COURT OF APPEAL FOR ONTARIO

CITATION: Ang v. Premium Staffing Ltd., 2015 ONCA 821

DATE: 20151130

DOCKET: C60455

Strathy C.J.O., LaForme and Huscroft JJ.A.

BETWEEN

Fausto Ang Jr. and Nina Buena Bigayan

Respondents (Plaintiffs)

and

Premium Staffing Ltd
.,
    SKR Immigration Services and Rose L. Noel

Appellant (Defendant)

Glenn Yoon, for the appellant Premium Staffing Ltd.

Thomas Mathews, for the respondents

Heard:  November 23, 2015

On appeal from the order of Justice Sandra Chapnik of the
    Superior Court of Justice, dated April 7, 2015.

ENDORSEMENT

[1]

The appellant, Premium Staffing Ltd, appeals from an order of the motion
    judge striking a defence of set-off from its statement of defence in an action
    brought by the respondents.

[2]

The respondents allege they paid the appellants $580,000 in advance pursuant
    to an oral contract with the appellants in exchange for a guarantee of employment
    positions for temporary foreign workers from Taiwan and the Philippines, and
    that the employment contracts turned out to be fraudulent. The vast majority of
    applicants never worked in Canada as promised.

[3]

The appellant counterclaimed for $170,000 it alleges is owing on an oral
    contract with the respondent that makes the respondent the exclusive supplier
    of candidates from Taiwan and the Philippines for temporary work permits. The appellant
    also claimed set-off of $170,000 in its defence.

[4]

The motion judge found that it is plain and obvious that the plea of
    set-off in these circumstances is inappropriate and must be struck. The motion
    judge stated that neither party admitted owing any money to the other.

[5]

On a motion to strike a pleading under Rule 21.01(b) on the ground that
    it discloses no reasonable cause of action, the court must accept the facts
    alleged  as proven unless they are patently ridiculous or incapable of proof:
Nash v. Ontario
(1995), 27 O.R. (3d) 1 (C.A.) at 6.

[6]

In this case, that means that there is an oral contract pursuant to
    which the respondents owe the appellant $170,000 and that the respondents
    submitted fraudulent information in their work permit applications, causing
    damage to themselves as well as the appellant.

[7]

Although the nature of the set-off was not pleaded, the motion judge
    properly treated the pleading as one for equitable set-off.

[8]

The motion judge set out the relevant principles governing equitable
    set-off approved in
Holt v. Telford
, [1987] 2 S.C.R. 193, at p. 212:

1.

the party
    relying on a set-off must show some equitable ground for being protected
    against his adversarys demands;

2.

the equitable ground must go to the very root of the
    plaintiff's claim before a set-off will be allowed;

3.

a cross-claim must be so clearly connected with the
    demand of the plaintiff that it would be manifestly unjust to allow the
    plaintiff to enforce payment without taking into consideration the cross-claim;

4.

the plaintiff's claim and the cross
-
claim need not arise out of the same contract; and

5.

unliquidated claims are on the same footing as
    liquidated claims.

[9]

However, her decision does not address these principles specifically. The
    motion judge simply stated that the parties disagree as to the nature of the
    contract or agreement between them and that neither admits owing any money to
    the other. She added that the conflict was more appropriately dealt with by
    means of a counterclaim.

[10]

It
    is not clear why the appellant chose to plead set-off in addition to making a
    counterclaim, or what advantage there is to the respondents to attempt to
    strike out the plea of set-off in these circumstances. Be that as it may, once
    set-off was pleaded it, was incumbent on the motion judge to address the
Telford
factors in order to make a decision on the motion and she failed to do so.

[11]

We
    are satisfied that this is a proper claim for set-off on the
Telford
test. Although there is disagreement about the nature of the parties
    contractual relationship, there is no question that the claims of the appellant
    and respondent are closely connected and arise out of one or more related contractual
    relationships between them.

[12]

The
    appellants plea of set-off is relatively thin. However, the motion judge was
    required to read the statement of claim generously with allowance for
    inadequacies due to drafting deficiencies:
Nash
. The lack of
    particularity caused no prejudice to the respondents.

[13]

Accordingly,
    the appeal is allowed.

[14]

The
    appellant is entitled to its costs from the respondent, fixed by agreement of
    the parties at $5700, inclusive of disbursements and all applicable taxes.

G.R.
    Strathy C.J.O.

H.S. LaForme J.A.

Grant
    Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Brown v. Wahl, 2015 ONCA 778

DATE: 20151116

DOCKET: C60253

Cronk, Epstein and Huscroft JJ.A.

BETWEEN

Louise Suzanne Brown

Plaintiff (Appellant)

and

John Wahl and Maurizio Casciato

Defendants (Respondents)

Mark H. Arnold and Joyce Weinman, for the appellant

Andrew Lundy, for the respondents

Heard: November 9, 2015

On appeal from the order of Justice David G. Stinson of
    the Superior Court of Justice, dated February 27, 2015, with reasons reported
    at 2015 ONSC 1328.

By the Court:

[1]

This is an appeal from the summary judgment granted by the motion judge
    dismissing the appellants negligence action against the respondents because it
    is statute-barred due to the expiry of the two-year limitation period under s.
    4 of the
Limitations Act, 2002
, S.O. 2002, c. 24, Sched. B. (the
    Act).

[2]

The appellant raises two main grounds of appeal.  First, relying on this
    courts decision in
Lawless v. Anderson
, 2011 ONCA 102, 276 O.A.C. 75,
    she argues that the motion judge erred by failing to apply the test for discoverability
    of a negligence claim in a case where, as here, the claim arises from elective
    cosmetic dental surgery.

[3]

Lawless
was a medical malpractice case.  In describing when the
    plaintiff knew all the material facts required to discover her claim against
    the defendant, this court stated, at para. 30:

It was clear to the appellant at this point that she had
    suffered more than an unfortunate and unsatisfactory outcome.  She was aware of
    what was wrong, why it was wrong, what would have to be done to correct it and
    who was responsible.  In other words, the appellant had all of the material
    facts necessary to determine that she had
prima facie
grounds for
    inferring that the respondent had been negligent.

[4]

The appellant submits that, in the above-quoted passage, the
Lawless
court established a four-part test for determining when a prospective plaintiff
    may be said to have known the material facts necessary for bringing a
    negligence claim against a medical practitioner in a cosmetic surgery action.
    This test establishes, according to the appellant, that such a claim is
    discovered by the prospective plaintiff only when he or she knows: i) of the
    harm alleged; ii) why it was wrong; iii) what action is required to correct the
    wrong; and iv) who was responsible.

[5]

Based on this suggested four-part test, the appellant argues that the
    motion judge erred by failing to properly or adequately analyze the evidence and
    apply it to the questions of when the appellant was positioned to determine
    why her dental treatment by the respondents was wrong and what would have
    to be done to correct it.

[6]

We reject this argument.

[7]

First,
Lawless
does not create a new four-part test for
    discoverability in respect of professional malpractice claims.  To the
    contrary,
Lawless
confirms, at para. 30, that the test for
    discoverability is when a prospective plaintiff had all of the material facts
    necessary to determine that she had
prima facie
grounds for inferring
    that the respondent had been negligent.  The
Lawless
courts
    reference, immediately preceding this comment, to the four factors relied on by
    the appellant reflects the application of this test to the evidence before the
    court in
Lawless
.

[8]

That
Lawless
does not establish a new test for discoverability
    is further confirmed by this courts comments in
Lawless
, at para. 23:

Determining whether a person has discovered a claim is a
    fact-based analysis.  The question to be posed is whether the prospective
    plaintiff knows enough facts on which to base an allegation of negligence
    against the defendant.  If the plaintiff does, then the claim has been
    discovered, and the limitation begins to run: see
Soper v. Southcott
(1998), 39 O.R. (3d) 737 (C.A.) and
McSween v. Louis
(2000), 132
    O.A.C. 304 (C.A.).

[9]

These statements accord with the well-established test for
    discoverability described by the Supreme Court of Canada in
Peixeiro v.
    Haberman
, [1997] 3 S.C.R. 549, at para. 18.

[10]

Second,
    we see no error in the discoverability analysis conducted by the motion judge.

[11]

Section
    5(1) of the Act provides:

A claim is discovered on the earlier of,

(a)     the day on which the person with the claim first knew,

(i)    that the injury, loss or
    damage had occurred,

(ii)    that the injury, loss or
    damage was caused by or contributed to by an act or omission,

(iii)   that the act or omission
    was that of the person against whom the claim is made, and

(iv)   that, having regard to the
    nature of the injury, loss or damage, a proceeding would be an appropriate
    means to seek to remedy it; and

(b)     the day on which a reasonable person with the abilities
    and in the circumstances of the person with the claim first ought to have known
    of the matters referred to in clause (a).

[12]

Under
    s. 5(2) of the Act, a claimant is presumed to have known of the matters
    referred to in s. 5(1)(a) on the day the act or omission on which the claim is
    based took place, unless the contrary is proved.

[13]

The
    motion judge considered these provisions of the Act and the governing
    principles regarding discoverability.  He expressly addressed this courts
    decision in
Lawless
, noting this courts comments at para. 23, set out
    above.  He went on to find that:

1)

prior
    to December 13, 2011, when the appellant met with Dr. Singh, her new dentist,
    she was experiencing serious and ongoing problems associated with the implant
    and dental prostheses procedures performed by the [respondents];

2)

at
    the December 13, 2011 meeting, Dr. Singh informed the appellant that he would
    have conducted the procedure differently, and would have used a surgical guide
    to place the implants in an ideal location, which would enable him to predict
    where the implants needed to go to achieve ideal anesthetics, speech and
    function; and

3)

at
    the same meeting, Dr. Singh also explained to the appellant the problem with
    her prostheses and the cause of breakage in her dentures.

[14]

These
    findings of fact were open to the motion judge on the evidentiary record before
    him.  They are unchallenged on appeal.  They amply support the motion judges
    conclusion that, armed with the facts known to her before December 13, 2011 and
    the information provided to her by Dr. Singh at their December 13, 2011
    meeting, the appellant ought to have known, by that date, that the dental
    problems she was experiencing were caused by substandard treatment by one or
    both of the respondents.  In short, the appellant knew sufficient facts at the
    end of her December 13, 2011 consultation with Dr. Singh on which to base an
    allegation of negligence against the respondents.

[15]

This
    was sufficient to establish that the appellant discovered her claim no later
    than December 13, 2011 and, consequently, that the limitation period began to
    run on the same day.  The law of discoverability does not require that a
    prospective plaintiff know the exact extent or type of harm he or she has
    suffered, or the precise cause of his or her injury, in order for a limitation
    period to run:
Peixeiro
, at para. 18.  We therefore agree with the
    motion judges conclusion that the appellants actions against the respondents
    were statute-barred because they were commenced in January 2014, after the
    expiry of the two-year limitation period under the Act on December 13, 2013.

[16]

The
    appellant also attacks the motion judges finding that an expert opinion was
    unnecessary in this case in order for the appellant to conclude that there was
    a likelihood of negligence of some kind by one or both of the respondents.

[17]

Contrary
    to the appellants submission, this finding does not collide with the
    proposition that expert evidence is required to establish breach of a duty of
    care by a medical professional.  There is an important difference between proof
    of the discovery of a claim for the purpose of the commencement of a limitation
    period under the Act and proof of the breach of a duty of care.  As this court
    stated in
Lawless
, at para. 28:

While courts speak of the need to obtain a medical opinion or
    the need to have access to the medical records, these are not required in all
    cases.
Moreover, a formal written medical opinion is not required  what a
    prospective plaintiff must know are the material facts necessary to make a
    claim, whatever form they come in
.  [Citations omitted; Emphasis added.]

[18]

The
    motion judge put it this way, at paras. 3334:

While [the appellant] may have learned additional information
    about [the respondents] substandard treatment once she received the expert
    reports in early 2014, in my view, those reports do not detract from the fact
    that she had sufficient knowledge to be aware of a breach by December 13, 2011
    at the latest.  Put another way, I find that the claims were discoverable by
    that date.

This is not a case in which an expert opinion was necessary for
    the plaintiff to conclude that there was the likelihood of negligence of some
    kind.  As the cases mentioned above make plain, it is enough for the plaintiff
    to have
prima facie
grounds to infer that the defendants caused harm,
    and certainty of the defendants responsibility for the act or omission that
    caused the loss is not a requirement for the limitation period to begin to run.

[19]

We
    agree.

[20]

Finally,
    we note that there is no suggestion that this was an inappropriate case for
    summary judgment under the principles enunciated in
Hryniak v. Mauldin
,
    2014 SCC 7, [2014] 1 S.C.R. 87.  Nor is there any suggestion that the motion
    judge exceeded his authority on the summary judgment motion.  Rather, the
    appellant takes aim at the motion judges conclusions on the motion.

[21]

For
    the reasons given, the appellants challenge to the motion judges decision
    fails and the appeal is dismissed.  The respondents are entitled to their costs
    of the appeal, if sought, fixed in the amount of $6,528, inclusive of
    disbursements and all applicable taxes.

Released:

NOV 16 2015                                   E.A.
    Cronk J.A.

EAC                                                Gloria
    Epstein J.A.

Grant
    Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Candito v.
    Nmezi, 2015 ONCA 793

DATE: 20151119

DOCKET: M45706 (C61046)

Brown J.A. (In Chambers)

BETWEEN

Marilena Candito

Plaintiff

and

Chinedu Nmezi, Paulette Rhodzn and
Economical Insurance Group

Defendants (
Appellant
/

Moving Party
)

and

State Farm Mutual Automobile Insurance Company

Third Party (Respondent/

Responding Party)

James Tausendfreund, for the moving party

Philip Pollack, for the responding party

Heard: November 17, 2015

ENDORSEMENT

OVERVIEW

[1]

Civil litigation in the public courts can only deliver timely and
    cost-effective justice if the parties perform certain basic procedural
    obligations. One such obligation requires a party to settle an order under
    appeal in a timely fashion so that an appellant can perfect its appeal within
    the timeframe stipulated by the
Rules of Civil Procedure
. This
    obligation has been recognized for some time. Almost fifteen years ago, The
    Advocates Society specifically addressed this obligation in its
Principles
    of Civility for Advocates
. Principle 16 provides, in part, that counsel
    should promptly prepare and submit a proposed order to opposing counsel and
    attempt to reconcile any differences before the draft order is presented to the
    Court.

[2]

In the present case, the respondent, State Farm Mutual Automobile
    Insurance Company (State Farm), failed to perform that basic obligation in a
    misguided attempt to thwart the ability of the Economical Insurance Group (Economical)
    to exercise its right of appeal.

[3]

State Farms litigation tactics compelled Economical to bring a
    motion to extend the time to perfect its appeal.
Although the substantive
    relief sought by Economical ended up going on consent, for the reasons set out
    below I conclude that State Farms unreasonable litigation conduct justifies
    awarding Economical partial indemnity costs of $5,000.00.

BACKGROUND EVENTS

[4]

The issue in Economicals third party claim
    against State Farm was a straight-forward one: at the time of a motor vehicle
    accident in February 2005, were the defendants, Chinedu Nmezi and Paulette Rhodzn,
    insured by a valid policy of auto insurance issued by State Farm, or were they
    covered by uninsured motorist coverage under the plaintiffs policy with
    Economical?

[5]

Beginning in early 2012, State Farm scheduled
    five return dates for a motion for summary judgment to dismiss Economicals
    third party claim. State Farm finally proceeded with its motion on August 20,
    2015 before Wright J., who granted summary judgment dismissing Economicals
    third party claim. Wright J. gave oral reasons for her decision.

[6]

Economical exercised its right to appeal, and it
    served a notice of appeal and certificate respecting evidence on September 17,
    2015, within the 30-day period stipulated by r. 61.04(1) of the
Rules of
    Civil Procedure
. It filed those materials with the court on September 24,
    2015.

[7]

Under r. 61.09(1), Economical was required to
    perfect its appeal within 30 days after filing its notice of appeal, in this
    case by October 26, 2015. To perfect its appeal, Economical needed to include
    in its appeal book a copy of the order appealed from as signed and entered, and
    a copy of the reasons of the court appealed from: rr. 61.10(1)(c) and (d).
    Obtaining those two items did not lie within the sole control of Economical  it
    needed to obtain a transcription of the oral reasons of Wright J. from the
    court, and required the co-operation of State Farm to sign and enter the order
    of Wright J.

[8]

Economical sought a transcript of the motion
    judges reasons on September 21; it received them on October 19, 2015, just a
    few days before the deadline for perfecting the appeal.

[9]

Although State Farm succeeded on its motion for
    summary judgment, it did not act to take out the order. Of course, it is open
    to any party affected by an order to prepare a draft of the formal order and
    send it to all other parties represented at the hearing for approval as to form
    and content: r. 59.03(1). Although Economical could have started the process of
    preparing a draft order immediately upon serving its notice of appeal, it did
    not begin that process until two days after receiving the transcribed reasons
    of Wright J.

[10]

In any event, that delay proved of no
    consequence because of the subsequent conduct of State Farm. On October 21
    still within the perfection period  Economical sent a draft order to State
    Farms counsel for approval as to form and content. It was a simple draft order:
    motion granted; costs awarded. Economical also requested State Farms consent
    to a 60-day extension to perfect the appeal in light of the time it took to
    obtain the transcribed reasons.

[11]

No response from State Farms counsel.

[12]

Economicals counsel left a phone message for
    State Farms counsel on October 23; State Farms left a message on October 26,
    the deadline for the perfection of the appeal.  When counsel finally spoke on October
    27, State Farm was not prepared to consent to an extension of time to perfect the
    appeal nor did it approve the draft order as to form and content.

[13]

On October 28, Economical received from the
    court a notice of intention to dismiss the appeal for delay unless it was
    perfected by November 17, 2015.

[14]

On November 2, State Farms counsel advised
    Economical that his client would be opposing any motion to seek an extension of
    time for perfecting the appeal on the ground that Economical has not provided
    reasonable grounds for an extension. State Farms counsel remained silent on
    the form of the draft order. Economical immediately brought this motion to
    extend the time to perfect.

[15]

At the hearing of the motion, State Farms
    counsel explained his clients silence on approving the order  since it was
    opposing the motion to extend the time to perfect the appeal, State Farm planned
    to wait until that motion was dealt with by the court before settling the order
    appealed from. Given that State Farms failure to settle the order in a prompt
    fashion was the main obstacle to perfecting the appeal, one would have thought
    that the unreasonableness of this position would have been apparent to State
    Farm.

[16]

On November 5, Economical filed the inevitable
    two inches of materials in support of its motion to extend: motion record,
    factum, and book of authorities.

[17]

At the same time, it served an offer to settle
    the motion on the basis of extending the time to perfect until January 17, 2015
    and State Farms payment of $3,000 in costs. No immediate uptake by State Farm.

[18]

On November 11, 2015, State Farm finally
    approved the draft order and advised it would agree to an extension of time to
    perfect until December 17, 2015. State Farm made no offer to pay any of
    Economicals motion costs.

[19]

At the hearing of the motion on November 17,
    State Farms counsel advised that his firm submitted the approved order to the
    Superior Court of Justice for signing and entry the week before. The Registrar
    of that court was not prepared to process the order on an expedited basis. Counsel
    evidently did not draw the Registrars attention to the policy of this court
    set out in s. 11.2(2) of its
Practice Direction Concerning Civil
    Appeals in the Court of Appeal
that summary judgment
    appeals will be expedited without the necessity of an order to that effect.

[20]

The parties have now agreed to an order
    extending the time to perfect the appeal until December 17, 2015, and I grant
    that order.

COSTS ANALYSIS

[21]

The parties cannot agree on costs. Economical
    seeks its partial indemnity costs of the motion in the amount of $5,000.00, all
    in. State Farm submits that such a request is unreasonable and that each side
    should bear its own costs.

[22]

I disagree with State Farms submission. Economicals
    request for costs is most reasonable. The unreasonableness in the events which
    transpired consisted solely in State Farms failure to perform its obligation
    to settle an order subject to appeal in a timely fashion. For State Farm to
    take the position that it would not settle the order under appeal until
    Economical had argued its motion to extend the time to perfect amounted to
    unacceptable litigation gamesmanship. From the submissions it made at the
    hearing of the motion, it is apparent that State Farm delayed responding to
    Economicals requests to settle the order so that it could manoeuver Economical
    into a position where it might be required to argue the merits of its appeal in
    order to secure an extension of time to perfect. That was the thrust of the
    submissions made by State Farms counsel based upon a book of authorities
    tendered at the hearing.

[23]

In my view, such unreasonable litigation tactics
    by State Farm would have merited an award of full indemnity costs against it. However,
    Economical only requested partial indemnity costs, so I am limited by its
    request.

DISPOSITION

[24]

For the reasons set out above, I order that the
    time for the perfection of this appeal is extended until December 17, 2015. I
    direct State Farm to contact the Registrar of the Superior Court of Justice for
    the Toronto Region and ask that the order of Wright J. be issued and entered on
    an urgent basis so that the appeal book can be finalized before the date for
    perfection. Finally, I order State Farm to pay Economical its partial indemnity
    costs of the motion in the amount of $5,000.00, inclusive of HST and
    disbursements, by Tuesday, November 24, 2015.

David Brown
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION
: Carter v. 1657593
    Ontario Inc.
(The Olde Angel Inn), 2015 ONCA 823

DATE: 20151127

DOCKET: C59744

Laskin, Pardu and Roberts JJ.A.

BETWEEN

Graham Carter

Respondent

and

1657593 Ontario Inc. (O/A The Olde Angel Inn)

Appellant

David House, for the appellant

Adam Stewart, for the appellant

Bradley Troup, for the respondent

Christopher Dilts, for the respondent

Heard and released orally: November 24, 2015

On appeal from the judgment of Justice J.A. Ramsay of the
    Ontario Superior Court of Justice, dated November 20, 2014.

ENDORSEMENT

[1]

On this appeal, the appellant challenges only the trial judges finding
    that the respondent had adequately mitigated his damages arising out of a
    wrongful termination from his employment by the appellant.

[2]

The trial judge found that the respondent made reasonable efforts to mitigate
    his damages and that the appellant failed to discharge his onus to demonstrate
    that he had failed to do so.

[3]

The trial judges decision is well supported by the evidence at trial
    and is entitled to considerable deference on appeal. We see no reason to
    interfere.

[4]

The respondents re-employment prospects were diminished. At
    termination, he was in his fifties, with limited education, and had worked for
    most of his adult life for one employer, the appellant. The appellant did not
    provide the respondent with a letter of reference; the respondent searched for
    new employment while under the cloud of his former employers accusations of
    theft and other wrongdoing.

[5]

The respondent checked advertisements, submitted a résumé, and reached
    out to his contacts in the hospitality industry. The latter effort led to the
    best offer of employment that he received from the Colonel Butler Inn. This is consistent
    with the opinion of the appellants employment expert that most jobs are
    unadvertised.

[6]

To mitigate his damages, the respondent was not obliged to accept
    employment that was not comparable to his employment with the appellant. The
    job with the Colonel Butler Inn was not comparable in status, hours, or remuneration.
    In the circumstances as the trial judge found, the respondents subsequent
    acceptance of the part-time job with the Sandtrap bar, with the hope of
    building up his Double Z bar business, was reasonable.

[7]

There was no evidence of other employment opportunities available during
    the twenty-month notice period that would have been comparable to the
    respondents former employment with the appellant.

[8]

The appellants expert was not prepared to opine about the respondents
    specific employment prospects, qualifying her general statement that he may
    very well have found a similar job, with her lack of knowledge about the
    respondents industry, and the difficulties that the respondent faced because
    it was an employers market, the respondent was looking for a job without a job,
    and he had been out of the job market for nineteen years.

[9]

Finally, there is no basis to interfere with the trial judges decision
    not to attribute income from the Double Z bar business to the respondent. The
    trial judge was satisfied on the basis of the businesss financial statements,
    the deficiencies of which were known to and weighed by the trial judge, and the
    respondents evidence, that the bar was not generating enough revenue to pay
    him a salary.

[10]

As
    a result, the appeal is dismissed.

[11]

Costs
    to the respondent are set at $15,000 all inclusive.

John
    Laskin J.A.

G.
    Pardu J.A.

L.B.
    Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Cassidy v. Belleville (Police Service), 2015 ONCA
    794

DATE: 20151123

DOCKET: C60466

Cronk, Epstein and Huscroft JJ.A.

BETWEEN

Paula Cassidy

Plaintiff/Appellant

and

Belleville Police Service and Wayne Groen

Defendants/Respondents

R. Steven Baldwin and Jordan Sewell, for the appellant

Kristin Muszynski and Kevin Cooke, for the respondents

Heard:  November 12, 2015

On appeal from the summary judgment of Justice Stanley J.
    Kershman J. of the Superior Court of Justice, dated April 17, 2015.

ENDORSEMENT

[1]

Paula Cassidy, the appellant, appeals from the order of the motion judge
    granting summary judgment and dismissing her action in negligence against the
    respondents on the basis that it is barred by operation of the two-year
    limitation period established by s. 4 of the
Limitations Act
, 2002,
    S.O. 2002, c. 24, Sched. B (the Act).

[2]

The action arose out of the actions of Officer Wayne Groen of the
    Belleville Police Service, who stopped the appellant while she was driving her
    car on August 18, 2009. Officer Groen informed the appellant that the car was
    stolen and confiscated it, leaving the appellant and her children to make their
    way home. The appellant was pregnant at that time and alleges that she suffered
    medical complications relating to her pregnancy as a result of Officer Groens
    conduct.

[3]

The appellant wrote to a lawyer on August 24, 2009 asking whether she
    should pursue a civil action, but did not commence her claim at this time.

[4]

On September 11, 2009, the appellant wrote a letter of complaint to the
    Belleville Police Service. She received a reply to her complaint on June 23,
    2011 and, on July 8, 2011, she requested a review of her complaint by the Ontario
    Civilian Police Service. The appellants complaint was upheld, in part, and she
    was informed of the decision on November 29, 2012 in correspondence from the
    Belleville Chief of Police.

[5]

On October 10, 2013  more than four years following the incident
    involving Officer Groen  the appellant commenced her action.

[6]

The motion judge found that the limitation period commenced on August
    18, 2009 at the earliest (the date of the incident) and August 24, 2009 at the
    latest (the date the appellant wrote to a lawyer).

[7]

The appellant argues that the limitation period did not begin to run
    from the date of the incident involving Officer Groen because she was not
    familiar with the standard of care required of police officers at that time. She
    characterizes her correspondence with a lawyer several days following the
    incident as an inquiry and submits that it was reasonable for her to pursue
    available administrative remedies in order to determine the material facts
    before commencing her action.

[8]

The appellant maintains that the limitation period did not begin to run
    until November 29, 2012, the date she learned of the decision of the Ontario
    Civilian Police Service regarding its review of her complaint. This is the
    date, according to the appellant, that she was informed of the standard of care
    required of police officers.

[9]

The appellants arguments must be rejected. We see no error in the
    motion judges discoverability analysis.

[10]

A
    claim is discovered on the date the claimant knew, or ought to have known, of
    the material facts giving rise to the claim. As this court explained in
Lawless
    v. Anderson
, 2011 ONCA 102, at para. 23:

Determining whether a person has discovered a claim is a
    fact-based analysis. The question to be posed is whether the prospective
    plaintiff knows enough facts on which to base an allegation of negligence
    against the defendant. If the plaintiff does, then the claim has been
    discovered, and the limitation begins to run.

[11]

It
    was presumed under s. 5(2) of the Act that the appellant knew of the matters
    giving rise to her potential claim on the day the incident took place  August
    18, 2009  unless the contrary was proved. The appellant raised no evidence to
    rebut this statutory presumption. Accordingly, by the time the appellant
    commenced her action in October 2013, the limitation period had expired and her
    action was statute-barred.

[12]

This
    is not a case in which expert evidence was required in order for the appellant
    to discover her claim. The facts of the case were relatively straightforward
    and known to the appellant from the time of the incident. She was aware of the
    offending conduct, the identity of the offender, and the nature of her
    injuries.

[13]

The
    administrative processes the appellant invoked concerned the oversight of
    police conduct and maintenance of police standards. Although these processes
    provided additional information in support of the appellants claim, discovery
    of her claim did not depend on them.  Discovery of sufficient material facts to
    trigger commencement of the limitation period did not depend on precise
    knowledge of the applicable standard of care and whether Officer Groens
    conduct fell below it.

[14]

The
    appellant relied on
Coutanche v. Napolean Delicatessen
, [2004] O.J.
    No. 2746, 72 O.R. (3d) 122, in support of the proposition that a potential
    plaintiff may engage a commission to perform an investigation into a matter and
    await its decision prior to commencing an action.
Coutanche
does not
    assist the appellant. Unlike this case,
Coutanche
involved the
    possible extension of a limitation period under family law legislation,
    something that is not available in these circumstances.

[15]

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

E.A. Cronk J.A.

Gloria
    Epstein J.A.

Grant
    Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:  Correia v. Smith, 2015 ONCA 743

DATE: 20151105

DOCKET: C60185

Feldman, Lauwers and Benotto JJ.A.

BETWEEN

Jose A. Correia a.k.a. Joe E. Correia and 1664478
    Ontario Inc.

Applicants (Respondents)

and

Bradly Capen Smith c.o.b.a. Smith Trucking and
6395287
    Canada Incorporated c.o.b.a. Canadian Diesel Services

Respondents (Appellant)

Matthew R. Todd, for the appellant 6395287 Canada
    Incorporated c.o.b.a. Canadian Diesel Services

Kowlasar Misir, for the respondents

Heard: October 26, 2015

On appeal from the order of Justice K. W. Whitaker of the
    Superior Court of Justice, dated February 10, 2015, noted as 2015 ONSC 915.

ENDORSEMENT

[1]

In this application under the
Repair and Storage Liens Act,
t
he application judge awarded the
    respondent damages for breach of a lease agreement and the improper sale of the
    respondents vehicle by the appellant, Canadian Diesel. For the reasons that
    follow, the appeal is allowed and the application dismissed.

[2]

Section 15 of the Act, sets out the obligatory contents of the notice of
    intention to sell an article that must be given by the lienholder. The Act does
    not prescribe the form of the notice. The application judge found that Canadian
    Diesels notice was deficient for three reasons: it lacked a statement about
    redemption; it did not mention to whom payment was to be made required by s. 15(3)(e);
    and it provided no particulars of the private or public sale required by s.
    15(3)(f).

[3]

However, in our view, the notice did contain a statement about
    redemption in the sentence: Smith Trucking may regain possession of the
    vehicle upon payment, in certified funds, of the amount of $18,318.77, plus any
    additional storage charges.  The Act requires that the notice contain a
    statement of the name of the person to whom payment may be paid.  The notice
    was on the letterhead of Canadian Diesel Services, which was the person to
    whom payment may be made. The notice was sent by a named representative of
    Canadian Diesel. The notice complied with s. 15(3)(e) of the Act.

[4]

Section 15(3)(f) of the Act provides that the notice must contain a
    statement of the date, time and place of any public sale at which the article
    is to be sold, or the date after which any private sale of the article is being
    made. Canadian Diesels notice contained the following:

Should payment of the applicable sum not be received by
    Canadian Diesel Services within twenty-five (25) days of the date of this
    letter, we will have no alternative but to offer the vehicle for sale in order to
    recover the amount owing to us.

[5]

The application judge found that the notice was deficient in failing to provide
    particulars of the private or public sale, but this finding misapprehended the evidence.
    The notice advised that there would be a private sale after 25 days. This
    constituted full compliance with the statutory requirement.

[6]

The application judge also found that the notice had not been properly
    served on the respondents: the applicant never received any notice of the pending
    sale. However, the clear evidence is that notice was properly served on the
    respondent by registered mail, as required by s. 27 of the Act.  Although it
    was returned by Canada Post, the Act deemed notice to have been effective, and
    counsel for the respondent conceded in argument that the deeming provision of
    the Act was not rebuttable.

[7]

In any event, a representative of Canadian Diesel attended at Mr.
    Correias house, at the very address to which the notice had been sent, and
    fully informed him of the situation in January 2014, well before the truck was
    sold in March.

[8]

The application judge found, alternatively, that Canadian Diesel had
    waived the served notice: after the notices were mailed, the parties entered
    into a compromise agreement ... by entering into another agreement, CD had
    waived its right to rely on the notice and taking further action to sell the
    truck. In our view, the compromise was not completed, and did not amount to a
    waiver of the original notice that would compel Canadian Diesel to start the
    process over again. The evidence is that Mr. Smith (the lessee of the truck)
    came to Canadian Diesel with cash to pay for the repairs at the compromised
    value, but the truck would not start and he left with the money. This is not a
    case like
McKennas Warehouse and Distribution Centre Inc. v. General
    Exhibition Corp
. (1998)
84 A.C.W.S. (3d) 577
, [1998] O.J. No. 5106
    (Gen. Div.), where the lienholder entered into an agreement to compromise the
    amount of the lien, was fully paid, and then attempted to execute on the lien
    in any event.

[9]

The truck sat in the yard from September 2013 to late January 2014 while
    Canadian Diesel awaited payment. The evidence shows that by that time the
    trucks ECM unit was no longer operational. The respondents argue that
    Canadian Diesel had an obligation to keep the truck in good repair and not
    permit it to deteriorate while in storage, consistent with Canadian Diesels
    duty under s. 28(1) of the Act to use reasonable care, custody and
    preservation of the article.    However, there is no authority for the proposition
    that Canadian Diesel had an obligation to keep the truck operative over the
    many months that it sat in the yard because the repairs remained unpaid.

[10]

The
    respondent argues that the sale price was too low, since the truck was sold as
    is, when it was no longer operational. The application judge stated only: I
    find that the sale of the truck was not commercially reasonable contrary to the
Act
. He gave no reasons for this finding.

[11]

The
    evidence is that Canadian Diesel sold the truck for $30,000 on March 10, 2014.
    The evidence establishes that the sale price was not improvident. The appellant
    filed two appraisal reports in evidence before the application judge. One set the
    trucks estimated value for the unit as is in the $30,000 range, and the
    retail value with the safety inspection and an E test should be in the $40,000
    range. The second report stated that the value of the unit in its current
    non-running condition is at $32,000 plus applicable taxes, and, with bid range
    values on a running condition Unit with Annual Safety Certificate at $35,000 to
    $36,000 range, depending on Market Conditions at the time of sale. The
    respondents evidence was that the truck was eventually offered for sale by Canadian
    Diesels purchaser for $48,000, but there is no evidence regarding the actual
    sale price or what repairs the purchaser might have made to the truck to ready
    it for resale.

[12]

The
    respondent argues that the appellant had an obligation to repair the truck
    before offering it for sale, and relies on an expansive understanding of the
    commercially reasonable standard, citing
Melrose v. Halloway Holdings
    Ltd.(c.o.b. Valiant Mini Storage)
(2005),
30 C.C.L.T. (3d) 245
,
[2005] O.J. No. 102 (S.C.)
, at para. 37. However,
Melrose
does not go so far as to oblige a lienholder to effect
    repairs, and the respondents counsel was unable to point to any other
    authority that stood for that proposition.

[13]

In
    view of the several errors identified above that were made by the application
    judge, and the fact that this case was argued on an entirely documentary record,
    this court is in as good a position as the application judge to resolve the
    issue, and ought to do so under s. 134 of the
Courts of Justice Act
:
Katsigiannis
    v. Kottick-Katsigiannis
(2001),
55 O.R.
    (3d) 456,
[2001] O.J. No. 1598
    (C.A.)
at paras. 30-31. On this basis, we allow the appeal and
    dismiss the application with costs.  It is unnecessary to address the
    appellants arguments about changes in the draft judgment that went beyond the
    application judges endorsement.

[14]

The
    appellant is entitled to costs in the agreed amount of $6,000, and is also
    entitled to costs of the original application in the amount of $7,000.

K.
    Feldman J.A.

P.
    Lauwers J.A.

M.L.
    Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Cortina v.
    Cortina, 2015 ONCA 750

DATE: 20151106

DOCKET: C59454

Blair, Hourigan and Brown JJ.A.

BETWEEN

Giuseppina Rossi Cortina

Applicant

(Appellant)

and

Pietro Joseph Cortina

Respondent

(Respondent)

Tony Sferruzzi, for the appellant

Deborah Ditchfield, for the respondent

Heard: October 28, 2015

On appeal from the judgment of Justice C. Lafrenière of
    the Superior Court of Justice, dated September 15, 2014.

ENDORSEMENT

[1]

Ms. Cortina appeals from the judgment of Lafrenière J. dated September
    15, 2014 providing, amongst other things, for the custody of the couples
    teen-aged children, the payment of child support and the equalization of property.
    She submits that the trial judge erred in three respects:

(a) by awarding sole custody of the
    children to the respondent;

(b) by assessing child support based
    on the respondents 2012 income rather than his 2013 income; and

(c) by finding that certain
inter
    vivos
payments and testamentary bequests received by the respondent from
    his mother and his mothers estate were to be excluded from his net family
    property calculation.

[2]

The appellant also seeks to appeal from the trial judges decision
    awarding costs of the trial to the respondent in the amount of $95,498.39.

[3]

With the exception of the variation to the costs order discussed below,
    we do not accept the appellants submissions. They are almost entirely based on
    arguments of fact or at least of mixed fact and law and we see no palpable and
    overriding error (or, indeed, any error) in the trial judges careful and
    thorough review of the evidence (including her clear findings of credibility in
    favour of the respondents testimony and against the appellants), in the
    findings she made and inferences she drew, or in her application of the law to
    those findings.

Custody

[4]

The custody decision is supported on the evidence and properly reflects
    the trial judges finding on the conduct of the appellant as it pertained to
    the children and as it would impact the likelihood of a successful shared
    custody situation.  The trial judge was justified in granting full legal
    custody to the respondent in the circumstances. That said, her order carefully
    provides for shared custody time (alternate weeks living with the appellant and
    the respondent), and seeks to ensure that both parties have a meaningful input
    into the decision-making process regarding the childrens activities and best
    interests.

[5]

The trial judge made no error in this respect.

Child Support

[6]

The child support order was based on the shared custody arrangement and
    reflected the fact that the respondent has the children for more than 40% of
    the time.  There is no fixed formula for such a determination and it is a
    matter of judicial discretion to which deference is owed.

[7]

The trial occurred in October 2013.  In the circumstances, there was no
    error in our view in relying on the respondents established 2012 income of
    $109,000 for purposes of this calculation.  In any event, even if the 2013
    figure of $118,000 is taken, the difference is
de minimus
in the
    overall context of the support issues the trial judge had to determine.

[8]

The parties are required under the order to exchange financial
    information annually, and the award may be varied if there is a substantial
    change in circumstances.

[9]

We would not give effect to this ground of appeal.

Net Family Property/Exclusion of Gifts

[10]

The
    trial judge ordered that funds in the amount of $122,762.00 held in the
    respondents investment account were to be excluded from the calculation of his
    net family property on the basis that those funds represented the compilation
    of certain
inter vivos
payments received by the respondent from his
    mother and a bequest received by him from his mothers estate, together with
    the income earned on those amounts.

[11]

The
    trial judge found that these monies were excluded from the respondents net
    family property under s. 4(2) paragraph 1 of the
Family Law Act
R.S.O.
    1990, c. F.3 because they constituted property acquired by the respondent by
    gift or inheritance from a third person after the date of the marriage.

[12]

There
    is no dispute that the monies were deposited first into a joint account in the
    names of the appellant and the respondent, and then transferred to the
    respondents investment account, where they continued to grow for a period of
    about five years before the separation and valuation date.  There is also no
    dispute that the monies in the respondents investment account (with the
    exception of an inconsequential amount) can be traced back to the
inter
    vivos
payments and the respondents inheritance and the income earned
    thereon.

[13]

The
    appellant submits, however:

(a) that the trial judge erred in
    finding that the respondents mother intended the gifts and the inheritance to
    be to the respondent alone and not to the respondent and the appellant
    together; and,

(b) that the monies, once deposited
    into the joint account, lost their character as gifts and an inheritance, and
    therefore that the investment funds into which they were placed were not
    subject to exclusion from net family property.  She did not argue that by
    depositing the monies into the joint account the respondent had gifted her
    one-half of the monies.

[14]

There
    are at least three responses to these submissions.

[15]

First,
    there was ample evidence to support the finding that the respondents mother
    intended the monies to go to him alone (as well as other amounts to his
    siblings) and not to his spouse (or the siblings spouses).  The will was clear
    that the bequest of $30,000, and the income derived from it, were not to fall
    into community property in the event of a breakdown of the marriage.  The
    respondent and each of his siblings received
inter vivos
amounts from
    their mother by way of cheques that were in their names alone.  There was clear
    evidence from the respondent and his brother  accepted by the trial judge
    where it differed from the testimony of the appellant  that the cheques received
    by the respondent were intended by the mother to be a gift to him only.  While
    the appellant argues it makes no sense that certain smaller
inter vivos
gifts made to the respondent were made to him alone  since they were
    apparently made in consideration of the mother living in their home with the
    appellant and the respondent  it was open to the trial judge to conclude on
    the evidence that these payments fell into the same category as the others.

[16]

It
    was for the trial judge to weigh and assess the evidence.  We see no basis for
    interfering with her findings or the inferences she drew on this issue.

[17]

Secondly,
    the trial judge did not err, in fact or in law, in finding that the monies did
    not lose their character as gifts or an inheritance by virtue of their having
    been deposited first into the parties joint account.

[18]

Section
    14 of the
Family Law Act
,  provides that the fact that property is
    held in the name of spouses as joint tenants is proof,
in the absence of
    evidence to the contrary
, that the spouses are intended to own the
    property as joint tenants (emphasis added).  The trial judge reviewed all of
    the relevant evidence and concluded that the respondent had succeeded in
    establishing that there was evidence to the contrary.  To put it another way, she
    accepted the evidence favouring the finding that the respondent had rebutted
    the presumption that the
inter vivos
gift monies and the inheritance
    monies were intended to be owned jointly by the parties simply because the
    respondent had parked them in the joint account prior to transferring them to
    his wholly-owned investment account more than five years before the breakdown
    of the marriage.

[19]

This
    finding was open to her on the evidence.

[20]

Finally
     although this point was not pressed by the respondent  it seems to us that
    paragraph 5 of s. 4(2) of the
Family Law Act
is an answer to the
    appellants argument as well.  It provides for the exclusion from net family
    property of property, other than a matrimonial home, into which property
    referred to in paragraph 1 (i.e., property acquired by gift or inheritance) can
    be traced.  As pointed out earlier, the appellant concedes that the monies in
    the respondents investment account can be traced to the
inter vivos
gifts and the inheritance, albeit that she argued they were made to her and the
    respondent jointly. However, since the trial judge did not accept this argument
    and we would not disturb her finding on this point, the monies in the
    respondents investment account are traceable to the
inter vivos
gifts
    and the inheritance made to him alone.

Costs

[21]

The
    appellant seeks to overturn the costs award made by the trial judge as well.
    We grant leave to appeal and would vary the costs order as set out below, for
    the reasons that follow.

[22]

The
    trial judge awarded costs against the appellant in the total amount of
    $95,498.39 inclusive of disbursements and HST.  Roughly $20,000 of that amount
    represented full recovery costs allowed for the period following the delivery
    by the respondent of an offer to settle on August 9, 2013, approximately two
    months before the trial.

[23]

Central
    to the trial judges conclusions in this regard appears to have been her view
    that the August 2013 Offer was open for acceptance until the commencement of
    the trial and therefore that it was an Offer that met the criteria of r. 18(14)
    of the
Family Law Rules
, O. Reg. 114/99 and that gave rise to the
    costs consequences flowing from that rule.

[24]

Respectfully,
    however, the trial judge was mistaken in this view.  The Offer was not open for
    acceptance until the commencement of trial.  It expired three days before the
    commencement of trial.  Accordingly, it did not meet the r. 18(14) criteria.

[25]

While
    it is true that a trial judge is entitled to give consideration to an offer to settle
    that does not comply with the
Family Law Rules
 see r. 18(16)  the
    trial judge did not approach her disposition as to costs from that perspective,
    and we do not know what her determination would have been had she done so.

[26]

The
    respondent sought costs at trial on a partial indemnity basis in the amount of
    approximately $76,000.  In our view, that is a reasonable amount, having regard
    to the length of the trial (8 ½ days), the conduct of the appellant at trial,
    the findings of the trial judge that the hours spent by respondents counsel
    and the rates charged were reasonable, and all of the other factors taken into
    account by the trial judge in reaching her decision (save for the Offer to
    Settle).

[27]

We
    vary the costs order accordingly.

Disposition

[28]

For
    all of the foregoing reasons, the appeal on the merits is dismissed.  Leave to
    appeal costs is granted and the costs award at trial is varied to the sum of $76,000
    inclusive of disbursements and HST.

[29]

Since
    the respondent was substantially successful, he is entitled to the costs of the
    appeal, which we fix in the amount of $17,500 all inclusive.

R.A. Blair J.A.

C.W. Hourigan J.A.

David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: D.D. v. Children's Aid Society of Toronto, 2015
    ONCA 820

DATE: 20151126

DOCKET: C60836

Laskin, Pardu and Roberts JJ.A.

BETWEEN

D.D

Respondent in Main Action

(Appellant)

and

Childrens Aid Society of Toronto

Applicant in Main Action

(Respondent)

Natasha Razack, for the appellant

Anthony Macri, for the Childrens Aid Society of Toronto

Elizabeth McCarty, for the Office of the Childrens
    Lawyer

Heard: November 24, 2015

On appeal from the judgment of Justice Carolyn J. Horkins
    of the Superior Court of Justice, dated June 30, 2015.

ENDORSEMENT

[1]

D.D. initially sought an order on appeal setting aside an order of Crown
    wardship dated December 17, 2014 and in the alternative sought an order for access
    to her child.

[2]

At the hearing of the appeal, she abandoned her appeal against the Crown
    wardship order, and limited her appeal to the refusal to grant her access.

[3]

This child is now 10 years old and has been in the care of the
    Childrens Aid Society of Toronto since he was six years old. His greatest wish
    now is to be adopted.

[4]

In order that the child may be immediately placed for adoption, we dismiss
    the appeal from the Crown wardship order as abandoned.

[5]

We reserve on the issue of whether there should be an order for access,
    and our decision on access will be released when we have completed our
    deliberations on that issue.

John
    Laskin J.A.

G.
    Pardu J.A.

L.B.
    Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:  Eco-Tec Inc. v. Lu, 2015 ONCA 818

DATE: 20151127

DOCKET: C60540

Hoy A.C.J.O., Gillese and Lauwers

JJ.A.

BETWEEN

Eco-Tec Inc.

Plaintiff (Respondent)

and

George Lu, Golden Maple Leaf (Hangzhou) Financial
    Consulting Co., Ltd. (formerly known as Golden Maple Leaf (Hangzhou) Technology
    Consulting Co. Ltd.), Golden Maple Leaf Technology Corporation, Everrise Group Holdings
    Ltd. and Zhejiang Highnew Environmental Technology Co. Ltd.

Defendants (Appellants)

Rebecca Huang, for the plaintiff (respondent)

D. Lynne Watt, for the defendants (appellants)

Heard:  November 16, 2015

On appeal from the order of Justice Jane Ferguson of the Superior
    Court of Justice, dated April 29, 2015.

Hoy A.C.J.O.:

[1]

The appellants  Dr. Lu, three Chinese corporations and a corporation
    incorporated in the British Virgin Islands (BVI)  unsuccessfully moved to
    stay the action commenced against them in the Superior Court of Justice of
    Ontario by the respondent, Eco-Tec Inc. They asserted that the Ontario court
    does not have jurisdiction over the matter or, if it does, it should decline to
    assume jurisdiction because Ontario is not the most convenient forum for the
    action.

[2]

They appeal the dismissal of their motion to stay. For the reasons that
    follow, I would dismiss the appeal.

Background

[3]

The respondent is an Ontario company that researched, developed and
    manufactured proprietary technology and products. For twelve years, Dr. Lu, who
    is a Canadian citizen, his BVI company, and three Chinese companies owned by
    Dr. Lu or his parents were the respondents consultant, agent or distributor in
    China. They signed a series of confidentiality agreements and business
    agreements with the respondent between 2000 and 2008. Confidentiality
    agreements signed in 2001 and 2003 contained provisions stating that the
    agreements would continue to be binding for a period of ten years after their
    termination.

[4]

The respondent terminated its relationship with the appellants in 2012
    when it says it discovered clones of its products made by the Chinese
    companies and a website promoting the cloned products in the global market.

[5]

The respondent brought this action against the appellants in Ontario. It
    alleges that they unlawfully misappropriated its confidential and proprietary
    information for their own benefit and manufactured/supplied products to compete
    with the respondent in China and elsewhere. It sues for breach of confidence,
    breach of contract, breach of fiduciary duty, conspiracy, unjust enrichment
    and/or unlawful interference with its economic interests.

The Motion Judges Decision

[6]

Based on forum selection clauses in certain of the agreements, the
    motion judge found that the Ontario court has consent-based jurisdiction over
    three of the five appellants. In coming to this conclusion, the motion judge
    determined that the respondent was not precluded from relying on those forum
    selection clauses by a Whole Agreement clause contained in a 2008 Distributor
    Agreement between the respondent and Dr. Lus BVI company. That clause provided
    that the 2008 Distributor Agreement superseded all previous agreements. The
    clause also stipulated that it applied to agreements between the respondent and
    one of Dr. Lus Chinese companies.

[7]

The motion judge also found that the Ontario court has jurisdiction
    because the dispute has a real and substantial connection to Ontario. In
    particular, she found that two of the four presumptive connecting factors
    identified in
Club Resorts Ltd. v. Van Breda
, 2012 SCC 17, [2012] 1
    S.C.R. 572, at paras. 90 and 100, as grounding a real and substantial
    connection in a tort case were present. First, all of the agreements between
    the parties were made in Ontario and, second, the alleged tort of
    misappropriation of the respondents proprietary information was committed in
    Ontario.

[8]

In finding that all of the agreements between the parties were made in
    Ontario, the motion judge relied on this courts decision in
Trillium Motor
    World Ltd. v. General Motors of Canada Limited
,
2014 ONCA 497, 120 O.R. (3d) 598. The court held in that
    case, at para. 66, that [w]hen acceptance of a contract is transmitted
    electronically and instantaneously, the contract is usually considered to be
    made in the jurisdiction where the acceptance is received. The motion judge adopted
    this approach, which she termed the traditional approach, and accordingly
    found that all of the agreements between the parties were made in Ontario: they
    were signed in Ontario by the respondent and sent to China where they were
    signed by Dr. Lu and emailed back to the respondent in Ontario.

[9]

The motion judge then considered whether the appellants had met their
    evidentiary burden of establishing that, despite the Ontario court having
    jurisdiction
simpliciter
, China was a more appropriate forum. She
    considered the traditional list of factors considered by courts in Ontario in
    making this determination. She found that two were neutral, four favoured
    Ontario, and one probably favoured China. She concluded that the appellants
    failed to discharge the burden of demonstrating that China was a more appropriate
    forum than Ontario.

Issues on Appeal

[10]

The
    appellants make several arguments relating to jurisdiction:

1.

The motion judge erred in finding that the Whole Agreement clause in the
    2008 Distributor Agreement did not preclude the respondent from relying on forum
    selection clauses in the earlier agreements. They say her finding of
    consent-based jurisdiction over three of the appellants rested on this and
    therefore cannot stand.

2.

In finding that the place of contract presumptive connecting factor
    was established, the motion judge erred by relying on the traditional
    approach to determining the place of contract formation. This case called for
    the broader, more contextual approach to determining the place of contract
    adverted to by this court in
Trillium
.
If that approach were
    applied, the motion judge would not have found that the place of contract was
    Ontario.

3.

Only a relatively minor element of the tort of misappropriation of
    proprietary information may have been committed in Ontario and the motion judge
    therefore erred in finding that the presumptive connecting factor of a tort
    committed in Ontario was established.

[11]

They
    also argue that the motion judge erred in placing the burden on the appellants
    in the
forum non conveniens
analysis. The appellants acknowledge that
    the burden usually falls on the defendant in an action to satisfy the court
    that another forum is more appropriate. However, they rely on this courts
    decision in
BNP Paribas (Canada) v. BCE Inc.
, 2007 ONCA 559, 227
    O.A.C. 102, at paras. 20-21, to argue that, because some of the agreements
    provided for a forum other than Ontario, the burden in the
forum non
    conveniens
analysis in this case is reversed, such that the onus is on the
    respondent to establish that Ontario is the more convenient forum. In any
    event, they say, the relevant factors favour China.

Jurisdiction

[12]

An
    Ontario court can assume jurisdiction if the defendant consents to its
    jurisdiction or is present in Ontario or if it is satisfied there is a real
    and substantial connection to Ontario. In turn, the real and substantial
    connection test is met in a case concerning a tort if any one of the four
    presumptive connecting factors established in
Van Breda

is
    present.

[13]

I
    conclude below that the motion judge correctly found that the place of
    contract presumptive connecting factor was established. It is therefore
    unnecessary for me to consider the appellants other two arguments on the
    question of jurisdiction. Moreover, I am not to be taken as necessarily
    agreeing with the motion judges interpretation of the Whole Agreement clause
    in the 2008 Distributor Agreement. The interrelationship of the various
    agreements signed by the parties and the interpretation and effect of the Whole
    Agreement clause in the 2008 Distributor Agreement are complex issues that are
    ill-suited for resolution at this very preliminary stage of the proceeding.

[14]

I
    turn, then, to the appellants argument regarding the place of the contract,
    arising out of

Trillium
. They argue that
Trillium
,
    properly understood, requires a broader, more contextual analysis in
    determining the place of the contract for purposes of determining whether the
    real and substantial connection test has been met. They say that the motion
    judge failed to conduct such an analysis and that, had she done so, she would
    not have concluded that the contracts were made in Ontario.

[15]

I
    reject this argument. The issue in
Trillium
was whether the general
    rule that a contract transmitted instantaneously is made in the jurisdiction
    where the acceptance is received should apply. The court agreed with the
    motions judge that, in the circumstances of that case, it should not. The offer
    at issue provided that acceptance by the offeree would not be effective until
    further steps were taken by the offeror. The act of acceptance by the offeree
    did not constitute the last act essential to contract formation.

[16]

In
    this case, the appellants point to nothing in the agreements indicating that
    acceptance would not be the last act essential to contract formation. The
    motion judge correctly applied the general rule that a contract transmitted
    instantaneously is made in the jurisdiction where the acceptance is received.

[17]

Trillium
does not require a broader, more contextual analysis when assessing the place
    of the contract for purposes of a jurisdictional determination. At para. 70,
    Lauwers J.A., writing for the court, questioned whether the traditional rules
    for determining the place of the contract should be determinative in applying
    the presumptive connecting factor at issue. However, he wrote that, [t]his is
    perhaps an issue for another case.  As he explained, such an analysis would
    inevitably engage the same considerations as the real and substantial
    connection test itself. He observed that there were contextual factors present
    in that case that supported the motion judges conclusion that the contracts in
    question were Ontario contracts.

[18]

While
    this court has not required a broader, more contextual analysis, here, too,
    there are contextual factors that support the conclusion that the contracts at
    issue are Ontario contracts. The contracts seek to protect Ontario-based trade secrets
    and other confidential information and authorized the appellants to distribute
    products incorporating that Ontario-based proprietary information.

[19]

A
    presumptive connecting factor has been established and the appellants have not
    demonstrated the absence of a real and substantial connection. The motion judge
    correctly concluded that it was open to the Ontario court to assume
    jurisdiction.

Forum Non Conveniens

[20]

As
    I explain below, I also reject the appellants argument that the burden was on
    the respondent to establish that Ontario is a more convenient and appropriate
    forum to hear the dispute than China. The motion judge did not err in
    proceeding on the basis that the onus was on the appellants and her decision is
    entitled to deference. However, even if the burden were on the respondent, I am
    satisfied that order and fairness favour trying this action in Ontario.

[21]

In
BNP Paribas
, there was a dispute as to whether a clause in a lending
    agreement granting exclusive jurisdiction over any disputes to courts in the
    State of New York or in the Province of Quebec applied. Rosenberg J.A., writing
    for the court, accepted, at para. 20 that, if it did, the principle from
Z.I.
    Pompey Industrie v. ECU-Line N.V.
,
[2003] 1 S.C.R. 450 would apply: where a forum selection clause is present, the
    starting point is that the parties should be held to their bargain and the
    plaintiff has the burden of showing why a stay should not be granted. But, he
    concluded, at para. 22, even if that principle applied and the trial judge
    erred by failing to require the plaintiff to establish that there was good
    cause that the action should not be stayed, the error was of no consequence. The
    trial judges reasons showed that order and fairness overwhelmingly favoured
    Ontario as the place for the trial.

[22]

This
    case is different from
BNP Paribas
.
Here, there are multiple
    agreements and multiple parties. Some agreements provide that Ontario is the
    forum for resolution of any disputes between the parties. As the appellants
    submit, the respondent and the BVI company attorned to the jurisdiction of the
    Peoples Republic of China in the 2008 Distributor Agreement. However, more
    importantly, given the nature of the respondents claim, the respondent and the
    BVI company attorned to the jurisdiction of the BVI in the Joint
    Confidentiality Agreement signed in 2008. It is not at all clear that holding
    the parties to their bargain would result in the action being tried in China.

[23]

In
    these circumstances, the motion judge did not err in principle in concluding
    that the normal rule as to onus should apply. Because jurisdiction was
    established, the burden rested on the appellants to demonstrate that the
    proposed court of alternative jurisdiction  China  was a more appropriate
    forum than Ontario:
Van Breda
, at paras. 103, 108-109.

[24]

The
    appellants also argue that the motion judge made several errors in determining
    that they had not established that China is the more appropriate forum.

[25]

Specifically,
    they say that the motion judge did not explain why she found one factor (the
    jurisdiction in which the factual matters arose or other geographical factors
    suggesting the natural forum) favoured Ontario. They argue that she should have
    characterized another factor (the applicable law and its weight in comparison
    to the factual questions to be decided) as neutral and not as favouring
    Ontario. Finally, they argue that the motion judge erred in concluding that
    declining jurisdiction would deprive the respondent of a legitimate juridical
    advantage available in an Ontario court.

[26]

In
    my view, the appellants seek to re-argue the issue of
forum non conveniens
.
    In concluding that the appellants had not discharged their onus of establishing
    that China was a more appropriate forum for the resolution of this dispute, the
    motion judge applied the correct test and considered the relevant factors. She
    did not err in law or principle and the appellants identify no clear and
    serious factual error. Her allocation of weight among the relevant factors
    cannot be said to be unreasonable. Her decision is entitled to deference:
2249659
    Ontario Ltd. v. Sparkasse Siegen
, 2013 ONCA 354, 115 O.R. (3d) 241, at
    para. 49.

[27]

However,
    given the argument that the appellants have made regarding onus, I add that I
    am satisfied that, if the respondent bore the onus of establishing that Ontario
    is the more appropriate forum, it has discharged that onus. The motion judge
    explained why she concluded that declining jurisdiction would deprive the
    respondent of a juridical advantage. There is an additional, significant
    advantage that she did not advert to. Breach of fiduciary duty is an important
    aspect of the respondents claim. The appellants own witness testified that
    China does not recognize breach of fiduciary duty as a cause of action. It is
    difficult to understand how China could be the more appropriate forum when it
    does not recognize a significant cause of action that has been pleaded. This
    court has recognized that, although a forum selection clause in a commercial
    contract should be given effect, there are circumstances that may justify a
    departure from that general principle, including where the forum selected is
    unable to deal with the claim:
Momentous.ca Corp. v. Canadian American
    Association of Professional Baseball Ltd.
,
2010 ONCA 722, 103 O.R.
    (3d) 467, at para. 41.

Disposition and Costs

[28]

I
    would dismiss the appeal. I would award the respondent its costs of the appeal,
    fixed in the amount of $15,000, inclusive of HST and disbursements.

Released:  AH  NOV 27 2015

Alexandra Hoy
    A.C.J.O.

I agree E.E. Gillese
    J.A.

I agree P. Lauwers
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Evans Sweeny
    Bordin LLP v. Zawadzki, 2015 ONCA 756

DATE: 20151109

DOCKET: C60119

Gillese, Lauwers and Brown JJ.A.

BETWEEN

Evans Sweeny Bordin LLP

Respondents

and

Joseph Zawadzki, Frenchmen's Creek Estates Inc.
    and 550075 Ontario Inc.

Appellants

William L. Roland, for the appellants

Michael Bordin, for the respondents

Heard: October 20, 2015

On appeal from the order of Justice James A. Ramsay of
    the Superior Court of Justice, dated February 6, 2015, with reasons reported at
    2015 ONSC 869.

Brown J.A.:

I.

OVERVIEW

[1]

This appeal involves the enforceability of a
    contingency fee agreement entered into between the appellants, the owners and
    developers of lands in Fort Erie worth about $20 million, and the respondent
    solicitors. Under the agreement, the appellants agreed to pay the respondents a
    bonus of $500,000 in the event their appeal from a final order of foreclosure over
    their lands was granted. Their appeal was granted, and the respondents rendered
    an account for the bonus. The appellants obtained an order to assess that and
    two other accounts before an assessment officer.

[2]

The assessment officer held that the contingency
    fee agreement was not fair or reasonable. On competing motions to oppose
    confirmation of the assessment officers report, the motions judge held that
    the assessment officer lacked the jurisdiction to consider the fairness and
    reasonableness of the contingency fee agreement. He also held that the agreement
    was fair and reasonable.

[3]

The appellants appeal from that order. They seek
    to restore the decision of the assessment officer or, alternatively, an order
    directing the assessment of the contingency fee agreement before a judge of the
    Superior Court of Justice.

[4]

I would dismiss the appeal. The motions judge
    correctly found that the assessment officer lacked jurisdiction to consider the
    fairness and reasonableness of the contingency fee agreement. The record before
    the motions judge enabled him to assess fairly the agreement, and there is no
    basis for appellate intervention in his conclusion that the agreement was fair
    and reasonable.

II.

FACTS

[5]

Joseph Zawadzki is the principal of Frenchmens
    Creek Estates Inc. and 550075 Ontario Inc. Those corporate appellants owned
    vacant development lands in Fort Erie which were subject to two mortgages. They
    defaulted on the mortgages. A settlement was reached under which the appellants
    consented to foreclosure in the event they did not perform the terms of the
    settlement. In 2006, the mortgagee obtained
ex parte
final orders of
    foreclosure against the properties. The appellants applied for relief from foreclosure.
    By judgment dated March 14, 2007, Lofchik J. dismissed their application (the
    Judgment).

[6]

The appellants thereupon retained the respondent
    solicitors, Evans Sweeny Bordin LLP, to appeal the Judgment. In a May 8, 2007
    letter to Zawadzki, the respondents estimated that the costs of the appeal
    would be around $35,000.

[7]

In June 2007, Zawadzki raised the prospect of
    paying the respondents a bonus of $500,000 in the event the appellants were
    able to sell the properties. Negotiations ensued, including the exchange of
    draft contingency fee agreements. In the result, the parties entered into an
    October 17, 2007 Contingency Fee Retainer Agreement (the Agreement) governing
    the appellants retainer of the respondents to represent them in an appeal of
    the Judgment.

[8]

Under the Agreement, the appellants agreed to
    pay the respondents the full sum of all legal fees and all disbursements
    incurred by the Law Firm. The Agreement went on to provide for the additional
    payment of a bonus to the respondents, setting out how to calculate the bonus
    in the event the appeal was granted or in the event the appeal was settled. Section
    5 of the Agreement provided that, In the event that the appeal is granted, the
    Law Firm shall be paid $500,000The above amounts shall be due and payable to
    the Law Firm within 60 days of the granting of the appeal.

[9]

The appeal was granted by order of this court
    dated February 6, 2008. The respondents rendered an August 7, 2008 account to
    the appellants for $700,307.96, which included the $500,000 bonus.

[10]

Subsequent proceedings ensued between mortgagor
    and mortgagee that ultimately resulted in a July 2008 judgment discharging the
    two mortgages from title, the appeal from which this court dismissed in January
    2009. On July 9, 2009, the respondents delivered two further accounts to the
    appellants for the additional work performed in the amounts of $96,524.42 and $15,711.53.

[11]

On August 11, 2009, Zawadzki obtained an order
    for assessment. As a result of an inquiry from the assessment officer, the
    parties obtained, on consent, an amended assessment order dated December 14, 2010
    (the Assessment Order), which included the corporate appellants as client
    parties and identified the three bills as the subject matter of the
    assessment.

[12]

A 10-day assessment hearing was held in late
    2011 and early 2012. Some 17 months following the completion of the hearing,
    the assessment officer released reasons dated September 27, 2013. He released
    supplementary reasons on costs together with his Report and Certificate (the
    Report) on December 10, 2013. The assessment officer assessed the respondents
    bills for time and disbursements at $268,354.13  a reduction of $44,179.78
    from the invoiced amount of $312,533.91  and disallowed the respondents
    billing of the bonus on the basis that the bonus, as it was imposed on the
    Clients and as it was applied in the bill, is neither fair nor reasonable, in
    all or in part.

[13]

Both parties moved to oppose confirmation of the
    Report: the appellants sought a further reduction of the invoiced amounts; the
    respondents did not object to the fee reduction, but sought payment of the
    $500,000 bonus.

[14]

By order dated February 6, 2015, the motions
    judge dismissed the appellants motion to reduce the amount payable, granted
    the respondents claim to a bonus of $500,000, and varied the Report
    accordingly. In reaching that result, the motions judge made two main findings:
    (i) the assessment officer lacked the jurisdiction to consider the fairness and
    reasonableness of the Agreement; and, (ii) even if the assessment officer had
    possessed such jurisdiction, the motions judge would have set aside the assessment
    officers conclusion that the Agreement was not fair and reasonable.

III.

ISSUES ON APPEAL

[15]

The appellants appeal the order of the motions
    judge, seeking to set it aside and reinstate the Report. Alternatively, they seek
    an order directing a trial of an issue as to whether the Agreement is fair and
    reasonable in all the circumstances. The appellants raise two main grounds of
    appeal. They submit that:

(i)

the motions judge erred in holding the assessment
    officer had no jurisdiction to consider the enforceability of the Agreement. They
    argue that the respondents raised no objection to his jurisdiction prior to the
    issuance of the Report, and the respondents therefore condoned and acquiesced
    by their conduct in the jurisdiction of the assessment officer; and

(ii)

the motions judge erred in holding that the
    Agreement was fair and reasonable because he failed to give proper deference to
    the findings of fact made by the assessment officer and lacked an adequate
    record to make such a determination.

IV.

THE JURISDICTION OF THE ASSESSMENT OFFICER

[16]

A contingency fee agreement is enforceable only
    if it is both fair and reasonable:
Henricks-Hunter (Litigation
    Guardian of) v. 814888 Ontario Inc.
, 2012 ONCA 496,
294
    O.A.C. 333,
at para. 13.

[17]

In
Cookish v. Paul Lee Associates
    Professional Corporation
, 2013 ONCA 278,
305 O.A.C. 359, this court
    considered the jurisdiction of assessment officers (who are not masters) to
    consider issues concerning contingency fee agreements.  This court held, at
    paras. 39 and 43, that
issues involving the enforceability of
    contingency fee agreements, including whether they are fair and reasonable,
    should be resolved by judges.  The
Solicitors Act
,
R.S.O. 1990, c. S.15, does not authorize assessment
    officers to consider such issues: at para. 43.  Although a judge can refer issues
    to an assessment officer for determination pursuant to the reference procedure
    in rule 54 of the
Rules of Civil Procedure
, a
    judge should not refer issues concerning the enforceability of a contingency
    fee agreement; at most, a judge may refer to an assessment officer the
    calculation of the quantum of a contingency fee under a valid contingency fee
    agreement: at paras. 44 and 47.  Where a judge orders a reference to an
    assessment officer, the assessment order must contain clear language of
    delegation  language
that simply refers a bill to an
    assessment officer for assessment is insufficient to vest in the assessment
    officer jurisdiction to determine disputes arising under a contingency fee agreement:
    at paras. 51, 53 and 54.

[18]

In the present case, the Assessment Order did
    not refer to the assessment officer any questions about enforceability of the
    Agreement. Applying the decision in
Cookish
,
    the motions judge understandably held that the assessment officer lacked the
    jurisdiction to decide whether the Agreement was fair and reasonable because
    the Assessment Order had not referred to him any issue concerning the enforceability
    of the Agreement.

[19]

The appellants submit that the motions judge
    should not have applied
Cookish
in the
    circumstances of this case because the respondents were estopped from relying
    on
Cookish
to oppose confirmation of the Report. The assessment
    hearing concluded in April 2012.
Cookish
was released in April 2013. The
    assessment officer released his reasons in September 2013 and his Report in
    December 2013. The respondents did not raise any issue about the assessment
    officers jurisdiction in the period after the release of
Cookish,
but
    before the release of the Report. In those circumstances, the appellants argue,
    the motions judge erred in applying the principle in
Cookish
. Instead,
    they contend, he should have followed the decision in
Price v. Sonsini
(2002), 60 O.R. (3d) 257 (C.A.) where this court held, at para. 17, that the
    solicitors failure to make a timely objection to the assessment procedure used
    to obtain the order for assessment was fatal to his opposition to the assessment
    officers report.

[20]

I do not accept that submission. An assessment
    officer either has jurisdiction or he does not. It is unfortunate that neither the
    parties nor the assessment officer were aware of the
Cookish
decision before the Report was released.  Nevertheless, the motions
    judge correctly applied the principles in
Cookish
to conclude that the
    assessment officer lacked jurisdiction to consider the enforceability of the
    Agreement.

[21]

Moreover, the decision in
Price
is
    distinguishable. In that case, this court held that the assessment officer had
    jurisdiction on the basis that s. 3 of the
Solicitors Act
permits a
    client to move for an assessment of an interim account within one month of
    delivery of the final account. The motions judge correctly held that the facts
    in
Price
differed from those in the present case when he stated, at
    para. 14:

[In
Price
], it was a question of the
    procedure by which the assessment officer did that which was clearly within his
    jurisdiction. Here the assessment officer did something that is not within his
    jurisdiction.

[22]

Accordingly, the motions judge did not err in
    concluding that the assessment officer lacked jurisdiction to consider the
    enforceability of the Agreement.

V.

THE FAIRNESS AND REASONABLENESS OF THE AGREEMENT

[23]

As an alternative argument, the appellants
    submit that if the assessment officer lacked jurisdiction to consider the
    fairness and reasonableness of the Agreement, then the motions judge should not
    have engaged in his own consideration of the Agreement on the motions to oppose
    confirmation because he lacked an adequate record to determine its fairness and
    reasonableness. Instead, he should have referred the issue of the fairness and
    reasonableness of the Agreement to another judge of the Superior Court of
    Justice for an assessment hearing. The appellants further submit that in
    considering the Agreement, the motions judge failed to give proper deference to
    the findings of fact made by the assessment officer.

[24]

In deciding the competing motions to oppose confirmation
    of the Report, the motions judge was entitled to consider the fairness and reasonableness
    of the Agreement. Rule 54.09(5) of the
Rules of Civil Procedure
provides that a judge hearing a motion to oppose confirmation of a report may
    confirm the report in whole or in part or make such other order as is just. If
    a judge hearing a motion to oppose finds that an assessment officer committed
    an error in principle, the judge may either correct the error or refer the
    matter back for correction:
Bales Beall LLP v. Fingrut
, 2012 ONSC
    4991,
356 D.L.R. (4th) 103
at para. 7, affirmed 2013 ONCA
    266. Having concluded that the assessment officer lacked the jurisdiction to
    consider the fairness and reasonableness of the Agreement, the motions judge
    possessed the jurisdiction to consider that issue.

[25]

That said, should the motions judge have exercised
    his jurisdiction to consider the enforceability of the Agreement in the
    circumstances of this case? The answer to that question turns on whether the
    record before the motions judge was adequate to conduct a consideration of the
    Agreement that was fair to both parties. I conclude that it was, for several
    reasons.

[26]

First, the appellants knew that the issue of the
    fairness and reasonableness of the Agreement would be argued before the motions
    judge because the respondents, in their cross-motion to oppose confirmation,
    specifically sought an order that they were entitled to be paid the $500,000
    bonus under the Agreement.

[27]

Second, although the parties did not place
    before the motions judge the entirety of the record created before the assessment
    officer, they agreed that it was open to each party to file whatever part of
    the evidence it considered relevant. As a result, the motions judge was able to
    review all the pertinent documentation concerning the negotiation and execution
    of the Agreement.

[28]

The appellants submit that the motions judge
    lacked an adequate evidentiary record because the transcripts of the assessment
    hearing were not before him. Given that the respondents had put the appellants
    on notice that they intended to argue before the motions judge the fairness and
    reasonableness of the Agreement, it was open to the appellants to include some
    or all of the transcripts of the assessment hearing in their motion record. They
    chose not to do so. Consequently, it is not now open to the appellants to complain
    about the absence of the transcripts.

[29]

In my view, the record before the motions judge
    was adequate to determine the fairness and reasonableness of the Agreement.

[30]

The appellants next submit that the motions
    judge failed to accord proper deference to the findings of fact made by the assessment
    officer about the circumstances that gave rise to the Agreement. The assessment
    hearing considered two issues: the enforceability of the Agreement and the
    reasonableness of the amounts billed by the respondents in the three accounts
    on a time and disbursements basis. The assessment officer made findings of fact
    on both issues. However, given that the assessment officer lacked the
    jurisdiction to consider the fairness and reasonableness of the Agreement, his
    findings of fact on that issue were not entitled to any deference by the motions
    judge. Nevertheless, the motions judge extensively canvassed the key findings made
    by the assessment officer, and he gave detailed reasons why the assessment
    officers criticisms of the solicitors work were the product of palpable and
    overriding errors of fact: paras. 24 to 33.

[31]

The motions judge considered the fairness of the
    Agreement as of the date it was entered into:
Henricks-Hunter
, at para. 13. Based on his review of the documents recording the
    negotiation of the Agreement between the parties, the Agreement itself, and the
    broader factual matrix, the motions judge concluded, at para. 23:

The evidence showed negotiations involving
    different positions by the parties, and a final, signed agreement that
    contained a compromise. There is no question that Mr Zawadzki is a
    sophisticated businessman. On the evidence, including the factual matrix, the
    written contract must be what the parties agreed to. They did not agree to the
    negotiating positions of the parties. The assessment officer erred by making
    the contract something he thought it should be, instead of deciding what the
    parties agreed to.

I see no error in that conclusion.

[32]

The motions judge also properly informed himself
    about the factors relevant to determining the reasonableness of the Agreement
    as of the date of the assessment hearing:
Henricks-Hunter
, at para. 13. He reviewed them in detail: paras. 25 to 34. In the
    circumstances of the case, he placed the greatest weight on the value of the
    property in question  $20 million  and the risk of the solicitors not getting
    paid. In so doing, the motions judge did not commit an error of law,
    misapprehend the evidence, or make a palpable and overriding error on a factual
    matter which would justify appellate intervention:
Rabbani v. Niagara
    (Regional Municipality)
, 2012 ONCA 280,
2 M.P.L.R. (5th) 23,
at para. 6.

[33]

Nor was his allowance of the $500,000 bonus so
    unreasonable as to constitute an error in principle. When the appellants first
    approached the respondents, they were on the brink of losing their lands worth
    $20 million because they were subject to a final foreclosure order. As a result
    of the respondents success on the appeal and further motions, the appellants
    re-gained their lands free and clear of the two mortgages. Under those
    circumstances, a bonus equivalent to 2.5% of the value of the property in issue
    was not unreasonable.

VI.

DISPOSITION

[34]

For those reasons, I would dismiss the appeal.

[35]

The parties agreed on costs of the appeal of
    $11,000, inclusive of disbursements and H.S.T. I would order the appellants to
    pay the respondents costs in that amount.

Released: November 9, 2015 (EEG)

David
    Brown J.A.

I
    agree E.E. Gillese J.A.

I
    agree P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Fanshawe College of Applied Arts and Technology v. AU Optronics Corporation, 2015 ONCA 808

DATE: 20151124

DOCKET: M45288 (C60370)

Cronk, Hourigan and Benotto JJ.A.

BETWEEN

The Fanshawe College of Applied Arts and
    Technology

Moving Party

(Respondent)

and

AU Optronics Corporation, Chi Mei
    Corporation, Chi Mei Optoelectronics Corporation,
    Nexgen Mediatech Inc., and
HannStar Display
    Corporation

Responding Party

(Appellant)

Paul Bates and Kerry McGladdery Dent, for the moving
    party

John Callaghan and Alex Zavaglia, for the responding
    party

Heard: September 21, 2015

On motion to quash the appeal pending in court file numbered C60370.

ENDORSEMENT

[1]

In the particular circumstances of this case, the moving party concedes
    that nothing in the order sought to be appealed, or in the reasons of the
    motion judge in support of that order, precludes the respondents on appeal in
    any way from advancing at trial their arguments regarding s. 36(4) of the
Competition
    Act
or abuse of process as substantive defences or otherwise.   The moving
    party having thus agreed that it will not advance an argument of
res
    judicata
in respect of either issue, this appeal is quashed on the basis
    of the moving partys concession that the order below is interlocutory, rather
    than final, in nature.

[2]

We appreciate the responding partys argument that there is an apparent
    conflict in certain of this courts jurisprudence on the issue whether an order
    dismissing a motion for summary judgment is a final or interlocutory order.  It
    may well be that clarification of this issue by the Civil Rules Committee would
    advance the interests of the administration of justice.

[3]

The moving party is entitled to its costs of this motion, fixed in the
    total amount of $2,500, inclusive of disbursements and all applicable taxes.

E.A. Cronk J.A.

C.W. Hourigan J.A.

M.L. Benotto J.A.