an
    earlier discussion about anonymity. Otherwise, there was no context and the
    discussion, coming out of the blue, would be unusual. If anonymity was promised
    before Ms. Stack came to the police station, it is difficult to think of any
    reason for doing it except as a means to persuade her to come to the station
    and tell what she knew.

[17]

The trial judge noted that Ms. Stacks concern for confidentiality was
    confirmed by her friend who had made the initial call to Officer Liepsig, and
    by her complaint to Officer Liepsig immediately upon learning that her identity
    had been disclosed. He noted that Officer Liepsig did not deny receiving that
    message, nor having failed to respond. Mr. Nissen also corroborated Ms. Stacks
    concern about confidentiality. The Police did not refute his evidence that he
    went to the station to complain about the disclosure, and that an officer had apologized
    to him and said that the disclosure was unacceptable.

[18]

The trial judge noted that the fact that the Police did not follow their
    policy regarding confidential informants suggested that Officer Liepsig had not
    intended to grant Ms. Stack informer status. However, Officer Liepsig had
    failed to make that clear to Ms. Stack. The trial judge concluded, at para.
    298:

On a balance of probabilities, I hold that Officer Liepsig
    promised Ms. Stack that her identity would be preserved, and not disclosed, if
    she came to the police station and provided information about suspected
    criminal activity. He did not qualify that promise in any way. Thus, both
    expressly and by implication Ms. Stack became entitled to informer privilege,
    that is, she was entitled to have her anonymity preserved with respect to her
    involvement in conveying information to the police.

[19]

The trial judge found that the police owed a common law duty not to
    disclose the identity of an informer, and that  even if the duty was not
    absolute, reasonable care had not been taken in the circumstances of this case.

[20]

He reviewed the law relating to informer privilege is detail and
    concluded, at para. 280:

[I]nformer privilege arises if information is provided to the
    police in exchange for a promise of confidentiality.  Mere expectation of
    confidentiality is not enough. There must be a promise, either express or implied,
    that confidentiality will be maintained. Where the privilege properly arises,
    anonymity must be observed absolutely, save only where innocence is at stake.
    The purpose of the privilege is two-fold: to encourage citizens to report
    suspected criminal activity; and to protect informers from retribution.
    Formality is not required. All that is required is a promise of confidentiality
    in exchange for information. While policies and procedures exist with respect
    to informer privilege, they do not themselves create it.

[21]

The trial judge rejected the claim for damages arising from the sale of
    the Whitby home and purchase of the new home, as no expert evidence was called
    as to loss of value. He also rejected a claim for
Charter
damages, and
    the claims Ms. Stack and Mr. Nissen had asserted for lost income or lost
    opportunity.

[22]

The trial judge did, however, award Ms. Stack general damages for
    emotional and psychological injury. That claim was supported by her own
    evidence, that of her family and friends, and that of Dr. Silver, who had
    diagnosed her with post-traumatic stress disorder, an opinion that was not contradicted
    by the expert retained by the Police. The trial judge found that the
    psychological injury Ms. Stack had suffered rose above the level of ordinary
    upset or anxiety, and was therefore compensable at law. The trial judge found
    that the failure of the Police to act after they learned of Mr. E.s harassing
    behaviour, other than the one brief telephone conversation, was an aggravating
    factor. He rejected the claim for punitive damages and fixed the general
    damages in the amount of $345,000. The trial judge also awarded
Family Law
    Act,
R.S.O. 1990, c.
F.3,
    damages for loss of guidance, care and companionship, in the amount of $65,000
    to Mr. Nissen, and $25,000 to each child.

ISSUES

[23]

The appellants raise the following issues on appeal:

1.

Did the trial judge err in finding that Ms. Stack was promised
    confidentiality?

2.

Did the trial judge err in finding that Ms. Stack established the
    necessary elements for a claim for damages?

3.

Were the damages awarded excessive?

ANALYSIS

1. Did the trial judge err
    in finding that the Ms. Stack was promised confidentiality?

[24]

The Police argue that the trial judge made a palpable and overriding
    error in finding that Ms. Stack was promised confidentiality. They argue that
    it would make no sense for Officer Liepsig to ask Ms. Stack to come to the
    police station for an interview if she were being treated as a confidential
    informant.

[25]

We did not call upon counsel for the respondent to address this
    submission in oral argument, as it is without merit. The trial judge thoroughly
    reviewed the evidence of Ms. Stack, Officer Liepsig and other witnesses and
    clearly explained the basis for his finding. He considered and rejected the
    very point raised by the Police on this appeal, namely, that Officer Liepsig
    would not have conducted the interview at the police station if he considered
    Ms. Stack to be a confidential informant. The trial judges finding that
    Officer Liepsig did promise Ms. Stack confidentiality and anonymity was based
    upon his assessment of her credibility and reliability as a witness. His
    finding was supported by the conversation between Ms. Stack and Officer Liepsig
    at the conclusion of the videotaped statement and by other evidence, including
    that given by other police officers. It attracts deference in this court, and I
    see no basis upon which we could interfere.

2. Did the trial judge err
    in finding that Ms. Stack established the necessary elements for a claim for damages?

[26]

We were not referred to any case in which damages for breach of informer
    privilege had been awarded. However, in
Bisaillon v. Keable
, [1983] 2
    S.C.R. 60, Beetz J. stated, at p. 96, that although there was no precedent on
    the point, he would have no difficulty in finding that an action for damages for
    such a breach would lie. On this appeal, the Police do not dispute that
    proposition.

[27]

However, the Police do argue that the trial judge erred by finding that
    a plaintiff only need prove that the police made a promise of confidentiality
    in exchange for information in order to establish the privilege. They submit
    that the elements for a civil claim for damages for breach of a promise of
    confidentiality by the police will not lie without proof of two other elements,
    namely, (1) that the information provided must be difficult or impossible to
    obtain; and (2) that the informer must be likely to suffer harm or danger if
    his or her identity is disclosed. They also submit that the claim cannot be
    sustained as the Directive relating to confidential informers was not followed.

[28]

In support of the first proposition, the Police rely on the following
    passage from the judgment of the Supreme Court of Canada in
R. v. Basi
,
    2009 SCC 52, [2009] 3 S.C.R. 389, at para. 36:

The privilege arises where a police officer, in the course of
    an investigation, guarantees protection and confidentiality to a prospective
    informer in exchange for useful information that would otherwise be difficult
    or impossible to obtain. In appropriate circumstances, a bargain of this sort
    has long been accepted as an indispensable tool in the detection, prevention
    and prosecution of crime.

[29]

In support of the second proposition, they rely on
R. v. Scott
,
    [1990] 3 S.C.R. 979, at para. 31, where Cory J. stated: Whatever their
    motives, the position of informers is always precarious and their role is
    fraught with danger.

[30]

The Police submit that as the information Ms. Stack provided was readily
    available to the police from other sources, that as they had no reason to
    suspect that she would be in any danger should her identity be revealed and
    that as they did not follow policy and procedures for creating confidential
    informer privilege, Ms. Stack has failed to make out the necessary elements for
    her claim.

[31]

I disagree with the Police submission that the trial judge erred with
    respect to the necessary elements for this claim.

[32]

In my view, this case can and should be decided as a civil claim for
    damages for breach of confidence. The fundamental point is that, on the
    findings of the trial judge, Officer Liepsig made a promise of confidentiality
    and anonymity to Ms. Stack in exchange for the information she provided. The trial
    judge found that the promise was breached and Ms. Stack suffered damages as a
    result. Those findings bring this case squarely within the long-recognized
    cause of action for breach of confidence, and Ms. Stack is accordingly entitled
    to recover on that basis.

[33]

While other considerations may come into play in a criminal case where
    the prosecution is resisting disclosure of the identity of a confidential
    informer to an accused, this is a civil case between the police and an
    individual who was promised confidentiality. That promise gave rise to a common
    law and equitable right entitling Ms. Stack to have her identity kept
    confidential. Her right was not contingent upon other ways the Police may have
    had to get the information she provided, or on what the Police thought about
    the danger she faced.

[34]

Difficulty in obtaining the information and fear of harm to the witness may
    well be the rationales underlying the doctrine of informer privilege in
    criminal law, but I am not persuaded that they are necessary elements to
    sustain the privilege, even in a criminal case. There is no suggestion to that
    effect in the lengthy discussion of the doctrine in Hubbard, Magotiaux and
    Duncan,
The Law of Privilege in Canada
, loose-leaf
(Aurora: Canada Law Book, 2006, looseleaf).
    For the purposes of this appeal, I need go no further than saying that there is
    no reason to qualify the right to sue for breach of confidence by adding additional
    elements necessary to establish a civil claim for damages. To do so would put
    the citizen interacting with the police in an impossible situation. Ms. Stack
    had no way of determining whether the Police could obtain from another source the
    information she was offering. Nor did she have any way of gauging what the
    Police considered to be the risk of harm she faced should her identity be
    disclosed. She explained her fear of harm to Officer Liepsig, and that fear ultimately
    proved to be well-founded. She was entitled to rely on Officer Liepsigs
    promise of confidentiality in exchange for her cooperation in giving him the
    information she had.

[35]

It is, of course, for the police to decide whether or not to make a
    promise of confidentiality. In making that decision, they will no doubt make an
    assessment of the value of the information the witness may have to offer,
    whether they can get the information through other means, and the danger the
    witness may face if his or her identity is revealed. If the police tell the
    witness that they will not reveal his or her identity or involvement in order
    to get information, they should keep their promise, or face the ordinary
    consequences of violating the assurance they have given. If the police decide
    that the witness does not deserve or warrant the requested assurance of confidentiality
    and anonymity, they should clearly say so and refuse to give the witness the
    requested assurance. That would allow the witness to decide whether to
    nonetheless give the information and accept the risk of disclosure. Simply put,
    a citizen in Ms. Stacks situation should be able to rely upon what the police
    tell her.

[36]

Nor do I accept the submission that because the Police did not follow
    their own Directive for confidential informers, Ms. Stacks civil claim for
    damages is defeated. While I accept that Officer Liepsig may have thought that
    Ms. Stack was not a confidential informer within the meaning of the Directive,
    I fail to see how that can affect her right to claim for breach of confidence.
    Her claim rests upon the promise of confidentiality that Officer Liepsig made,
    and the exchange of information that followed as a result. She had no way of
    determining whether she fit within the terms of the Directive, and it would be
    obviously unfair to deny her claim on the basis of a Directive that had never
    been explained or brought to her attention.

3. Were the damages awarded
    excessive?

[37]

The Police submit that the damages awarded by the trial judge were
    excessive. They submit that the trial judge made three errors: (1) he assessed
    Ms. Stacks damages with reference to awards made in cases that are not
    analogous; (2) he failed to consider the fact that Ms. Stack had already
    suffered psychological harm before her identity was disclosed; and (3) he erred
    in awarding aggravated damages.

Analogous cases

[38]

The trial judge observed, at para. 366, that it was difficult to fix a
    reasonable amount for the damages Ms. Stack and her family had suffered. He
    found that the effect on Ms. Stack had been severe, that her life had been
    irretrievably altered, and he was satisfied by the evidence of Dr. Silver
    that it is unlikely that she will ever be the same as she was before these
    incidents.

[39]

In argument, the trial judge raised the issue of whether the cap on
    personal injury damages applied to damages for psychological injury. Ms.
    Stacks counsel cited two Supreme Court of Canada decisions in which damages
    for psychological injury were claimed:
Cinar Corporation v. Robinson
,
    2013 SCC 73, [2013] 3 S.C.R. 1168, and
Young v. Bella
, 2006 SCC 3,
    [2006] 1 S.C.R. 108. In both those cases, the Supreme Court held that the cap
    did not apply and awarded damages for psychological injury of $400,000 in
Cinar
and $430,000 in
Young
. The trial judge stated that the damages in this
    case were not as severe as the damages in these two decisions, that something
    less would be appropriate, and awarded $345,000. As that amount was below the
    cap, the issue of whether the cap applies did not have to be decided.

[40]

The Police submit that that the trial judge placed too much reliance on
Cinar
and
Young
,

as
    the harm suffered by the plaintiffs in both
Cinar
and
Young
involved
    more than just psychological injury.
Cinar
involved a violation of
    copyright, and
Young
was a defamation case involving injury to
    reputation.

[41]

I am not persuaded by this submission.

[42]

First, the trial judge explicitly recognized that the harm suffered in
    this case was less than that suffered in
Cinar
and
Young
.

[43]

Second, in
Cinar
, the damage award consisted of several
    components, including a compensatory award of over $600,000 for pecuniary loss
    and over $1.7 million in disgorgement of profits, both awards for the copyright
    infringement, and $500,000 in punitive damages. An additional $400,000 was
    awarded for psychological injury. The award for psychological injury was a
    discrete award in addition to the damages awarded for the breach of copyright.
    While the Supreme Court agreed that the damages for psychological injury were
    analogous to those claimed by the victim of defamation, it is clear that the
    award was not for loss of reputation. See para. 108: The product of Robinsons
    artistic exertions was taken from him and the integrity of his personal
    creative process was violated, causing deep psychological suffering. I do not
    see why an award for psychological harm resulting from a copyright infringement
    could not shed some light on an award for a similar harm arising under a
    different cause of action.

[44]

Third, while
Young
was pleaded as both a defamation and
    negligence action, the claim for defamation was struck and the action proceeded
    as one for negligence. The psychological injury complained of was not unlike
    that suffered by Ms. Stack. I do not agree that the fact that a similar harm was
    caused by a different wrongful act makes
Young
so different in quality
    that the trial judge erred in using it as a reference point when assessing
    damages in this case.

[45]

The trial judge was faced with what he properly recognized to be a
    difficult task. On the evidence, he found that Ms. Stack had suffered a severe psychological
    injury that had radically affected her outlook and enjoyment of life. Her
    friends and her family testified that she was a different person since the
    injury, and she presented unchallenged expert evidence that she had suffered
    from post-traumatic stress disorder that was difficult to treat and likely to
    be permanent. While I view the damages awarded by the trial judge to be very
    generous, I am not persuaded that his reasons reveal any error of law or
    principle that would justify appellate intervention.

Pre-existing condition

[46]

Dr. Silver testified that Ms. Stacks post-traumatic stress disorder was
    the product of a series of events, including being upset over P.E.s anger
    concerning the babysitting assignment, the breakdown of her relationship with
    P.E., learning that P.E. and his brother had stolen guns and taken them to
    school to threaten fellow students, and finally the disclosure of her identity
    as the person who had gone to the police and the resulting threatening and
    harassing behaviour of Mr. and Mrs. E. The Police submit that the trial judge
    failed to consider the evidence that Ms. Stacks post-traumatic stress disorder
    was the product of a series of events. They submit that this shows that Ms.
    Stack is a crumbling skull plaintiff, and that the general and
Family Law
    Act
damages should be reduced by 10 to 20% on account of the fact that she
    had already experienced some anxiety and distress before her identity was
    revealed, and before Mr. and Mrs. E. started their campaign of threats and
    harassment.

[47]

I am not persuaded by this submission.

[48]

In her closing submissions at trial, counsel for the Police made brief
    reference to the fact that Ms. Stack was upset by earlier events, but did not
    advance the submission made before us that Ms. Stack should be treated as a
    crumbling skull plaintiff.

[49]

In any event, at para. 255 of his reasons the trial judge asked himself
    the following question:

In a case such as this, where psychological injuries are
    alleged, the question is, as a result of pre-existing conditions, was there a
    material risk that the plaintiff would have developed her current problems
    notwithstanding the defendants conduct?

[50]

At para. 341, he made the following finding in answer to that question:

Had Ms. Stacks identity not been disclosed, she and her
    family, in all likelihood, would still be living in their dream home on their
    quiet street in Whitby. Retribution at the hands of the [E.s] would not have
    occurred. Ms. Stack would not have suffered post-traumatic stress disorder, the
    symptoms of which still plague her today. She and her family would not have
    sold their home and moved to a strange community. Her family would not have
    suffered along with her.

[51]

In my view, it was open to the trial judge to conclude that the
    psychological harm Ms. Stack suffered could fairly be entirely attributed to
    the disclosure of her identity, which in turn led to the retributive conduct of
    Mr. and Mrs. E. The disclosure and the threats and harassment that followed
    were the key events that pushed Ms. Stack and her family to the point where
    they felt they had to move from the neighbourhood, and that caused her severe
    mental distress. The trial judge was entitled to award damages accordingly

Aggravated damages

[52]

The Police submit that the trial judge erred in awarding aggravated
    damages without making a finding of reprehensible or outrageous conduct.

[53]

The trial judge rejected the claim for punitive damages. He found, at
    para. 374:

[T]his is not one of those exceptional cases that requires an
    award of punitive damages for malicious, oppressive and high-handed misconduct
    that offends the courts sense of decency The conduct of the defendants does
    not remotely approach that standard. [citation omitted]

[54]

He did, however, note that a damages award must take into account
    aggravating features, which he described, at para. 367:

First, as noted, the police did nothing whatsoever to preserve
    Ms. Stacks anonymity. Second, once they became aware of the harassing
    behaviour by [Mr. E] they did almost nothing about it. Apart from one brief
    conversation with [Mr. E.], in which it is doubtful that the importance of the
    problem was impressed on [Mr. E.], the police did nothing. There was no
    evidence of any follow-up with [Mr. E.]. Indeed, somewhat inexplicably, no one
    even followed up with Mr. Nissen or Ms. Stack to advise them that [Mr. E.] had
    been spoken to.

[55]

I am not persuaded by the Police argument that this passage reveals an
    error of law. Aggravated damages aim not at punishing wrongful behaviour, but
    at compensating the injured plaintiff for the full extent of the plaintiffs
    loss. Very often, aggravation of the plaintiffs loss will be caused by
    outrageous or reprehensible conduct, as it is that quality of the defendants
    conduct that causes additional distress or humiliation that calls for
    compensation not captured by a purely conventional award. I am not persuaded,
    however, that a trial judge can only take aggravating features into account
    where there has been outrageous or reprehensible conduct. I agree with the
    observation made by this court in
Weingerl v. Seo
(2005), 256 D.L.R.
    (4th) 1, at para. 70 that post-incident conduct which aggravates the harm to
    the victim may also be taken into account.

[56]

I agree with the Police that the first factor mentioned by the trial
    judge, failure to protect Ms. Stacks anonymity, was not aggravating. However,
    I agree with the respondents that it was open to the trial judge to find that
    the failure of the Police to take any meaningful steps to protect Ms. Stack and
    her family from the harm they were suffering as a result of the wrongful
    disclosure of her identity did aggravate the damages she suffered. The Police
    had promised Ms. Stack confidentiality in order to gain her cooperation. Their
    duty to her did not cease once they broke that promise. The promise they made
    as police officers included a duty to protect Ms. Stack from the consequences
    of wrongful disclosure.

[57]

The Police failed to carry out that duty. When Mr. Nissen complained to
    the Police that Mr. E. had driven his truck at Ms. Stack and that Mr. and Mrs.
    E. were leering at them in a threatening manner, the response of the Police was
    to have an officer who had not himself spoken with Ms. Stack or Mr. Nissen call
    Mr. E. to tell him that he should not communicate or interfere with witnesses.
    The officer charged with calling Mr. E. was not told about the truck incident
    or the threatening behaviour, and did not caution Mr. E. in that regard. Following
    this brief conversation, the Police did not call Ms. Stack or her husband to
    reassure them that they had spoken to Mr. E. In my view, the trial judge did
    not err by taking this conduct into account when determining the damages to
    which Ms. Stack and her family were entitled.

DISPOSITION

[58]

For these reasons I would dismiss the appeal with costs to the
    respondents fixed in the amount agreed to by the parties, namely, $40,000,
    inclusive of disbursements and taxes.

Released: January 9, 2017

Robert J. Sharpe
    J.A.

I agree S.E. Pepall
    J.A.

I agree K. van
    Rensburg J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Ontario v. Chartis Insurance Company of Canada,
    2017 ONCA 59

DATE: 20170124

DOCKET: C62200

Sharpe, Pepall and Hourigan JJ.A.

BETWEEN

Her
    Majesty the Queen in Right of

the Province of Ontario

Plaintiff (Respondent)

and

Chartis Insurance Company of Canada,

American Home Assurance Company
, Royal & Sun

Alliance
    Insurance Company of Canada, The Royal

Insurance
    Company of Canada, Royal Insurance Company Limited,

Aviva
    Canada Inc., Aviva Insurance Company of Canada,

General
    Accident Assurance Company of Canada,

Travelers
    Insurance Company of Canada, and

St. Paul Fire and Marine Insurance
    Company

Defendants (
Appellants
)

Gavin MacKenzie and Brooke MacKenzie, for the appellants

William Manuel and Jonathan Sydor, for the respondent

Heard: December 2, 2016

On appeal from the order of the Divisional Court (Justices
    Edward F. Then, Anne M. Molloy and Thomas R. Lederer), dated February 11, 2016,
    with reasons reported at 2016 ONSC 43, 347 O.A.C. 43, allowing an appeal from
    Justice Alfred J. OMarra of the Superior Court of Justice, dated July 16, 2014,
    with reasons reported at 2014 ONSC 4221, 38 C.C.L.I. (5th) 34.

Pepall J.A.:

A.

Introduction

[1]

This appeal concerns the disqualification of counsel due to an alleged
    conflict of interest. At issue is the possibility of inadvertent disclosure of
    confidential information arising from the close working relationship between
    two lawyers after one transferred law firms to work with the other. The
    integrity of counsel involved is unchallenged and there is no suggestion of any
    actual impropriety.

[2]

The respondent, Her Majesty the Queen in Right of the Province of
    Ontario (Ontario), sued the appellants, Chartis Insurance Company and
    American Home Assurance Company (collectively, AIG), as a result of an
    insurance coverage dispute.

[3]

Ontario retained the law firm of Theall Group LLP (TG) as its counsel
    in the coverage dispute. Michael Foulds is a lawyer who worked for TG and was
    intimately involved in working with senior counsel to Ontario on the dispute. Foulds
    then left that firm and joined the law firm of Lloyd Burns McInnis LLP (LBM)
    as a partner. LBM represents AIG in the coverage dispute. At his new firm, Foulds
    does not work on the coverage action but he spends 50 to 60 percent of his time
    working with Douglas McInnis, who is counsel to AIG on the dispute. Foulds also
    works on other files for AIG.

[4]

AIG moved for a declaration that the ethical screen put in place by Foulds
    new firm, LBM, was sufficient to prevent disclosure of Ontarios confidential
    information and that it was in the interests of justice that the firm continue
    to act in the action.

[5]

In turn, Ontario brought a cross-motion seeking an order that Foulds
    new firm, LBM, be disqualified from continuing to act for AIG due to an inherent
    conflict of interest caused by Foulds, who was formerly Ontarios counsel, joining
    his new firm to work with senior counsel to AIG.

[6]

The application judge agreed with AIGs position, granted its motion,
    and dismissed Ontarios cross-motion.

[7]

The Divisional Court overturned that decision.

[8]

For the reasons that follow, I would dismiss the appeal from the Divisional
    Courts order.

B.

Background Facts

[9]

Ontario was a defendant in four class actions. Ontario carried
    insurance, however a dispute arose over its insurance coverage with AIG and
    three other insurers. Ontario retained Laurence Theall of TG to act on its behalf.
    In 2012, Theall commenced an action against the insurers to compel coverage.

[10]

Foulds was an associate at TG and began working with Theall on the
    insurance dispute in November 2010. Foulds involvement included work on the
    actions and settlement negotiations with the insurers. These negotiations were
    successful with respect to all of the insurers except AIG. The settlements were
    finalized in August 2013. The action against AIG continues.

[11]

As a result of his involvement, Foulds is in possession of privileged
    and confidential information relating to the class actions, the coverage
    action, the negotiations, and the settlements. During the time he was with TG,
    Foulds docketed more than 160 hours on the coverage proceedings.

[12]

McInnis of LBM is opposing counsel and acts for AIG in the coverage dispute.
    He was retained in June 2009 and has been actively and directly involved in
    both defending AIG in the action brought by Ontario and in the unsuccessful
    settlement negotiations. McInnis has docketed more than 400 hours on matters
    relating to the coverage action.

[13]

McInnis has worked for AIG as coverage advisor and counsel since 1986. Since
    the early 1990s, he has represented AIG on more than 50 separate coverage files
    relating to the Ontario Insurance Program.

[14]

In the summer of 2013, McInnis approached Foulds to join LBM, a 14
    member Toronto litigation boutique, as a partner. Foulds and McInnis had
    previously worked together on AIG matters between 2004 and 2010, when they both
    worked at another law firm. Once he joined LBM, Foulds was to work with McInnis
    on AIG and other client matters, excluding the coverage action and any other Ontario-AIG
    matters.

[15]

In November 2013, Foulds told Theall that he intended to move his
    practice to LBM.

[16]

In early December 2013, McInnis contacted Theall by telephone to discuss
    the establishment of an ethical screen. On January 2, 2013, McInnis sent an
    e-mail outlining the safeguards to be put in place upon Foulds arrival at LBM.
    These would include:

(a)   Foulds
    would have no involvement in LBMs representation of AIG in the coverage action;

(b)   Foulds
    would not discuss any Ontario-AIG matters with anyone at LBM or AIG;

(c)   no one
    from LBM would discuss any Ontario-AIG matters with Foulds;

(d)   immediately
    upon arriving at LBM, Foulds would sign an undertaking confirming that he
    understood, and would adhere to, all elements of the ethical screen;

(e)   all LBM
    lawyers and staff involved in Ontario-AIG matters would sign a similar
    undertaking;

(f)    LBM
    would inform all personnel in writing of the ethical screen, of the requirement
    to adhere to it, and of the possible sanctions for failing to abide by the
    terms of the ethical screen, which sanctions could include dismissal;

(g)   Foulds
    office would be located several offices away from those LBM personnel working
    on Ontario-AIG matters; and

(h)   the
    ethical screen would be monitored and enforced by a senior partner with no
    personal involvement in Ontario-AIG matters.

[17]

Theall responded by requesting an opportunity to review the undertaking
    proposed in draft form. McInnis sent this to Theall in early January 2014.  McInnis
    asked that Ontario consent to LBM continuing to act for AIG on the coverage
    action.

[18]

Subsequently, as an extra precaution, LBM decided that Foulds would not
    work with McInnis assistant.

[19]

Foulds commenced work at LBM on January 6, 2014. Foulds estimates that
    one-half of his time is spent doing work for AIG and that 50 to 60 percent of
    his time is spent working with McInnis.

[20]

On February 7, 2014, Theall advised McInnis of Ontarios objection to
    LBM continuing to act on the coverage dispute because of the serious conflict
    of interest that arose from Foulds move to LBM. Theall wrote that Foulds had
    docketed over 160 hours on the case between Ontario and AIG and was privy to
    not only privileged information, but the entire litigation strategy. He went
    on to write:

Mr. Foulds assisted me in the very matter that is at issue
    between Ontario and Chartis, including both the allocation of defence costs and
    indemnity payments for the Huronia litigation. He was substantially involved in
    preparing an opinion for Ontario regarding allocation of defence costs,
    drafting the statement of claim, discussing settlement possibilities,
    attendance at client meetings, and meetings with the opposing insurers. Mr.
    Foulds is therefore in possession of very relevant confidential information.

[21]

Since he joined LBM, Foulds has not been involved in the class actions,
    the coverage action, the Ontario Insurance Program, or any Ontario-AIG matters.
    He does work on AIG files not involving Ontario.

C.

The Decisions Below

(1)

The Application Judges Decision

[22]

The application judge identified the test articulated by Sopinka J. in
MacDonald
    Estate v. Martin
,
[1990] 3
    S.C.R. 1235, considered the Law Society of Upper Canadas (LSUC) guidelines
    for protecting a clients confidential information, and reviewed cases that had
    considered comparable ethical screens. He then turned to the application of
    these principles to the case before him.

[23]

He noted that there was no requirement that the tainted lawyer (an
    unfortunate but apt descriptor)
[1]
have zero contact or involvement with lawyers working on the clients file. To
    hold otherwise would be particularly challenging for small firms.

[24]

He concluded that LBM had implemented all of the suggested measures
    under the LSUC guidelines in a timely manner and had appointed an independent
    senior partner to supervise and monitor the firms adherence to the
    requirements of the ethical screen.

[25]

He characterized the issue as being whether reasonable precautions have
    been taken to minimize risk (para. 41) and asked rhetorically what more could
    be done to protect the confidentiality of Ontarios information. At paras. 42
    to 44, he wrote:

Even if a doubt remains that there is the possibility of
    inadvertent disclosure, I consider in the balance, the impact of a disqualification
    order on the opposing parties right to counsel of choice. Mr. McInnis has not
    just been retained. He has been involved significantly as coverage counsel in
    AIG matters for many years. He has been their outside counsel on such matters
    since 1986. Since the early 1990s, AIG has retained Mr. McInnis exclusively for
    Ontario-AIG matters. He has been dealing with matters giving rise to the
    present coverage action for more than five years. He has docketed over 400
    hours in the matter, which has been described as a complex action involving the
    interpretation of his clients insurance policy and class actions involving a
    class period from the 1940s to 2009.

The parties are large sophisticated institutional interests. Although
    there are a number of experienced lawyers competent to undertake litigation of
    such complexity as in this case, as acknowledged by Mr. McInnis on examination,
    none have the depth of knowledge, experience and understanding of AIG and the
    Ontario Insurance Program as Mr. McInnis. AIG should not be denied its counsel
    of choice.

LBM has been pro-active in minimizing the risk of disclosure of
    confidential information. In considering the timely and comprehensive
    compliance by LBM with the institutional measures set out in the guidelines, in
    addition to appointment of a supervising senior partner, and isolating Mr.
    Foulds from any Ontario-AIG matters, I find that a reasonably informed person
    would be satisfied that the use of confidential information had not occurred or
    would likely occur, and it is in the interests of justice to allow Mr. McInnis
    to remain as AIGs counsel of choice.

[26]

The application judge therefore granted LBMs motion and dismissed
    Ontarios cross-motion.

[27]

On November 24, 2014, Nordheimer J. granted leave to appeal to the
    Divisional Court. In applying the test for granting leave to appeal, he was
    satisfied that there was good reason to doubt the correctness of the
    application judges decision. He noted that the application judge had appeared
    to have reversed the onus and engaged in a balancing act, rather than
    considering whether the presumption of disqualification had been rebutted.

(2)

Divisional Court Decision

[28]

The Divisional Court allowed the appeal and disqualified LBM from
    continuing to act for AIG in the coverage action. Lederer J., writing for a
    unanimous court, noted that an order seeking the removal of counsel is
    discretionary and therefore attracts deference. Nonetheless, he concluded that
    the application judge had erred in his application of the principles
    articulated in
MacDonald Estate
. At paras. 25 and 41, he wrote:

The implementation of the guidelines and the presence of the
    senior partner could be relied on to further a consideration of whether the
    inference of the delivery of confidential information prejudicial to Ontario
    had been rebutted. This is not how the motion judge employed these factors in
    the analysis he undertook or the determination that he made. Rather, he took
    the approach that if the firm had done everything possible to avoid the
    delivery of confidential information, the test had been met. He failed to go on
    and consider whether, notwithstanding all of the safeguards introduced, the
    presumption of tainting had been effectively rebutted.

In his reasons the motion judge approached this matter on the
    basis that the presumption that confidential information will be inevitably
    imparted to opposing counsel would be rebutted, i.e. that a reasonably informed
    person [would find] that the use of confidential information had not occurred
    or was likely to occur, if opposing counsel has implemented all reasonable
    precautions to minimize the risk. Moreover, the motions judge posits the
    proposition that any residual risk of inadvertent disclosure can be tolerated
    or balanced by consideration of the impact of disqualification on the opposing
    parties right to counsel of choice.

[29]

Lederer J. noted that there was nothing to suggest that the LSUC
    guidelines or some other ethical screen would successfully address every
    conflict in every case. There will be circumstances, such as in this case,
    where the public, represented by the reasonably informed person, could not be
    satisfied that no use of confidential information would occur.

[30]

He determined that the relationship was too close for comfort. The
    Divisional Court accordingly allowed the appeal.

[31]

This court granted leave to appeal on May 16, 2016.

D.

The Applicable Law

[32]

The
applicable test to
    determine whether a disqualifying conflict exists was set out in
MacDonald
    Estate
. Sopinka J. stated, at pp. 1259-60:

The test must be such that the public represented by the
    reasonably informed person would be satisfied that no use of confidential
    information would occur.

[33]

According to Sopinka J., that is the overriding policy and has to inform
    the court in answering whether there is a disqualifying conflict of interest. The
    questions to be answered are: (i) did the lawyer receive confidential
    information attributable to a solicitor and client relationship relevant to the
    matter at hand, and (ii) is there a risk that it would be used to the prejudice
    of the client?:
MacDonald Estate
, at p. 1260.

[34]

There is no issue in this appeal with respect to the answer to the first
    question. It is conceded that Foulds is in possession of such confidential
    information. The appeal therefore turns on the answer to the second question.

[35]

In assessing risk of prejudice to the client, the court is to infer that
    Foulds will impart confidential information to his new colleagues at LBM. However,
    as Sopinka J. explained in
MacDonald Estate
,

that inference is
    rebuttable:

There is, however, a strong inference that lawyers who work
    together share confidences. In answering this question, the court should
    therefore draw the inference, unless satisfied on the basis of clear and convincing
    evidence, that all reasonable measures have been taken to ensure that no
    disclosure will occur by the tainted lawyer to the member or members of the
    firm who are engaged against the former client: p. 1262.

[36]

In this appeal, the inference is rebuttable if the measures instituted
    by LBM would satisfy a reasonably informed person that use of confidential
    information had not occurred or would not occur:
MacDonald Estate
, pp.
    1259-60.

[37]

In
MacDonald Estate
,

Sopinka J. invited lawyers
    professional regulatory bodies to address appropriate measures to prevent the
    disclosure of confidential information in circumstances where a lawyer
    transfers firms. He also noted that, since the legal profession is
    self-governing, the codes of conduct of lawyers governing bodies are an
    important statement of public policy with respect to the conduct of a barrister
    and solicitor: p. 1244.

[38]

The Canadian Bar Association and the Federation of Law Societies of
    Canada established rules and guidelines in response to Sopinka J.s invitation.
    The provincial governing bodies, including the LSUC, then promulgated their own
    rules and guidelines, which generally borrowed heavily from the model rules
    proposed by the Federation of Law Societies.

[39]

At the relevant time, the LSUCs approach to what constitutes adequate
    measures to prevent the disclosure of confidential information was set out in
    r. 2.05 of the LSUCs
Rules of Professional Conduct
under the
    heading Conflicts from Transfer between Law Firms, and more specifically in
    subsection (4) on Law Firm Disqualification:

Where the transferring lawyer actually possesses relevant
    information respecting the former client that is confidential and that, if
    disclosed to a member of the new law firm, may prejudice the former client, the
    new law firm shall cease its representation of its client in that matter unless

(a)

the former client consents to the new law firms continued
    representation of its client, or

(b)

the new law firm establishes that it is in the interests of justice that
    it act in the matter, having regard to all relevant circumstances, including,

(i)     the
    adequacy and timing of the measures taken to ensure that no disclosure to any
    member of the new law firm of the former clients confidential information will
    occur,

(ii)    the extent of prejudice
    to any party,

(iii)   the good faith of the
    parties,

(iv)   the availability of
    suitable alternative counsel, and

(v)    issues affecting the
    public interest.

[40]

Guidelines to protect confidential information are set out in the
    commentary to r. 2.05. In particular, guidelines 1, 10,11 and 12 state:

1.     The
    screened lawyer should have no involvement in the new law firms representation
    of its client.

10.  The screened lawyers office
    or work station and that of the lawyers support staff should be located away
    from the offices or work stations of lawyers and support staff working on the
    matter.

11.   The screened lawyer should
    use associates and support staff different from those working on the current
    matter.

12.   In the case of law firms
    with multiple law offices, consideration should be given to referring conduct
    of the matter to counsel in another office.

[41]

In
Robertson

v.
    Slater Vecchio
, 2008 BCCA 306, 81 B.C.L.R.
    (4th) 472
, the British Columbia Court of Appeal held that not every
    guideline must be followed to the letter.

[42]

Robertson
involved a conflicted lawyer who had acted for
    defendants in various lawsuits while at his old firm and who migrated to a nine-person
    law firm that acted for the plaintiffs. There was some delay in the
    implementation of the ethical screen, and two of the guidelines, which were
    identical to the LSUCs guidelines 11 and 12, were not followed. Despite these
    shortcomings, the application judge held that the test in
MacDonald Estate
was met, and he dismissed the application for disqualification.

[43]

There was no doubt that the tainted lawyer had received confidential
    information. On the issue of the tainted lawyers interaction with other lawyers,
    Newbury J.A. of the B.C. Court of Appeal stated, at para. 14:

The chambers judge noted, it was unclear on the evidence
    whether [the tainted lawyers] work at [his new law firm] was kept far enough
    away from other lawyers and staff, and whether he avoided working with
    associates and staff involved in the [appellants] lawsuits. Given this
    comment, we should assume for purposes of this appeal that [the tainted lawyers]
    work area was not a segregated one and that he is likely to have worked with lawyers
    and staff members who were working on those matters. [Citations omitted.]

[44]

Newbury J.A. also observed that guideline 11 was virtually irrelevant
    where the concern is disclosure of information
by
a lawyer as opposed
to
disclosure
to
him or her. She noted that
    guideline 12 was a particular challenge for small firms and stated, at para. 25:

The Guideline is limited to professional interactions and does
    not purport to prohibit purely social or even administrative contact, contrary
    to the suggestion of counsel for the appellants in this courtThe law does not
    purport to prohibit all interaction, such as participation in management
    activities or even socializing, between the lawyer and his new colleagues.

[45]

Newbury J.A. went on to note that if all interactions were prohibited,
    then disqualification would be a virtual given and the minority opinion of
    Cory J. in
MacDonald Estate
would become the de facto law.

[46]

Ultimately, the B.C. Court of Appeal in
Robertson
was unable to
    conclude that the application judge had misdirected himself, or that his
    decision was so clearly wrong as to amount to an injustice, and therefore dismissed
    the appeal.

[47]

Although
Robertson
involved noncompliance with the guidelines
    and a tainted lawyer who likely had worked with lawyers and staff who were
    working on conflicted matters, the
degree
of
    contact between the tainted lawyer and those working on the conflicted matters
    was dissimilar to that in the case under appeal. That said, the decision in
Robertson
does reiterate the discretionary nature of a determination of disqualification,
    and it also stands for the proposition that compliance with all of the
    guidelines is not mandatory.

[48]

However, implementation of the guidelines is a significant factor to
    consider when an application judge is exercising his or her discretion. Canadian
    courts have typically held that compliance with the guidelines provides
    sufficient protection for the migrating lawyers former client: see
Robertson
;
Dwyer v. Mann
, 2011 ONSC 2163, [2011] O.J. No. 1551; and
Bank of
    Montreal v. Dresler
, 2002 NBCA 69, 253 N.B.R. (2d) 37. That said, while
    highly persuasive, compliance is not determinative.

[49]

Counsel were unable to identify any case that was on all fours with the
    case under appeal.

E.

Positions of The Parties

[50]

The appellant, AIG, submits that it was not the application judge who
    applied the wrong test. Rather, the Divisional Court applied the dissenting
    test articulated by Cory J. in
MacDonald Estate
. The application judge
    properly gave precedence to the integrity of the justice system and only
    considered other values, such as choice of counsel, after he had determined the
    sufficiency of the ethical screen.

[51]

AIG also submits that the Divisional Court ignored post-
MacDonald
    Estate
jurisprudence and that Canadian courts have found that where a law
    firm implements an ethical screen in compliance with the LSUCs requirements in
    a timely manner, the presumption that lawyers share confidences is rebutted.

[52]

Lastly, AIG submits that the Divisional Court applied the wrong standard
    of review. The application judge came to the correct decision and, at the very
    least, it was a reasonable conclusion.

[53]

The respondent, Ontario, submits that the application judge failed to
    distinguish between inevitable incidental contact and a case such as this,
    where the tainted lawyer works closely with the lawyer working on the
    conflicted matter. Instead, he favoured a mechanical application of the LSUC
    guidelines. The concern should be whether a screen is effective, not whether it
    is comprehensive. Not every conflict of interest can be successfully met by
    following the LSUC guidelines.

[54]

Ontario also argues that no weight should be given to the value of AIG
    being represented by its counsel of choice, because the conflict of interest in
    this case was neither inadvertent nor unforeseen. Rather, it was created by
    LBMs own conduct.

[55]

Lastly, Ontario submits that the appellant has failed to refer to any
    case where the work of the two lawyers was so intertwined as in this case.

F.

Analysis

(1)      Standard of Review

[56]

The first issue to consider is whether the Divisional Court applied the
    correct standard of review. In my view, it did.

[57]

The Divisional Court properly identified a disqualification motion as
    being discretionary in nature. Such a decision is reversible where the court
    has misdirected itself, has come to a decision that is so clearly wrong that it
    amounts to an injustice, or where the court gives no or insufficient weight to
    relevant considerations:
Penner v. Niagara Regional Police Services Board
,
    2013 SCC 19, [2013] 2 S.C.R. 125, at para. 27.

(2)      Assessment of the Application Judges Decision

[58]

The Divisional Court spent some time focusing on the dissenting opinion
    in
MacDonald Estate
. The appellant relies on this fact to argue that
    it was simply substituting its discretion for that of the application judge.

[59]

Although its emphasis on the dissent in
MacDonald Estate
was
    unnecessary, I agree with the Divisional Court that the application judge
    misdirected himself. He did so in two respects.

(i)

LSUC Guidelines not Dispositive in Circumstances of this Case

[60]

First, having identified the proper test as described in
MacDonald
    Estate
, the application judge proceeded to treat the guidelines as an
    exhaustive answer and effectively reversed the onus of proof. The application
    judge acknowledged the applicable presumption that lawyers who work together
    share confidences. But, in considering whether that presumption had been
    rebutted, at para. 41, he asked the wrong question.: What more could be done
    to protect the confidentiality of [Ontarios] information?

[61]

To ask this question precludes the possibility that no measure could be
    sufficient to address the degree of professional contact between the two
    lawyers. The application judge assumed that every conflict could be
    successfully met by the imposition of the guidelines. This was in error.

[62]

As an example, as Mr. MacKenzie for AIG candidly acknowledged, no screen
    would effectively screen a firm of two lawyers having a familial relationship. Post-
MacDonald
    Estate
jurisprudence does not uniformly provide that compliance with
    regulatory guidelines precludes disqualification. For example,  in
Winford
    Insulations Ltd. v. Andarr Industries In
c.,
    1998 ABQB 1124, 243 A.R. 1
, where the court held that reasonable
    measures taken to prevent the disclosure of confidential information were
    insufficient to avoid disqualification in a case involving two lawyers who
    worked in close physical proximity in a firm of 10 to 11 lawyers.

[63]

Further, in the province of Ontario, the legal profession has expressly
    recognized that compliance with the rules and guidelines may not be adequate in
    every case. In the commentary to its
Rules of Professional Conduct
,
    the LSUC writes:

It is not possible to offer a set of reasonable measures that
    will be appropriate or adequate in every case. Instead, the new law firm that
    seeks to implement reasonable measures must exercise professional judgment in
    determining what steps must be taken to ensure that no disclosure will occur to
    any member of the new law firm of the former clients confidential
    information.

Adoption of only some of the guidelines may be adequate in some
    cases, while adoption of them all may not be sufficient in others.

[64]

Sopinka J. observed, at p. 1262 of
MacDonald Estate
, that it is
    not for the court to develop standards; that is the role of the governing
    bodies of the self-governing legal profession. The courts role is merely
    supervisory. But neither
MacDonald Estate
,
nor the guidelines themselves, suggest that the court
    should abdicate its supervisory responsibility. In fact, the Supreme Court
    recently reiterated the supervisory role of the courts in resolving conflicts
    of interest. In
Canadian National Railway Co. v. McKercher LLP
, 2013
    SCC 39, [2013] 2 S.C.R. 649, McLachlin C.J. stated, at para. 16:

Both the courts and law societies are involved in resolving
    issues relating to conflicts of interest  the courts from the perspective of
    the proper administration of justice, the law societies from the perspective of
    good governance of the profession. [Citations omitted.]

[65]

I would also add that this decision is not about small firms versus
    large firms. Admittedly, by Toronto standards, LBM is a small firm. It is a
    litigation boutique and consists of 14 lawyers. But, in this case, the size of
    the firm is irrelevant. What is relevant is the integrated nature of Foulds
    and McInnis practices. Foulds works with McInnis 50 to 60 percent of the time.
    While technology, such as e-mail, might serve to diminish face-to-face
    interaction, the potential for inadvertent disclosure is significant. Indeed,
    LBM recognized the potential for such disclosure by imposing a safeguard that
    Foulds office would be located several offices away from those LBM personnel
    working on Ontario-AIG matters. However, this precaution does little to address
    Foulds actual working relationship with McInnis. In addition, Foulds also
    continues to spend 50 percent of his time working for AIG, and AIG is a client
    he shares in common with McInnis.

[66]

Moreover, any disclosure of the subject matter of the confidential
    information held by Foulds has the potential to be very prejudicial to Ontario.
    The dispute between AIG and Ontario relates to coverage. Significantly, Foulds
    was privy to the failed negotiations with AIG and is in possession of the terms
    of the confidential settlements entered into between Ontario and the other
    insurers who were originally disputing coverage along with AIG.

[67]

While the appellants may have achieved technical compliance with the r.
    2.05 guidelines, in my view, compliance with the spirit of those guidelines is
    absent.

[68]

The objective of the guidelines is to limit or screen interaction. This
    is particularly evident from guidelines 10, 11 and 12.   The most striking
    feature of this case is that Foulds spends 50 to 60 percent of his time working
    with McInnis  In the face of that fact, it cannot be said that there is clear
    and convincing evidence that all reasonable measures are being taken to ensure
    that no disclosure would occur by Foulds to AIGs counsel. The public,
    represented by the reasonably informed person, could not be satisfied that no
    use of confidential information would occur between two people with such an
    intense working relationship.

(ii)

Paramountcy of the Integrity of Legal Profession

[69]

Secondly, the application judge treated the examination of the conflict
    issue as a balancing exercise between the three competing interests: protecting
    Ontarios confidential information, the integrity of the legal system, and the
    right to choose ones own counsel. In my view, he erred is so doing.

[70]

Although the right to ones choice of counsel is one of the three values
    identified in
MacDonald Estate
as bearing on the issue of conflict, it
    is not paramount. As noted in that case, and as rephrased by the Saskatchewan
    Court of Appeal in
Wallace v. Canadian National Railroad
, 2011 SKCA
    108, 340 D.L.R. (4th) 402, revd on other grounds (
sub nom. Canadian
    National Railway Co. v. McKercher LLP
) 2013 SCC 39, [2013] 2 S.C.R. 649) at
    para. 55, primacy [is] given to the integrity of both the legal profession and
    the administration of justice overa clients choice of lawyer and lawyer
    mobility.

[71]

While in
MacDonald Estate
,
at p. 1263, Sopinka J. mentions the word balance, it is in a different
    context. There, he was addressing standards to be developed by the Canadian Bar
    Association which would give precedence to the preservation of the
    confidentiality of information imparted to a solicitor, but would also reflect
    the interests relating to choice of counsel and mobility. He was not referring
    to the courts role in addressing a disqualification motion. A court is to give
    primacy to the integrity of the legal profession and the administration of
    justice.

G.

CONCLUSION

[72]

In its submissions, AIG raised the concern that concurrence with the Divisional
    Courts decision would result in uncertainty in the law. This concern lacks
    foundation.  Most cases that are guideline compliant will be unobjectionable.  However,
    this case is most unusual given the intense working relationship between Foulds
    and McInnis. The presumption is that lawyers who work together share
    confidences, absent clear and convincing evidence that all reasonable measures
    have been taken to ensure no disclosure will occur. The evidence in this case
    is neither clear nor convincing.

[73]

As mentioned, the concern of inadvertent disclosure should not be taken
    as a reflection of the integrity of either lawyer. Rather, it is the integrity
    of the justice system that is in issue.

H.

Disposition

[74]

For these reasons, the appeal is dismissed. AIG is to pay Ontarios
    costs of the appeal, including the leave to appeal motion, fixed in the amount agreed
    to by the parties, namely,  $25,000 inclusive of disbursements and applicable
    tax.

Released:

RJS                                                   S.E.
    Pepall J.A.

JAN 24 2017                                     I agree
    Robert J. Sharpe J.A.

I
    agree C.W. Hourigan J.A.

[1]
LSUC uses the less charged term screened in its guidelines.


COURT OF APPEAL FOR ONTARIO

CITATION: Punzo v. Punzo, 2017 ONCA 83

DATE: 20170130

DOCKET: C61677

Feldman, Epstein and Miller JJ.A.

BETWEEN

Viviana Punzo

Applicant (Appellant)

and

Emanuele Punzo

Respondent (Respondent on Appeal)

Ron Shulman, for the appellant

Aurelio Pascuzzi, for the respondent

Heard: September 27, 2016

On appeal from the order of Justice Andra Pollak of the Superior
    Court of Justice, dated December 15, 2015, with reasons reported at 2016 ONSC
    6029.

ADDENDUM

[1]

In our
    reasons for judgment dated December 19, 2016, we remitted this matter back to
    the motion judge for a determination of whether a retroactive change in support
    is warranted, the quantum of such support, and the date of retroactivity. Costs
    of the appeal were awarded to the appellant, Ms. Punzo.

[2]

After
    the release of the reasons, counsel for the appellant wrote to the court
    seeking a ruling on costs that had been awarded to the respondent on the motion
    below. Although the appellant had requested that relief in the Notice of
    Appeal, the matter was not addressed in submissions and we did not address it
    in our reasons.

[3]

Having
    now reviewed written submissions from both parties, we order as follows. The
    cost order on the motion below is quashed. Costs of that motion are remitted
    back to the motion judge in her discretion.

K. Feldman J.A.

Gloria Epstein J.A.

B.W. Miller J.A.