COURT OF APPEAL FOR ONTARIO

CITATION: Fram Elgin Mills 90 Inc. v. Romandale
  Farms Limited, 2021 ONCA 381

DATE: 20210602

DOCKET: C67533 and
C67557

Gillese, Lauwers and
    Benotto JJ.A.

DOCKET: C67533

BETWEEN

Fram Elgin Mills 90
  Inc. (formerly Frambordeaux
  Developments Inc.)

Plaintiff

and

Romandale Farms
  Limited
, Jeffrey Kerbel, 2001251 Ontario Inc.
  and First Elgin Developments Inc.
Defendants
(
Respondent
/Appellants)
AND BETWEEN
Fram 405 Construction
    Ltd. and Bordeaux Homes Inc.
Plaintiffs
and

Romandale Farms
  Limited
, 2001251 Ontario Inc., First Elgin Developments Inc. and
  Jeffrey Kerbel
Defendants
(
Respondent
/Appellants)
AND BETWEEN
Romandale Farms Limited
Plaintiff (Respondent)
and
2001251 Ontario Inc.
Defendant
  (Appellant)
AND BETWEEN
2001251 Ontario Inc.
Plaintiff (Appellant)
and
Romandale Farms Limited
Defendant
  (Respondent)
DOCKET: C67557
BETWEEN

Fram Elgin Mills 90
  Inc. (formerly Frambordeaux
    Developments Inc.)
Plaintiff (Appellant)
and

Romandale Farms
  Limited
, Jeffrey Kerbel,2001251 Ontario Inc.
  and First Elgin Developments Inc.
Defendants (
Respondent
)

AND BETWEEN

Fram 405
  Construction Ltd.
and Bordeaux Homes Inc.
Plaintiffs (
Appellant
)
and

First Elgin
    Developments Inc. and Jeffrey Kerbel
Defendants (
Respondent
)
AND BETWEEN
Romandale Farms Limited
Plaintiff
and
2001251 Ontario Inc.
Defendant
AND BETWEEN
2001251 Ontario Inc.
Plaintiff
and
Romandale Farms Limited
Defendant
Chris G. Paliare and Tina H. Lie, for the appellants
    Jeffrey Kerbel, 2001251 Ontario Inc., and First Elgin Developments Inc.
    (C67533)
Sheila R. Block, Jeremy Opolsky, Sara J. Erskine, and
    Benjamin Lerer for the appellants Fram Elgin Mills 90 Inc. (formerly
    Frambordeaux Developments Inc.) and Fram 405 Construction Inc. (C67557)
Sarit E. Batner, Kosta Kalogiros, and Avi Bourassa, for
    the respondent Romandale Farms Limited (C67533 and C67557)
Heard: September 8 and 9, 2020 by video conference
On appeal from the judgment of
    Justice Nancy J. Spies, of the Superior Court of Justice, dated September 13,
    2019, with reasons reported at 2019 ONSC 5322, and from the costs order, dated
    April 2, 2020.
COSTS ENDORSEMENT
[1]

Four actions involving the Lands in this proceeding were tried together
    in the fall of 2018 (the Actions). Romandale was awarded costs of the Actions,
    on a substantial indemnity basis, in the amount of $2,708,651.57. Those costs were
    made payable on a joint and several basis by Fram and Kerbel.
[2]

Fram and Kerbel each appealed to this court. Their appeals were consolidated
    (the Appeals). The Appeals were successful. The parties agreed on costs of
    the Appeals but were unable to resolve the matter of costs below. This costs
    endorsement decides that matter.
[3]

For the reasons that follow, Fram and Kerbel are entitled to partial
    indemnity costs for the Actions, in the amounts that each sought.
The Parties Positions
Fram
[4]

Fram seeks partial indemnity costs of $1,147,595.63 for the Actions. It
    did not succeed on its 2007 and 2008 Actions and did not appeal the trial decisions
    on them. Nonetheless, Fram argues, as a result of the Appeals, it has achieved overall
    success and is entitled to its costs of the Actions.
[5]

Fram also relies on having beat the offer to settle the litigation which
    it and Kerbel jointly made in September 2018 (the Settlement Offer), just
    before the trial of the Actions. Romandale rejected their Settlement Offer. At
    the oral hearing of the Appeals, the parties each stated that entitlement to
    costs of the Actions was on a partial indemnity basis. Accordingly, Fram did
    not advance a claim for enhanced costs under r. 49.10 of the
Rules of Civil
    Procedure
,
R.R.O. 1990, Reg. 194.
[6]

Finally, Fram contends that its costs are fair and reasonable.
Kerbel
[7]

Kerbel seeks partial indemnity costs of $956,002.50 for the Actions. It
    says those costs are fair and reasonable and reflect its overall success. Kerbel
    contends that the Actions, although not formally consolidated, were effectively
    consolidated with the evidence being used, and argument permitted, on all
    issues by all parties. Moreover, it points out that Romandale sought  and was
    awarded  costs of the Actions against Kerbel and Fram on a joint and several
    basis.
[8]

Like Fram, Kerbel also relies on the fact that it beat the Settlement Offer.
Romandale
[9]

Romandale accepts that Fram and Kerbel are entitled to their partial
    indemnity costs of the 2014 and 2016 Actions in which Kerbel claimed specific
    performance of the 2005 August Agreement. However, it submits that neither Fram
    nor Kerbel are entitled to costs of the 2007 and 2008 Actions which Fram
    unsuccessfully prosecuted against Romandale. As Fram did not appeal the results
    of those actions, Romandales success on those actions stands. Thus, Romandale
    submits, Fram should pay Romandale its partial indemnity costs of the 2007 and 2008
    Actions and Kerbel is not entitled to its partial indemnity costs relating to
    those Actions.
Analysis
[10]

Costs
    are not to be determined by considering success on an issue by issue basis.
    Rather, they are to be based on the overall success achieved by a party:
Wesbell
    Networks Inc. v. Bell Canada
, 2015 ONCA 33, at para. 21. In the
    circumstances of these Appeals, the same principle applies: costs of the Actions
    are to be determined by considering the overall success achieved by the parties
    as a result of the Appeals.
[11]

The
    Actions were tried together to ensure that the rights and interests of the
    parties, in the Lands, were properly determined. The Appeals determined those
    respective rights and interests with the result that Fram and Kerbel achieved
    overall success. The fact that Fram was unsuccessful on the 2007 and 2008
    Actions does not detract from its overall success. Moreover, the Actions were
    intertwined. As the reasons of this court demonstrate, the evidence relating to
    the 2007 and 2008 Actions was directly relevant to the disposition of the
    Appeals. The fact that costs below were awarded jointly and severally as
    against Fram and Kerbel, in accordance with Romandales request, is telling in
    this regard. Had the Actions been severable, as Romandale now maintains, costs
    of the 2007 and 2008 Actions would have been payable by Fram alone. Instead,
    Fram and Kerbel were held jointly and severally responsible for costs of all of
    the Actions.
[12]

Further
    and importantly, Fram and Kerbel achieved greater success on the Appeals than
    their Settlement Offer, which Romandale rejected.
[13]

We
    are satisfied that Fram and Kerbels partial indemnity costs are reasonable.
    This can be seen by comparing them to Romandales partial indemnity costs of $2,283,089.26
    for the Actions. As well, the amounts claimed and recovered were significant.
    The market value of the Lands in 2018 was $50,000,000. Finally, the matters in
    issue were complex, numerous, and very important to all the parties.
Disposition
[14]

Accordingly,
    Fram and Kerbel are entitled to partial indemnity costs of the Actions in the
    amounts that each claimed.
E.E. Gillese J.A.
P. Lauwers J.A.
M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Fresco v. Canadian Imperial Bank
    of Commerce, 2021 ONCA 46

DATE: 20210126

DOCKET: M51965 (C68801) & M51968 (C68649)

Doherty, Zarnett and Coroza
    JJ.A.

BETWEEN

Dara Fresco

Plaintiff

(Respondent/Moving Party)

and

Canadian Imperial Bank of
    Commerce

Defendant

(Appellant/Responding Party)

Louis Sokolov, Jody Brown and David
    OConnor, for the moving party

Linda M. Plumpton, Sarah Whitmore and
    John C. Field, for the responding party

Heard: January 4, 2021 by video conference

Zarnett J.A.

A.

Introduction

[1]

The respondent, Dara Fresco (Ms. Fresco), is the
    representative plaintiff in a class action against the appellant, Canadian
    Imperial Bank of Commerce (the Bank). She moves to quash two aspects of the
    appeals brought by the Bank from the judgment of Belobaba J. (the motions judge),
    made in the context of his disposition of common issues in the action.

[2]

Specifically, Ms. Fresco argues that although
    other aspects of the motions judges judgment are properly appealable to this
    court, those dealing with the effect of limitation periods and aggregate damages
    may only be appealed to the Divisional Court, with leave.

[3]

For the reasons that follow, I would dismiss the
    motions to quash. In my view, the limitations and aggregate damages aspects of
    the motions judges judgment were all part of his judgment on the common issues.
    This court has jurisdiction under s. 30(3) of the
Class Proceedings Act, 1992
,
    S.O. 1992, c. 6 (the
CPA
), over appeals from a judgment on the
    common issues, and thus over these aspects of the appeals.

B.

The context

(1)

The Action, Its Certification, and the Common
    Issues

[4]

The class represented by Ms. Fresco is comprised
    of approximately 31,000 current and former Bank employees. The action concerns class
    members rights to compensation for overtime worked in the period from 1993 to
    2009.

[5]

Although certification was originally refused by
    the Superior Court and the Divisional Court, upon further appeal to this court,
    the action was ultimately certified as a class proceeding in 2012:
Fresco
    v. Canadian Imperial Bank of Commerce
, 2012 ONCA 444, 293 O.A.C. 248.

[6]

When this court made the certification order, it
    articulated (i.e. certified) eight common issues for determination. Broadly
    speaking, common issues 1 to 5 asked whether the Bank breached a contractual or
    other duty by allowing or encouraging class members to work overtime, not
    properly recording their time, and not ensuring they were properly compensated
    for overtime worked. Common issue 6 asked whether the elements of unjust
    enrichment were established in favour of class members. If the answers to any
    of common issues 1 to 6 were yes, common issue 7 asked what remedies class
    members were entitled to, and common issue 8 asked whether the class was
    entitled to an award of aggravated, exemplary or punitive damages.

[7]

This court did not certify a separate common
    issue about the effect of limitation periods, stating: [t]he issue of
    limitation periods is not an ingredient of the class members claims, but
    instead may be relied on by [the Bank] in its defence: at para. 108.

[8]

As well, this court refused to certify a common
    issue concerning an aggregate assessment of damages, stating that for the
    reasons in
Fulawka v. Bank of Nova Scotia,
2012 ONCA 443
, 111 O.R. (3d) 346, leave to appeal refused
    [2012] S.C.C.A. No. 326, the preconditions in s. 24(1) of the
CPA
for
    ordering an aggregate assessment of monetary relief cannot be satisfied in this
    case: at para. 109.

(2)

The Motions Judges Judgment

[9]

The parties each moved for summary judgment on
    the common issues and for related relief. The motions judge held three hearings
    and issued three sets of reasons.

[10]

In his first set of reasons, the motions judge
    addressed the disposition of common issues 1 through 5, which he denominated
    the liability issues. He found in favour of the plaintiff class on all five
    issues
: Fresco v. Canadian Imperial Bank of Commerce
, 2020 ONSC 75.

[11]

In his second set of reasons, the motions judge
    found in favour of the plaintiff class on issue 6 (unjust enrichment) and on
    issue 7 (remedies), finding that class members are entitled to certain
    declarations as well as to damages. He found against the plaintiff class on
    common issue 8, finding no entitlement to aggravated, exemplary or punitive
    damages. He also certified an additional common issueCan the defendants monetary
    liability be determined on an aggregate basis? If so, in what amount?and
    deferred an answer to that additional issue until a further hearing following
    an exchange of expert reports. He rejected the Banks argument that this
    courts refusal to certify aggregate damages as a common issue, and the
    doctrine of
res judicata
, precluded him from proceeding as he did. He held
    that the decision in
Pro-Sys Consultants Ltd. v. Microsoft Corporation
,
    2013 SCC 57, [2013] 3 S.C.R. 477, gave him that power:
Fresco v. Canadian
    Imperial Bank of Commerce
, 2020 ONSC 4288.

[12]

In his third set of reasons, the motions judge
    rejected the Banks request for a class-wide limitations order barring all
    class members claims before certain dates (2007 in some cases and 2003 in
    others). He held that although the request rested on a plausible procedural
    foundation, as it was advanced as part of the summary judgment motion, the
    banks limitations defence cannot fairly be determined on a class-wide basis
    but, as per the usual practice, should be deferred to the individual hearings
    stage. He also refused to rule on the Banks argument that s. 28 of the
CPA
did not have the effect of suspending the running of limitation periods for
    class members outside of Ontario, as the issue was premature until individual
    hearings were conducted:
Fresco v. Canadian Imperial Bank of Commerce
,
    2020 ONSC 6098, at paras. 9, 22-23, 53 and 57.

[13]

Subsequent to oral argument of these motions to
    quash, counsel provided this court with the formal judgment of the motions
    judge. His answers to the common issues are set out in paragraph 1 and Schedule
    A to the formal judgment, his addition of a common issue regarding aggregate
    damages is set out in paragraph 2, and his rejection of the Banks request for
    a class-wide limitations order is set out in paragraph 3.

(3)

The Appeals

[14]

The Bank has appealed from all of the motions
    judges determinations. Although three notices of appeal were filed (one after
    each set of the motions judges reasons) the appeals have been consolidated and
    will proceed together on all issues subject to the result of this motion.

(4)

The Moving Partys Position

[15]

Ms. Fresco does not dispute that the Bank may
    appeal to this court from the aspects of the judgment that determined common
    issues 1 through 5 (liability), 6 (unjust enrichment), and 7 (remedies), under
    s. 30(3) of the
CPA
.  But she takes the position that the motions
    judges decision to certify an additional common issue concerning aggregate
    damages, and his decision to refuse a class-wide limitations order and to defer
    limitations issues to individual hearings, can only be appealed to the
    Divisional Court with leave.

[16]

With respect to the motions judges
    determination certifying aggregate damages as an additional common issue, Ms.
    Fresco argues that the appeal route is governed by s. 30(2) of the
CPA
[1]
,
in effect at the relevant time, which provided that an
    order certifying a proceeding as a class proceeding may only be appealed to
    the Divisional Court with leave.  If s. 30(2) does not govern, she argues that
    the appeal route is governed by the
Courts of Justice Act
, R.S.O. 1990, c. C.43

(the
CJA
)
.
Under s. 6(1)(b) of the
CJA
, this court only
    has jurisdiction where the order of Superior Court judge sought to be appealed is
    final. Ms. Fresco submits that as no decision to grant or award aggregate
    damages has yet been made, the motions judges determination was interlocutory.

[17]

With respect to the limitations issue, Ms. Fresco
    argues that s. 6(1)(b) of the
CJA
governs the appeal route. Since the
    motions judge simply deferred limitations questions to the individual hearings
    stage, no final order was made, and this court lacks jurisdiction over the
    appeal on that issue.

C.

Analysis

[18]

I do not accept Ms. Frescos arguments.

[19]

Whether
this court has jurisdiction over an appeal from a judgment or order in a
    class proceeding is a two-step analysis. The first question is whether the
    appeal is from a judgment or order covered by s. 30 of the
CPA
, and if so, whether s. 30 directs the
    appeal to this court. If the order is not one covered by s. 30 of the
CPA
, then whether the appeal lies to this court
    is determined by the provisions of the
CJA
. In the latter circumstance, the primary
    determinant is whether the order is final, as opposed to interlocutory:
Bancroft-Snell
    v. Visa Canada Corporation
,
    2019 ONCA 822, 148 O.R. (3d) 139, at para. 16.

[20]

The version of the
CPA
that governs
    this appeal provided, in s. 30(2) and (3), as follows:

(2) A party may appeal to the
    Divisional Court from an order certifying a proceeding as a class proceeding,
    with leave of the Superior Court of Justice as provided in the rules of court.

(3) A party may appeal to the Court
    of Appeal from a judgment on common issues and from an order under section 24,
    other than an order that determines individual claims made by class.

[21]

For efficiency, the motions judge held three
    hearings and issued three sets of reasons addressing a number of issues. But
    this should not obscure the appropriate focus on the question of the proper
    appeal route. The matters that the motions judge dealt with all arose on
    motions for judgment on the common issues. The determinations he made about limitations
    and aggregate damages were part of his judgment on the common issues. This
    court therefore has jurisdiction over all aspects of the appeals under s. 30(3)
    of the
CPA
. It is not necessary to consider whether, viewed
    discreetly, the determinations of these issues were final or interlocutory, a
    distinction that is not imported into s. 30(3) of the
CPA
.

(1)

Limitations

[22]

Two factors combine to entail the conclusion
    that the limitations aspect of the judgment is appealable as part of the
    judgment on the common issues. First, the limitations issue was raised as a
    defence on a class-wide basis, and second, the motions judge rejected the
    defence as being applicable on a class-wide basis, in the context of his
    disposition of the common issues.

[23]

As was permitted by this court when it certified
    the action as a class proceeding, the limitations issue was raised by the Bank
    as a defence to the claim of the plaintiff class on the common issues. As a
    defence, it was raised to alter or restrict the judgment that would otherwise
    be given on the common issues. The limitations defence, in the form of a
    request for a class-wide limitations restriction, was part of the Banks position
    on the summary judgment motions.

[24]

If the motions judge had accepted the Banks
    defence that, on a class-wide basis, claims before certain dates were statute
    barred, the judgment on the common issues on liability or remedy would have
    reflected that restriction.
[2]
As the defence on a class-wide basis was not accepted, the common issues
    judgment on liability and remedy reflects no class-wide restriction of claims. As
    in any appeal from a judgment, whether a defence should have been accepted and
    altered or restricted the judgment given is fair game for argument on the appeal.
    It is part of the appeal from the judgment itself.

[25]

As much as it may be germane to whether there
    is any merit to the Banks complaint about how the limitations defence was dealt
    with by the motions judge, it is not germane to the appeal route that the
    motions judge said that limitations issues could be raised at the individual
    hearings stage. Answering common issues without giving effect to a defence that
    is asserted to be applicable on a class-wide basis, even while holding that the
    defence may be raised in individual hearings, is still a judgment on the common
    issues for appeal purposes.
[3]

(2)

Aggregate Damages

[26]

Similarly, it is the nature of the power exercised
    by the motions judge to add aggregate damages as an issue, and the context in
    which he exercised it, that entail the conclusion that that aspect of the
    judgment is appealable as part of the judgment on the common issues.

[27]

In certifying aggregate damages as an
    additional common issue, the motions judge did not make an order certifying the
    proceedings as a class proceeding within the meaning of s. 30(2) of the
CPA
.
    Such an order had already been made by this court in 2012. Accordingly, the
    appeal route in s. 30(2) of the
CPA
is inapplicable.

[28]

Nor did the motions judge make an order adding a
    common issue prior to, or in circumstances divorced from, his disposition of
    the common issues. Rather, the motions judge was exercising the power referred
    to by the Supreme Court of Canada in
Pro-Sys Consultants
, where
    Rothstein J. stated, at para. 134:

The ultimate decision as to whether the
    aggregate damages provisions of the
CPA

should be available is
    one that should be left to the common issues trial judge. Further, the failure
    to propose or certify aggregate damages, or another remedy, as a common issue
    does not preclude a trial judge from invoking the provisions if considered
    appropriate once liability is found.

[29]

In other words, the motions judge relied on a
    power that permits the judge deciding the common issues of liability and
    remedy, to add aggregate damages as an additional common issue. His directions
    toward an award of aggregate damages are  therefore part of his judgment on the
    common issues, as is his rejection of the Banks defence to the exercise of
    that power, namely that this courts prior refusal to certify aggregate damages
    as a common issue in this case in the 2012 certification order gave rise to
res

judicata
.

[30]

That the motions judge left, to a further
    hearing, the question of whether  aggregate damages would actually be ordered
    payable, goes to the correctness of his exercise of the power and, perhaps, to
    whether the issue is ripe for appeal, but is not relevant to where the appeal
    lies.

D.

Conclusion

[31]

For these reasons, I would dismiss the motions
    to quash. In accordance with the agreement of the parties, the Bank is entitled
    to its costs of the motions fixed in the sum of $10,000, inclusive of disbursements
    and applicable taxes.

Released: January
    26, 2021 DD

B. Zarnett J.A.

I agree. Doherty J.A.

I agree. S. Coroza J.A.

[1]
Recent amendments to the
CPA

came into effect October 1, 2020 but they do not apply to this proceeding. As
    amended, the
CPA
now directs that
    appeals from orders certifying or refusing to certify a class proceeding be
    brought to this court.

[2]
It would not matter if the answers to the questions of whether the
    Bank had liability and whether there was a remedy in damages appeared in one
    paragraph of the formal judgment and the restrictionthat there was no
    liability or damages  before a certain dateappeared in a different paragraph.
    They would have to be considered together as the judgment on the common issues.

[3]
Just as the judgment on the common issue of remedies, which
    specified a remedy of damages, is properly appealable to this court even though
    no amount is thereby awarded to any person, and even though, absent
    consideration of aggregate damages, individual hearings would be required to deal
    with whether any individual had proven an amount that the Bank would have to
    pay.


COURT OF APPEAL FOR ONTARIO

CITATION: Goldentuler v. Simmons Dasilva
    LLP, 2021 ONCA 219

DATE: 20210407

DOCKET: C68561

Juriansz, Nordheimer and Jamal
    JJ.A.

BETWEEN

Edward Goldentuler

Plaintiff (Respondent)

and

Simmons Dasilva LLP and Ray
    Thapar

Defendants (Appellants)

Sean Dewart and Adrienne Lei, for the
    appellants

Edward Goldentuler, in person

Heard: April 6, 2021 by
    videoconference

On appeal from the order of Justice Jill
    Cameron of the Superior Court of Justice, dated July 14, 2020 with reasons
    reported at 2020 ONSC 4315.

REASONS FOR DECISION

[1]

The defendants appeal from the order of the
    motion judge that dismissed their motion, pursuant to r. 21.01(3)(b) of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194, to dismiss this action on the
    basis that the plaintiff is without legal capacity to commence or continue the
    action. At the conclusion of the hearing, we allowed the appeal with reasons to
    follow. We now provide our reasons.

[2]

The essential background facts are that the respondent's
    late brother was a lawyer in private practice. Before his death, he commenced
    an action against a group of former employees who had removed 120 client files
    from his office in the dead of night and deleted his electronic records
    concerning the stolen files.

[3]

The respondent, who is also a lawyer, obtained
    an order to continue the action in the name of his late brother's Estate. The
    claim proceeded to an uncontested damages assessment and the Estate obtained
    judgment for $318,174.55.

[4]

Thereafter, purportedly in his capacity as Estate
    trustee, the respondent retained the appellants to pursue an appeal in this
    Court. The appeal was successful and the damages award in favour of the Estate
    was increased to $901,791.71.
[1]

[5]

The appellants were successful in having the
    judgment satisfied, but a dispute arose concerning their fees for the appeal,
    following which the respondent commenced this solicitor's negligence action in
    his own name and in his personal capacity. He seeks $2 million in damages,
    alleging that the appellants fell below the standard of care in conducting the
    appeal.

[6]

The appellants brought a motion to dismiss the
    action on the grounds that the respondent does not have legal capacity to sue
    them, as the appellants had acted for the Estate, not the respondent personally.
    Further, the appellants submitted that it was only the Estate that could have
    suffered any damages from the alleged negligence, not the respondent
    personally.

[7]

In response to the motion, the respondent alleged
    for the first time that the Estate's chose-in-action against the ex-employees
    had been assigned to him, before the Estate retained the appellants, as part of
    his purchase of his late brothers law firm from the Estate.

[8]

The motion judge dismissed the motion to dismiss
    the action. In doing so, the motion judge found as a fact that the appellants
    were aware that the respondent had purchased the law firm from his late
    brothers wife, who was the executor of the Estate. A copy of the agreement had
    been sent to the appellants lawyers by the respondent on February 7, 2020 in
    response to their motion to dismiss. The motion judge then stated the core
    issue she was to determine. She said, at para. 29:

However, the issue is not whether the
    defendants knew about the purchase of the law firm. The issue is who retained
    the defendants on the appeal, therefore who was owed a duty of care by them and
    who would be affected by the outcome of the appeal.

[9]

The motion judge concluded that the respondent
    had capacity to bring the action. She based this conclusion on two facts: (i)
    the account for legal fees was directed to the respondent and (ii) the
    respondent was the only party who could have been affected by the outcome of
    the appeal since he had purchased the law firm.

[10]

In our view, the motion judge made a palpable
    and overriding error in her determination of the motion. She did so by not
    addressing the crucial question that she herself had stated, that is, who
    retained the appellants? The answer to that question is clear, it was the
    Estate. It was the Estate in whose name the original litigation was continued,
    it was the Estate that was the party on the appeal, and it was the Estate for
    whose benefit the damage award was increased. On that latter point, we note
    that it was the Estate to whom payment was made on the ultimate judgment and it
    was the Estate on whose behalf the retainer agreement with the appellants was
    signed.

[11]

We would add that nothing of consequence turns
    on the fact that the account for legal fees was directed to the respondent. He was
    the individual who provided instructions to the appellants on behalf of the
    Estate. The addressee of the account does not change on whose behalf the
    appellants were retained. We also note that the account was expressly stated to
    be for fees relating to the matter of Estate of Henry Goldentuler v. Robert
    Crosbie et al.

[12]

In light of our conclusion, it is unnecessary to
    address the arguments regarding the possible application of the
Conveyancing
    and Law of Property Act
, R.S.O. 1990, c. C.34 to this case. However, the
    fact that we do not need to address those arguments should not be taken as meaning
    that we agree with the position taken by the motion judge on the issue, or on
    her interpretation of the Act.

[13]

The respondent does not have a personal claim
    arising from the retainer of the appellants given the party on whose behalf the
    appeal was brought and on whose behalf the appellants were retained. He does
    not, therefore, have capacity to bring the solicitors negligence claim.

[14]

In the event of this result, in his factum, the
    respondent asked that this court amend the title of proceeding to add the
    proper plaintiff. It is simply too late for the respondent to seek such relief.
    Among other reasons, we do not have any indication whether the Estate would be
    prepared to be added as a plaintiff in this action. The consent of the Estate
    would be necessary for that purpose. It also does not address what appears to
    be some potential difficulties with the original action.

[15]

It is for these reasons that the appeal was
    allowed and the order below set aside. In its place, the motion is granted, and
    the action is dismissed. The appellants are entitled to their costs of the
    appeal in the agreed amount of $9,000 inclusive of disbursements and HST. As
    also agreed, the costs award below is reversed so that it is now in favour of
    the appellants.

R.G. Juriansz J.A.

I.V.B. Nordheimer J.A.

M. Jamal J.A.

[1]

Goldentuler Estate v. Crosbie
, 2017 ONCA 591


COURT OF APPEAL FOR ONTARIO

CITATION: Great Northern Insulation Services Ltd. v. King
    Road Paving and Landscaping Inc., 2021 ONCA 367

DATE: 20210601

DOCKET: C67541

Doherty, Nordheimer and Harvison Young JJ.A.

BETWEEN

Great Northern Insulation
    Services Ltd.

Plaintiff/Appellant

(Respondent)

and

King Road Paving and
    Landscaping Inc. also known as King Road Paving & Landscaping Inc., Louis
    Alaimo, Agostino Plati, Giuseppina Plati, and Scotia Mortgage Corporation

Defendants/Respondents

Jonathan Frustaglio, for the appellant Sutherland Law

Michael Odumodu, for the respondent Great
    Northern Insulation Services Ltd.

Heard: April 30, 2021 by video conference

On appeal from the order of the Divisional Court (Justices David
    L. Corbett, Frederick L. Myers and Elizabeth C. Sheard), dated June 14, 2019,
    with reasons reported at 2019 ONSC 3671, 71 C.B.R. (6th) 187, varying the judgment
    of Justice Robert Charney of the Superior Court of Justice, dated December 14,
    2017, with reasons reported at 2017 ONSC 7675, 86 C.L.R. (4th) 331.

Nordheimer
    J.A.:

[1]

Sutherland Law appeals, with leave, from the order of the Divisional
    Court that allowed the appeal of Great Northern Insulation Services Ltd. from
    the trial judges decision regarding its claim for priority arising out of a
    charging order that the appellant law firm had obtained in this construction
    lien proceeding. As I am in substantial agreement with the analysis undertaken
    by the Divisional Court, I would dismiss the appeal.

BACKGROUND

[2]

King Road Paving and Landscaping Inc. (King Road) was hired in June
    2012 by the defendant Agostino Plati and Giuseppe (Pino) Nesci, as a contractor
    to complete extensive work on the renovation of an old barn located in
    Schomberg, Ontario. A dispute arose over payment for the work.

[3]

The dispute captured two suppliers (subcontractors) that supplied goods
    and services to the project and remained unpaid. They registered construction
    liens against the property. These lien claims were tried together with King
    Roads claim against the owners. The first supplier is Great Northern
    Insulation Services Ltd. (Great Northern), which contracted with King Road to
    supply spray foam insulation to the barn for $51,415. The second supplier is
    Webdensco, a building supply centre. Subsequently, Webdensco assigned its
    interest in its lien to King Road, pursuant to s. 73 of the
Construction
    Lien Act
, R.S.O. 1990, c. C.30.
[1]
King Road then sought payment in the amount of $54,387.99 on behalf of
    Webdensco.

[4]

A trial of the issues was eventually heard and determined.
[2]
The trial judge granted judgment in favour of King Road against the owners. He
    also granted judgment in favour of Great Northern against King Road in the
    amount of $105,803. Further, the trial judge declared that both Great Northern and
    Webdensco were entitled to liens under the
Construction Lien Act
.

[5]

Some months after the trial decision was released, the appellant law
    firm, which had represented King Road in the proceedings, brought a motion on
    an urgent basis for a charging order under s. 34(1) of the
Solicitors Act
,
    R.S.O. 1990, c. S.15. The trial judge granted the charging order.
[3]
In doing so, the trial judge provided that the charging order would have
    priority over any amount owed to Great Northern by King Road pursuant to the
    trial judgment and costs order.

[6]

Great Northern did not appeal the granting of the charging order, but it
    did appeal the priority provided by the charging order over the amounts owed to
    it. By reasons dated June 14, 2019, the Divisional Court allowed the appeal and
    varied the charging order to provide that Great Northern had priority over the
    solicitors' charging order in the amount of $54,737.61, plus any interest that
    accrued on this amount to the time it is paid to Great Northern. That amount represents
    the funds that remained from what had been paid by the owners to King Road. As
    will be seen, those funds are trust funds under the
Construction Lien Act
.

THE DECISION BELOW

[7]

In making the order that it did, the Divisional Court found that
    interest owing to Great Northern was to be included in the amount that Great
    Northern could claim against the trust funds created by operation of the
Construction
    Lien Act
. In this case, interest amounted to $51,065.39 as found by the
    trial judge. The other amount of $3,744.37 was the amount that was left unpaid to
    Great Northern on the base contract price.

[8]

In reaching this conclusion, the Divisional Court held that the proper
    interpretation of s. 8 of the
Construction Lien Act
, included interest
    due on the contract price. At the core of this appeal is the appellants
    contention that the Divisional Courts interpretation is in error.

ANALYSIS

[9]

In my view, the issues raised by the appellant boil down to the
    following:

1.

The Divisional Court erred in finding that it had jurisdiction to hear
    an appeal from the charging order.

2.

The Divisional Court erred in finding that interest payable on the
    contract price was to be included within the trust funds.

3.

The Divisional Court erred in finding that Great Northerns priority
    over the trust funds was not affected by the assignment of Webdenscos lien to
    King Road.

I will deal with each of the issues in turn.

(1)

Jurisdiction

[10]

I
    do not agree with the appellant that any appeal from the charging order lay
    directly to this court, and that the Divisional Court erred in concluding that
    it had jurisdiction to hear the appeal. The charging order was obtained
    pursuant to s. 34(1) of the
Solicitors Act
, which reads:

Where a solicitor has been employed to prosecute or
    defend a proceeding in the Superior Court of Justice, the court may, on motion,
    declare the solicitor to be entitled to a charge on the property recovered or
    preserved through the instrumentality of the solicitor for the solicitors
    fees, costs, charges and disbursements in the proceeding.

[11]

It
    is implicit in the wording of s. 34(1) that a lawyer who wishes to obtain a
    charging order must do so by bringing a motion in the proceeding where the property
    recovered or preserved through the instrumentality of the solicitor
    originated. In this case, that proceeding was the construction lien proceeding.
    The necessary appeal route from any order obtained in a proceeding is dictated
    by the statute that governs the proceeding, in this case, the
Construction
    Lien Act
.
The
Construction Lien Act
provides, in s. 71,
    that an appeal from a judgment lies to the Divisional Court. This court does
    not have original appellate jurisdiction when a statute provides a right of
    first appeal to the Divisional Court:
Courts of Justice Act
, R.S.O.
    1990, c. C.43, s. 6(1)(b).

[12]

The
    Divisional Court was correct in concluding that it had jurisdiction to hear the
    appeal from the charging order.

(2)

Trust funds and Interest

[13]

This
    is the issue that lies at the heart of this appeal. Indeed, the appellant
    essentially conceded, during the hearing, that if it did not prevail on this
    issue, the appeal would likely fail. This issue turns on the proper
    interpretation of s. 8 and, in particular, s. 8(2) of the
Construction Lien
    Act
, which reads:

The contractor or subcontractor is the trustee of the
    trust fund created by subsection (1) and the contractor or subcontractor shall
    not appropriate or convert any part of the fund to the contractors or
    subcontractors own use or to any use inconsistent with the trust until all
    subcontractors and other persons who supply services or materials to the
    improvement are paid all amounts related to the improvement owed to them by the
    contractor or subcontractor.

[14]

The
Construction Lien Act
is remedial legislation. Consequently, it should
    be given a fair, large and liberal interpretation in order to achieve its
    objectives:
Legislation Act, 2006
, S.O. 2006, c. 21, Sched. F, s.
    64(1). Principal among those objectives is the protection of those lower down
    on the pyramid of claimants. As Weiler J.A. said in
Sunview Doors Ltd. v.
    Academy Doors & Windows Ltd.
,
2010 ONCA 198, 101 O.R. (3d) 285,
    at para. 99:

The object of the Act is to prevent unjust enrichment of those
    higher up in the construction pyramid by ensuring that money paid for an
    improvement flows down to those at the bottom. In seeking to protect persons on
    the lower rungs from financial hardship and unfair treatment by those above,
    the Act is clearly remedial in nature. The remedial nature of the Act also
    supports a liberal construction so as to enable it to serve its purpose.

[15]

In
    my view, the words all amounts related to the improvement owed to them by the
    contractor found in s. 8(2) ought to be given that large and liberal interpretation.
    The words all amounts related to are, themselves, broad, much like the words
    in respect of have been found to be. In that regard, I refer to the language
    of Major J. in
Markevich v. Canada
, 2003 SCC 9, [2003] 1 S.C.R. 94, at
    para. 26, where he said: The words in respect of have been held by this
    Court to be words of the broadest scope that convey some link between two
    subject matters.

[16]

In
    the normal commercial context, interest that accrues on payments due under a
    contract would be considered amounts owing on the contract. Interest on overdue
    amounts may be expressly included in the terms of the contract or it may be
    implied such as, for example, where the interest provision is included in the
    invoices that are rendered under the contract. This interpretation is
    consistent with the definition of price contained in s. 1(1) of the
Construction
    Lien Act
which reads, in part:

price means the contract or subcontract price,

(a) agreed upon between the parties

[17]

The
    actual contractual agreements between the parties are not in the record before
    us. However, the trial judge referred in his reasons, at para. 183, to the fact
    that Great Northern and King Road had entered into a credit agreement that provided
    credit terms of 30 days for payment, with interest on outstanding amounts at
    the rate of 2% per month. Therefore, the interest amount in this case was
    expressly provided for by the contractual arrangements between the parties.

[18]

Thus,
    interest reasonably falls within the scope of s. 8(2) as an amount owing to a
    subcontractor relating to the improvement. Interest owing is therefore part of
    the trust fund created by s. 8(1) and falls directly within the restrictions on
    the permissible use of those trust funds stipulated by s. 8(2).

[19]

Given
    the priority established by s. 8(2) that subcontractors enjoy over the trust funds,
    there was no basis for the trial judge to give the charging order a greater priority
    over the trust funds. Such a conclusion would be fundamentally inconsistent
    with the purpose behind the creation of the trust and would violate the above
    restriction on the use of the trust funds.

[20]

I
    would add, on this point, that we are not speaking here about lien rights. We
    are speaking about trust funds. The two are separate concepts under the
Construction
    Lien Act
. Liens give subcontractors and suppliers the right to assert a
    claim directly against the property, whereas trusts serve to protect the
    interests of subcontractors and suppliers by protecting funds that are owed to,
    or have been received by, the contractor. Actually, the
Construction Lien
    Act
provides expressly that interest is not part of the lien claim in s. 14(2),
    which reads:

No person is entitled to a lien for any interest on
    the amount owed to the person in respect of the services or materials that have
    been supplied by the person,
but nothing in this subsection affects any
    right that the person may otherwise have to recover that interest
.
    [Emphasis added.]

[21]

No
    such exclusion is contained in s. 8. While Great Northern would not have been
    entitled to include the interest amount within its lien claim, there is no
    principled reason to exclude interest from the trust fund provisions, absent
    the legislation so providing. Excluding interest would also be inconsistent
    with the object of the legislation as expressed in
Sunview Doors Ltd.
above.

[22]

This
    conclusion is also consistent with the purpose of the trust provisions as
    enunciated by Sharpe J.A. in
The Guarantee Company of North America v. Royal
    Bank of Canada
, 2019 ONCA 9, 144 O.R. (3d) 225, where he said, at para. 31:

[T]he legislature enacted the trust provisions because it
    recognized that the lien provisions only provided a partial form of security to
    suppliers. The lien provisions failed to protect suppliers at the bottom of the
    pyramid in situations where the owner of the land had already paid the
    contractor. The trust provisions complement the lien provisions by providing
    security to suppliers at the bottom of the pyramid in these situations.

[23]

I
    would also note that this conclusion mirrors the conclusion reached by the New
    Brunswick Court of Appeal in
Fundy Ventilation Limited v. Brunswick
    Construction Ltd., Fraser Companies Limited and Minister of National Revenue
(1982), 40 N.B.R. (2d) 484 (C.A.), 136 D.L.R. (3d) 455, leave to appeal
    refused, 45 N.R. 528, where, in considering a similar issue, La Forest J.A.
    said, succinctly, at p. 502: Interest would equally attach to Fundy's claim
    under the trust.

[24]

Finally,
    on this point, I agree with the Divisional Court that there is only one trust
    fund for the subcontractors. This is clear from the wording of s. 8(1)  constitute
a
trust fund (emphasis added). It is also clear from the observations
    made by Sharpe J.A. in
Royal Bank of Canada
, at paras. 27-32, as to
    the purpose of the trust fund provisions.

(3)

The Webdensco assignment

[25]

A
    final issue must be addressed. There is an issue raised as to whether the above
    analysis is altered by the fact that the other subcontractor, Webdensco,
    assigned its lien to King Road during the course of the proceeding. The
    Divisional Court held that if King Road used monies that it had received from
    the owners to pay Webdensco, which would be trust funds, then Webdenscos trust
    claim was extinguished, leaving only Great Northern with rights to the trust
    funds. Put another way, if King Road used monies impressed with a trust in
    favour of the subcontractors, then Webdenscos claim to the trust funds was
    gone, leaving only Great Northern with the right to claim against the trust
    funds. King Road did not acquire any right to claim against those trust funds.

[26]

On
    this point, at the hearing before the Divisional Court, the panel raised with
    counsel whether s. 11 of the
Construction Lien Act
played a role in
    the proper analysis of the issues raised. Given that the question was raised by
    the panel, the parties were given leave to file written submissions on the
    point.

[27]

As
    I have already said, the contractor had, at some point, settled the claim of
    Webdensco and taken an assignment of its lien. This then raised the issue
    whether that arrangement permitted the contractor to stand in the shoes of
    Webdensco when it came to the distribution of the trust funds. The appellants
    position was that the contractor was afforded all of its rights as a lien
    claimant  including the right to receive payment of Webdensco's pro-rata share
    from the trust funds. The appellant coupled this submission with its contention
    that there are separate trust funds  one for each subcontractor. Like the Divisional
    Court, I have rejected that latter argument above.

[28]

The
    Divisional Court disagreed with the appellant. It found that the result
    submitted by the appellant would only be the case if the contractor had used
    non-trust funds to pay Webdensco and receive an assignment of its lien. That
    conclusion follows from the express language of s. 11(1), which reads:

Subject to Part IV, a trustee who pays in whole or in part for
    the supply of services or materials to an improvement out of money that is not
    subject to a trust under this Part may retain from trust funds an amount equal
    to that paid by the trustee without being in breach of the trust.

[29]

In
    this court, the appellant changes tack. It now argues that the application of
    s. 11 was a new issue that ought not to have been permitted on appeal, citing
Kaiman
    v. Graham
, 2009 ONCA 77, 245 O.A.C. 130, at para. 18. The appellant also
    complains that it was not permitted to file evidence about the source of the
    funds used by King Road to pay Webdensco.

[30]

I
    do not accept either of the challenges raised by the appellant. While the
    application of s. 11 may have arisen first on the appeal, that does not make it
    a new [issue] as contemplated by the decision in
Kaiman
.
[4]
The Divisional Court was being asked to answer a specific question that
    involved the interpretation of the
Construction Lien Act
. Any section
    of the statute that might be relevant to the question to be answered had to be
    considered. If the Divisional Court thought that s. 11 might play some role in
    their analysis of the question that was before them, then the Divisional Court
    was obliged to raise the issue with the parties and permit them to make
    submissions. That is what happened.

[31]

In
    terms of the evidentiary issue, the appellant did not, at any point, ask for
    leave to file evidence as to the source of the funds. It did not do so at the
    time that the issue was raised by the panel at the hearing in the Divisional
    Court; and it did not do so in its written submissions responding to the s. 11 issue.
    Similarly, the appellant did not make any such request in this court, nor did it
    bring a motion to adduce fresh evidence. The appellant cannot complain about a
    denial of the right to file evidence that it never made any request for.
    Further, given that it was the appellant that was suggesting that the
    contractor might fall within the exception provided for in s. 11, it was the
    appellant who bore the evidentiary burden. Given that it did not seek to place
    evidence before the court on the issue, the Divisional Court was entitled to
    assume that King Road had used trust funds, i.e. funds received from the
    owners, to pay Webdensco.

CONCLUSION

[32]

The
    appeal is dismissed. The respondent is entitled to its costs of the appeal in
    the amount of $14,000 inclusive of disbursements and HST.

Released: June 1, 2021 D.D.

I.V.B. Nordheimer
    J.A.

I agree. Doherty J.A.
I agree. Harvison Young J.A.

[1]

The contracts in this case were entered into around 2012 and
    all events in issue were completed prior to July 1, 2018, the date on which numerous
    provisions of the
Construction Lien
    Amendment Act, 2017
, S.O. 2017, c. 24 came into effect.
    That Act made a number of changes to the
Construction Lien Act
,
    including changing the name of the statute to the
Construction Act
.

[2]

King Road Paving and Landscaping Inc. v.
    Plati
, 2017 ONSC 557, 64 C.L.R. (4th) 102;
King Road Paving and Landscaping Inc. v. Plati
,
    2017 ONSC 6319, 77 C.L.R. (4th) 165.

[3]

King Road Paving and Landscaping Inc. v.
    Plati
, 2017 ONSC 7675, 86 C.L.R. (4th) 331.

[4]

See the recent discussion of this distinction in
R. v. G.F.
,
2021 SCC 20, at para. 93.


COURT OF APPEAL FOR ONTARIO

CITATION: Grist v. TruGrp Inc., 2021 ONCA
    309

DATE: 20210511

DOCKET: C68144

Lauwers, Miller and Nordheimer
    JJ.A.

BETWEEN

Geoff Grist, Pauline Grist and
    Brook Restoration Ltd.

Plaintiffs (Appellants)

and

TruGrp Inc., Alexander McMullen
    and Christian Brannan

Defendants (Respondents)

Derek J. Bell and Katelyn Ellins, for
    the appellants

Damien Buntsma and Richard K.
    MacGregor, for the respondents

Heard: December 1, 2020 by video conference

On appeal from the judgment of Justice Grant
    R. Dow of the Superior Court of Justice, dated February 5, 2020, with reasons
    at 2020 ONSC 347.

REASONS
    FOR DECISION

OVERVIEW

[1]

The respondents Alexander McMullen and Christian Brannan were employees
    of the appellant Brook Restoration Ltd. (Brook), a building restoration company.
    McMullen and Brannan left Brook to start a competing business, the respondent TruGrp
    Inc. (TruGrp).

[2]

Litigation followed. In March 2018, Brook sued McMullen and Brannan for
    various causes of action, including breach of fiduciary duty, misappropriation
    of confidential information, and interference with economic relations, later
    amending their claim to include TruGrp as a defendant (the Brook action). In March
    2019, the respondents sued Brook, Brooks officers Geoff Grist and Pauline Grist,
    and Brooks counsel for defamation, among other causes of action (the TruGrp action).
    The TruGrp action was discontinued.

[3]

In July 2019, the appellants brought the present action alleging, among
    other claims, defamation. The respondents responded with a motion under 137.1
    of the
Courts of Justice Act
, R.S.O. 1990, c. C.43, to dismiss it as a
    Strategic Lawsuit Against Public Participation (SLAPP).

[4]

The motion judge allowed the motion and dismissed the appellants
    action. For the reason given below, we do not agree that the July 2019 action
    is properly characterized as a SLAPP. Accordingly, for the reasons given below,
    the appeal is allowed and the order dismissing the action is set aside.

BACKGROUND

A.

The TruGrp Action

[5]

Under the Brook action, the appellants counsel sent preservation
    letters to TruGrps contractors directing them to preserve any relevant evidence.
    In March 2019, in response to the preservation letters, the respondents sued
    the appellants and their counsel for defamation, civil conspiracy, and unlawful
    interference with economic relations. The next month, the respondents
    discontinued the TruGrp action.

B.

The OLRB Application

[6]

In May 2019, The Operative Plasterers and Cement Masons International
    Association of the United States and Canada, Local 598 (the Union) initiated an
    Ontario
Labour
Relations Board (the OLRB) application
    against Brook and TruGrp. The OLRB application was unrelated to the Brook and
TruGrp

actions. It was
centred
on whether TruGrp was Brooks successor employer under
    the
Labour Relations Act, 1995
, S.O. 1995, c. 1, Sched. A, and therefore
    bound to the same collective agreements as Brook. Geoff Grist, Pauline Grist,
    and the appellants counsel in the Brook Action were not parties in the OLRB proceeding.

[7]

When TruGrp filed its response to the Unions Application, it attached the
    statement of claim from the discontinued TruGrp Action. Brook alleged that the response
    and attached statement of claim contained false and defamatory statements about
    Brook, Geoff Grist, Pauline Grist, and the appellants counsel. TruGrp argued
    the statement of claim was relevant to establishing that TruGrp was not a
    successor employer. The statements to which the appellants objected include the
    following allegations:

·

the appellants and their counsel sent the
    preservation letters to intimidate potential customers and others from doing
    business with the respondents. These letters were also intended to deceive their
    recipients;

·

the appellants illegally put pressure on the
    Union to bring the related employer application before the OLRB; and

·

the appellants initiated frivolous and vexatious
    legal proceedings against former employees who set up competing firms, or firms
    operating in a related stream of the restoration industry, in order to cause
    irreparable economic and reputational harm to those competing firms.

[8]

Brook demanded that TruGrp withdraw from its OLRB response the
    discontinued statement of claim and the allegedly false statements. TruGrp refused.
    The Union, with Brooks support, moved to strike the impugned portions of TruGrps
    Response. The OLRB dismissed the motion to strike.

CURRENT PROCEEDINGS

[9]

In July 2019, the appellants commenced this action against the
    respondents, based on the respondents use of the impugned expressions in their
    OLRB pleadings. The appellants sought damages for defamation, unlawful
    interference with economic and contractual relations, and abuse of process.

[10]

In
    response, the respondents brought a motion under s. 137.1 of the
Courts of
    Justice Act
to have the appellants action dismissed as a SLAPP. The respondents
    argued this action was an attempt to limit the respondents freedom of
    expression on matters of public interest. Primarily, the respondents argued the
    impugned expressions contained in the discontinued statement of claim related
    to a matter of public interest because they spoke to the appellants pattern of
    using litigation to gain an economic advantage over competitors, affect the
    union certification process, and interfere with employees freedom of
    association.

[11]

The
    motion judge allowed the anti-SLAPP motion and dismissed the appellants action
    on the basis that TruGrps response in the OLRB application constituted an expression
    made in relation to a matter of public interest:

there is a public interest in how the
    operation of restoration work in the province in conducted. It is also in the
    public interest with regard to the involvement in retaining other businesses to
    do that type of work. This includes businesses that are subject to collective
    bargaining or workers represented by unions and activities within the
    jurisdiction of the OLRB. The parties to the action before me raise allegations
    of prohibited practices such as price covering.

[12]

Having
    found that the respondents met their threshold burden, the motion judge considered
    whether the appellants could
show
, pursuant to s.
    137.1(4)(a), that the action had substantial merit and that the respondents had
    no valid
defence
. Although the motion judge concluded
    that the appellants action had substantial merit, he held that the appellants failed
    to show the respondents had no valid
defence
.

[13]

In
    concluding that the appellants failed to show the respondents lacked a valid
defence
, the motion judge held that the impugned expression
    fell within the doctrine of absolute privilege. He recognized that absolute
    privilege would not apply if the expression was not made for the purpose of the
    OLRB proceeding. However, he concluded that the discontinued statement of claim
    added value to TruGrps position before the OLRB. He found that TruGrp
    referenced the preservation letters and Brooks allegations against TruGrp in
    order to support TruGrps position that it was not Brooks successor employer. Consequently,
    the motion judge found that TruGrps response in the OLRB proceeding, which
    included references to the discontinued statement of claim, fell under the
    protection of absolute privilege.

[14]

Finally,
    the motion judge concluded that the harm Brook suffered from TruGrp including
    the discontinued statement of claim in the response was not sufficiently
    serious to warrant permitting the action to proceed.

ISSUES ON APPEAL

[15]

The
    appellants effectively argue that the motion judge made three errors:

1.

the motion judge characterized the respondents
    expression too broadly for the purposes of analysis under s. 137.1(2) and further
    erred in concluding that the expression was a matter of public interest;

2.

the motion judge erred in interpreting the merits test; and

3.

the motion judge erred in finding the appellants did not tender sufficient
    evidence of harm to permit the action to proceed.

ANALYSIS

Is the
    expression a matter of public interest?

(1)

Principles

[16]

To
    satisfy the threshold requirements under s. 137.1(3), the moving party must show
    (i) the proceeding arises from an expression made by the moving party, and (ii)
    the expression relates to a matter of public interest:
1704604 Ontario
    Ltd. v. Pointes Protection Association
, 2020 SCC 22, 449 D.L.R. (4th) 1, at
    para. 21. Here, there is no dispute that the pleadings constitute expression.
    This appeal turns on whether the respondents expression relates to a matter of
    public interest.

[17]

The
    purpose of s. 137.1, as explained in
Pointes
, is to circumscribe
    proceedings that adversely affect expression made in relation to matters of
    public interest, in order to protect that expression and safeguard the fundamental
    value that is public participation in democracy: at para. 30. It is not a new
    form of summary trial on the merits of a defamation action but is instead meant
    to provide an early and cost-effective means of ending litigation brought by a plaintiff
    to silence a party who has spoken on a matter of public interest:
Sokoloff
    v. Tru-Path Occupational Therapy Services Ltd.
, 2020 ONCA 730, 153 O.R.
    (3d) 20, at para. 47. Its paradigmatic application is to prevent others from silencing
    persons who are speaking on matters that have significance beyond themselves.

[18]

The
    scope of s. 137.1s protection is set using the concept of the public interest.
    This is a concept that many have found difficult to apply. The most detailed exploration
    of the concept is provided in
Grant v. Torstar
, 2009 SCC 61, [2009] 3
    S.C.R. 640, in the analogous context of the law of defamation. That case emphasizes
    that the public interest is not a descriptive concept: it is not a matter of
    ascertaining what the public, or any subgroup, believes to be interesting, entertaining,
    or worth their attention: at para. 102. Instead, there is necessarily a
    normative aspect to what is genuinely a matter of public interest:
Sokoloff
,
    at para. 18. That is, the statement must address an issue about which the
    public has some substantial concern because it affects the welfare of citizens,
    or one to which considerable public notoriety or controversy has attached:
Grant
,
    at para. 105, citing Raymond E. Brown,
The Law of Defamation in Canada
,
    loose-leaf, (2008-Rel. 3) 2nd ed. (Scarborough: Carswell, 1999), vol. 2, at pp.
    15-137 and 15-138. Again, the fact of notoriety or controversy is not
    sufficient in itself  one must assess the reason for the notoriety.

[19]

The
    public interest includes such matters as the establishment, use, allocation,
    and maintenance of shared public goods, and therefore protects discussion and
    advocacy about the distribution of benefits and burdens of social life. But the
    public interest is not necessarily limited to matters of shared public life:
Grant
,
    at para. 106. There is, after all, a public interest in maintaining peaceful
    relations between persons in society and in drawing attention to acts of injustice.
    But the resolution of purely private disputes between more or less equalsdisputes
    that have no immediate bearing on the rights or obligations of otherscan seldom
    be a matter of public interest:
Sokoloff
, at para. 19.

(2)

Application

[20]

The
    appellants argue that the motion judge erred by characterizing the relevant expression
    as the response as a whole. Thus, he held that there is a public interest in
    how the operation of restoration work in the province is conducted, as well as
    in retaining other businessesincluding businesses that are subject to
    collective bargaining and workers represented by unions and activities within
    the jurisdiction of the OLRBto perform restoration work.

[21]

The
    motion judge erred by failing to analyze the specific statements that were the
    subject of the appellants action. This includes the allegedly defamatory
    statements in the statement of claim appended to the response, as well as the
    11 paragraphs in the response repeating the points made in that attachment. It
    is only these statements that constitute the relevant expression for the
    purposes of the s. 137.1 motion. The remaining statements contained in the response
    and the appended statement of claim were not the subject of the appellants
    action, and the appellants had not attempted to use legal process to prevent or
    discourage the respondents from making those statements. The whole of the response
    provides relevant context for understanding the 11 paragraphs itemized in the
    defamation action and can be considered for that purpose. However, the
    expression that is the relevant subject matter for the motion is the 11
    paragraphs in the response and the portions of the statement of claim from
    which those paragraphs originate.

[22]

The
    subject of those paragraphs, summarized above, is best characterized as an allegation
    that a building restoration business engaged in conduct that was tortious and
    contrary to
labour
law, in order to harm its competitors
    and gain an unfair advantage.

[23]

We
    agree with the appellants that the motion judge erred in finding the expression
    relates to a matter of public interest. Activity that unfairly reduces
    competition is a matter of public interest, in the sense that justice requires that
    such actions be proscribed for the common good. But that does not mean that every
    occurrence of this type of misconduct is a matter of public interest, having
    significance to anyone other than the parties involved and the institutions established
    to resolve their disputes. The nature of the respondents expression is fundamentally
    a private dispute, to which s. 137.1 does not apply.

[24]

In
    light of our finding, the respondents s. 137.1 motion fails at the s. 137.1(3)
    threshold stage. Accordingly, it is not necessary that we address the other
    issues raised by the appellants.

[25]

There
    is no reason why the appellants action should not proceed to adjudication. In
    so holding, however, we should not be taken as having expressed any opinion on
    the merits of that action.

DISPOSITION

[26]

The
    appeal is allowed, the order below is set aside, and the action is restored. If
    the parties are unable to agree on the costs of the appeal, they may each file
    written submissions, not to exceed three pages, and a bill of costs, within 14 days.

P. Lauwers J.A.

B.W. Miller J.A.

I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Halton (Regional Municipality) v.
    F. Greco & Sons Limited (Greco Construction), 2021 ONCA 322

DATE: 20210512

DOCKET: M52153 and M52369 (M51847)

Nordheimer J.A. (Motions Judge)

BETWEEN

The Regional Municipality of
    Halton

Plaintiff
Moving and Responding Party

and

F.
    Greco & Sons Limited o/a Greco Construction, Michael Greco, John Frank Greco,
    John Paul Greco, Sirron Systems Incorporated, Sirron Systems Inc., Sirron Group
    International, Sirron Electrical Contracting Corporation, David Allan Norris,
    Meehans Industrial Maintenance Ltd., Patrick Vincent Meehan, Jason Matthew
    Mote, Giulio (Julio) Cerelli, Canian Precision Machine Shop Limited, Wahan
    Aghaian, Eli Ishkanian and
Lisa Snowball

Defendants
Moving and Responding Party

Talia Gordner, for the moving and
    responding party, Regional Municipality of Halton

Paul H. Starkman, for the moving and
    responding party, Lisa Snowball

Heard: May 12, 2021
    by video conference

ENDORSEMENT

[1]

I have two motions before me. One motion is
    brought by the Regional Municipality of Halton to strike out the motion for
    leave to appeal brought by the responding party, Lisa Snowball. The other
    motion is brought by Lisa Snowball for leave to file fresh evidence on the
    motion for leave to appeal. Ms. Snowballs motion for leave to appeal seeks to
    appeal the denial of leave to appeal by the Divisional Court from an order of a
    Superior Court judge.

[2]

Prior to hearing the merits of the motions, I
    raised with counsel whether a single judge of this court has jurisdiction to
    determine either of them. I have concluded that I do not.

[3]

Only a panel can determine the issue of
    jurisdiction with respect to an appeal:
Courts of Justice Act
, R.S.O.
    1990, c. C.43, s. 134(3),
Rules of Civil Procedure,
R.R.O. 1990, Reg.
    194, r. 61.16(2.2). Also, only a panel can determine a motion for leave to
    appeal:

Courts of Justice Act
, ss. 7(1), 7(3).

[4]

In my view, it follows from these provisions
    that since a panel must determine the motion for leave to appeal, it is a panel
    that must determine any jurisdictional issue relating to the motion for leave
    since, if successful, it would finally determine whether there is an appeal or
    not. Therefore, it must be a panel of this court that hears and determines the
    Regions motion to strike the motion for leave to appeal.

[5]

I reach the same conclusion respecting Ms.
    Snowballs motion to adduce fresh evidence. Rule 61.16(2) provides that a
    motion to receive fresh evidence must be made to the panel hearing the appeal.
    Following the same analysis above relating to the jurisdiction issue, it is my
    view that, if a panel hearing an appeal must determine the admissibility of
    fresh evidence on the appeal, a panel hearing a motion for leave to appeal must
    determine the admissibility of fresh evidence on that motion.

[6]

As a result, I order that these two motions be
    transferred to be heard and determined by a panel of this court. If the panel
    determines the jurisdictional issue in favour of the Region, then the motion
    for fresh evidence becomes moot. If the jurisdictional issue is determined in
    favour of Ms. Snowball, then the panel can direct how the motion for fresh
    evidence ought to be dealt with.

[7]

I reserve the costs of today to the panel
    hearing the motions.

I.V.B.
    Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
    Hannivan v. Wasi, 2021 ONCA 187

DATE: 20210325

DOCKET:
    C68206

Feldman,
    Paciocco and Coroza JJ.A.

BETWEEN

Paul
    J. Hannivan and Pamela J. Hannivan

Plaintiffs/Moving
    Parties

(Respondents)

and

Muhammad Wasi
and RE/MAX Aboutowne Realty Corp.

Defendants/Responding
    Parties

(
Appellant
)

AND BETWEEN

Muhammad
    Wasi

Plaintiff
    by Counterclaim/Responding Party

(Appellant)

and

Paul
    J. Hannivan and Pamela J. Hannivan

Defendants
    by Counterclaim/Moving Parties

(Respondents)

Dheeraj Bhatia, for the appellant

Mark A. De Sanctis, for the respondents

Heard: March 8, 2021 by video
    conference

On appeal
    from the judgment of Justice Clayton Conlan of the Superior Court of Justice,
    dated February 20, 2020, with reasons reported at 2020 ONSC 1060.

REASONS FOR DECISION

BACKGROUND

[1]

On March 20, 2017, the appellant
    purchaser and the respondent vendors executed an agreement of purchase and sale
    (APS) for a residential property located in Oakville, Ontario. The purchase
    price was $1,155,000. The purchaser paid a $50,000 deposit. Both parties were
    represented by real estate agents throughout the process.

[2]

The APS had a closing
    date of August 18, 2017. All requisitions affecting title to the property were
    to be submitted by August 1, 2017 at 6:00 p.m. The purchaser did not submit any
    requisitions before the deadline expired.

[3]

After regular business
    hours on August 17, 2017, the day before the closing, counsel for the purchaser
    sent correspondence to the vendors real estate lawyer. The lengthy
    correspondence set out various concerns with the transaction. Of note to this
    appeal is the purchasers allegation that the vendors failed to comply with a
    term of the APS concerning a property survey. That term, found in Schedule A to
    the APS, is as follows:

The Seller agrees to provide, at the Sellers
    own expense, not later than two weeks, an existing survey of said property
    showing the current location of all structures, buildings, fences,
    improvements, easements, rights-of-way, and encroachments affecting said
    property. The Seller will further deliver, on completion, a declaration
    confirming that there have been no additions to the structures, building,
    fences, and improvements on the property since the date of this survey.

[4]

In the correspondence,
    counsel for the purchaser claimed that the APS was null and void due to the vendors
    failure to comply with the survey term. They demanded that the purchasers
    deposit be returned to him in full. On August 18, 2017, the vendors
    solicitor replied, stating that the purchaser had breached the APS and thereby
    forfeited his deposit.

[5]

The transaction never
    closed. The vendors relisted the property for sale, ultimately selling it to
    another buyer for less than the original purchase price in the APS. The vendors
    sued the purchaser for the difference in the purchase price, plus other
    damages. The purchaser counterclaimed for, primarily, the return of his
    deposit.

[6]

The vendors moved for
    summary judgment on their claim and the counterclaim. On February 20, 2020, a
    motion judge granted the motion in favour of the vendors on both the primary
    claim and counterclaim.

[7]

The motion judge held
    that the purchaser repudiated the transaction and was not justified in doing
    so. The motion judge observed that the vendors provided to the purchasers real
    estate agent a document purporting to be a survey, nearly five months before
    the correspondence on behalf of the purchaser was sent declaring the APS null
    and void. He noted that the purported survey was signed by an Ontario land surveyor
    and dated. The motion judge recognized that this survey was bare-bones and
    did not show the current location of the items listed in the survey term of the
    APS. In his view, however, the purchaser was not entitled to repudiate the deal
    on this basis because a more detailed, original survey was in no way essential
    to the transaction.

[8]

The purchaser asks this
    court to set aside the motion judges decision. He raises several grounds of
    appeal.

ANALYSIS

[9]

First, the purchaser
    argues that the motion judge did not consider the vendors failure on the
    motion to plead or argue compliance with the survey term of the APS. We
    disagree. A fair reading of the vendors reply and defence to counterclaim, as
    well as their factum in the court below, does not disclose any deficiency in
    the vendors pleadings.

[10]

Second, the purchaser
    asserts that the motion judge failed to consider the vendors admission, namely
    that they were aware that the purchaser intended to renovate the property, as
    evidence that a survey complying with Schedule A of the APS was essential to
    the transaction.

[11]

We do not accept this
    assertion. In our view, the motion judges failure to mention the admission in
    his reasons does not mean he failed to consider it. The motion judge was
    clearly alive to the purchasers submission that it was his intention to
    renovate the property. Indeed, he noted the purchasers submission that summary
    judgment was not appropriate in this case because he needed an opportunity at
    trial to adduce further evidence on his intention to do major renovations to
    the property. That submission was quite properly rejected by the motion judge.
    Whether the vendors knew that the purchaser was going to renovate the property
    had nothing to do, generally, with the purchasers ability to close the
    transaction or his alleged entitlement to repudiate the APS.

[12]

Third, the purchaser
    submits that the motion judges reasons were inadequate and failed to deal with
    the survey term. This submission has no merit. The motion judge focused on the
    survey term and provided concise reasons as to why the purchaser was not
    entitled to repudiate the APS.

[13]

Fourth, the purchaser
    contends that the motion judge failed to consider various authorities put
    forward by the purchaser, including
Domowicz v. Orsa Investments Ltd.
(1993), 36 R.P.R. (2d) 174 (Ont. Gen. Div.). In
Domowicz
, a vendor was
    late in its delivery of a survey, precluding the purchaser from arranging
    financing for the transaction. The court held that the purchaser should have
    been accommodated by a reasonable extension of the closing date, and resolved
    the issue of liability in the purchasers favour: at pp. 1, 4, 21-22, and 25.

[14]

In this case, the
    motion judge noted that the purchaser was relying heavily on
Domowicz
.
    However, the motion judge concluded that taking the purchasers position as
    high as it could be, even if the vendors did not strictly comply with the
    survey term contained in Schedule A of the APS, this would not have entitled the
    purchaser to refuse to close the transaction. This conclusion flowed from the
    fact that the survey had nothing to do with financing, zoning, or the purchasers
    ability to close the transaction. We see no basis to interfere with these findings.

[15]

Finally, the purchaser
    argues that the motion judge misconstrued evidence, including expert evidence,
    and failed to properly consider submissions by the purchaser.

[16]

We see no merit to this
    argument. The motion judge carefully reviewed the evidence and focused on
    whether the vendors alleged non-compliance with the survey term entitled the
    purchaser to repudiate the APS because it was essential to the bargain. He
    concluded that it was not. In reaching that conclusion, he considered the parties
    submissions and observed how counsel for the purchaser narrowed the analysis
    considerably when he stated that the purchasers entire case rested on the
    survey term.

DISPOSITION

[17]

For these reasons, the
    appeal is dismissed. The vendors are entitled to their costs of the appeal in
    the agreed upon amount of $7,500, inclusive of disbursements and HST
.

K.
    Feldman J.A.

David
    M. Paciocco J.A.

S.
    Coroza J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Hayward v. Hayward, 2021 ONCA 175

DATE: 20210322

DOCKET: C67890

Lauwers,
    Trotter and Zarnett JJ.A.

BETWEEN

Leslie
    Ann Hayward, as Estate Trustee and The Estate of

Jeanne
    Hayward also known as Jean Hayward

Applicants
    (Respondents)

and

Alexander William Keith Hayward
,
Shawn Hayward
,
David
    Hayward
,

Kelly Hayward and
Lori Hayward

Respondents
    (
Appellants
)

Robert J. De Toni, for the appellants

Robert A. Lewis, for the respondents

Heard: March 16, 2021 by video conference

On appeal from the judgment of Justice Stanley
    J. Kershman of the Superior Court of Justice, dated December 12, 2019, with
    reasons reported at 2019 ONSC 7083, and from the costs order, dated March 6,
    2020, with reasons reported at 2020 ONSC 1458.

REASONS
    FOR DECISION

[1]

This appeal concerns the estate of Jeanne
    Hayward. She is survived by her former husband, Alexander [Alex] Hayward, and
    their five adult children, Leslie, Shawn, David, Kelly, and Lori. (In these
    reasons we use first names to distinguish among them, not out of disrespect.)
    All five siblings were named as beneficiaries in Jeannes will, but Alex was
    not. Leslie is the estate trustee. Shawn, David, and Lori, but not Kelly, supported
    their fathers claims to various estate assets and estate funds.

[2]

Alex appeals the disposition of his claims to re
payment of a loan he made to Jeanne with
    which she bought a Chevrolet Malibu
and to ownership of
    a Montana tractor, and seeks leave to appeal the costs award. Shawn, David and
    Lori join him only in the appeal of the costs award.

The Chevrolet Malibu

[3]

Alex had claimed that although the Malibu was in
    Jeannes name, he had provided, as a loan, the cash with which it was
    purchased. The estate argued that Alex did not pay for the Malibu. The trial
    judge found that Alex had paid for Jeannes Malibu, but when he did so he was
    making a gift, not a loan. However, the estate had not argued that the money
    paid by Alex for the Malibu was a gift.

[4]

We agree with the appellant that it was not open
    to the trial judge to find that the funds Alex paid for the Malibu were a gift
    and not a loan. As Doherty J.A. noted in
Rodaro v. Royal Bank of
    Canada
(2002), 59 O.R. (3d) 74, at paras. 61-63, a trial judges reliance
    on a ground that was not argued is fundamentally unfair and potentially
    unreliable because it was not tested through the adversarial process. The law
    prescribes tests for determining when the payment of funds is a gift, but the
    trial judge did not apply or allow the parties to address those tests before
    determining that Alexs payment for the Malibu was a gift, not a loan. The
    appeal on this ground is allowed, and we remit the issue to the Superior Court
    for trial.

The Montana Tractor

[5]

Alex purchased the Montana tractor and the bill
    of sale was in his name. He paid the $1,000 down payment in cash. The balance
    of $12,560 was paid with a cheque in Leslies name. Leslie argued that the
    cheque came from her, and, since Alex never paid her back, the tractor was
    hers. Alex argued that the money actually came from Jeanne, and, because the tractor
    was in his name, he owned it. He said Jeanne probably borrowed the money from
    Leslie, but he was not sure.

[6]

The trial judge found that Alex had paid the
    initial deposit and owned the tractor. However, he found that Leslie had paid the
    balance of $12,560, which was most of the purchase price. Because there was no
    evidence Alex ever repaid her, the trial judge found that Alex owed Leslie
    $12,560.

[7]

The appellant argues that the trial judge erred
    in failing to find that repayment of the loan was time-barred under the
Limitations
    Act, 2002
, S.O. 2002, c. 24. This proceeding was started as an application
    and did not have full pleadings, but it was open to counsel to raise the
    application of the
Limitations Act
as a defence to Leslies claim. The
    trial judge cannot be criticized for failing to respond to a defence that was
    not raised by counsel. This ground of appeal is dismissed.

The Costs Award

[8]

The major issue in this appeal is the trial
    judges award of substantial indemnity costs against the appellants.

[9]

The appellants make three arguments. They argue,
    first, that the trial judges discretionary award of substantial indemnity
    costs against Alex, Shawn, David and Lori was wrong in principle. We agree with
    the trial judge that the behaviour of the appellants warranted substantial
    indemnity costs in light of Alexs misconduct. That misconduct was worthy of
    sanction under the principles in
Davies v. Clarington
    (Municipality)
, 2009 ONCA 722, 100 O.R. (3d) 66, at paras. 28-31 and 40.
    This misconduct was supported by the sibling appellants.

[10]

The trial judge noted that Alex disputed the
    authenticity of a document, signed by Jeanne and Alex as a supplement to their separation
    agreement, disposing of some assets. Its authenticity was a significant issue
    at trial and consumed time and resources. Each appellant contributed to the
    allegation that the agreement was not authentic. The trial judge noted, in his
    costs award:

[Alex] was fully supported in this position by
    Shawn, David and Lori Hayward. In addition to giving evidence in support of it
    being not authentic they also provided their own evidence claiming that it was
    fraudulent. At one point in the trial, Shawn Hayward testified that Leslie
    Hayward could have tampered with her mother's computer. Leslie Hayward claimed
    that she could not have manipulated some of the emails.

[11]

Alex and the siblings supporting him brought a motion
    on short notice to introduce an expert report regarding the authenticity of
    this document. This forced the estate to hire an expert to prove that the agreement
    was authentic. The trial judge relied on the estates expert evidence and Kellys
    testimony to find that the agreement was authentic. The implication is that
    Alex had advanced an argument that he knew to be false, which is surely good
    evidence of egregious misconduct.

[12]

The trial judge also found that Alex was
    tenacious and intransigent; that he signed the agreement, even though he
    claimed otherwise; and that he denied that Leslie paid for the Montana tractor,
    even though the cheque proved she did.

[13]

The appellants second costs argument is that
    the siblings should have been considered by the trial judge to be non-parties
    without any responsibility for costs. We reject this argument.

[14]

There is no error in the trial judges
    disposition of this issue. He found:

The Court finds that Shawn, David and Lori
    Hayward were in this together with Alex Hayward. The Court rejects [their]
    argument that the costs should be only as against Alex Hayward. The Court finds
    that Shawn, David and Lori Hayward actively participated with their father in
    these proceedings and costs consequences should apply to all of them.

On this basis, the Court finds that the
    interests of Alex Hayward are not separate from Shawn, David and Lori Hayward.

[15]

The appellants third costs argument is that the
    trial judge erred in finding
that Leslie, as trustee,
    was entitled to recover her full indemnity costs out of the estate, including
    those costs related to disputes over items solely between her and Alex. Counsel
    for the estate agrees. The parties concurred in suggesting that the range of
    costs attributable to Leslies personal disputes warrant a reduction of between
    $5,000 and $10,000 from the total award to her. We fix the amount of the
    deduction at $7,500.

[16]

Accordingly, we vary the trial judges costs
    award by reducing the remainder of costs he ordered to be paid by the estate to
    the estate trustee of $16,030.23 by $7,500. We leave the disposition of costs
    on the Malibu loan/gift issue remitted to trial including the original trial to
    the trial judge hearing the re-trial; we recognize that doing so benefits
    Leslie and the estate somewhat since the trial judges costs disposition
    includes an amount on account of this issue but it appears most efficient to
    proceed in this manner. The costs appeal is otherwise dismissed and the
    respective obligations to pay forthwith come into force.

[17]

The costs of this appeal are payable forthwith
    by the appellants to the respondents in the reduced amount of $15,000 inclusive
    of costs and disbursements, to reflect the appellants partial success.

P.
    Lauwers J.A.

Gary
    Trotter J.A.

B.
    Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Heliotrope Investment Corporation
    v. 1324789 Ontario Inc., 2021 ONCA 39

DATE: 20210119

DOCKET:
M51698
    (C68123), M51699 (C68122) & M51700 (C68121)

Lauwers,
    Hourigan and Brown JJ.A.

BETWEEN

DOCKET:
    M51700 (C68121)

Heliotrope
    Investment Corporation

Plaintiff

(Respondent)

(Moving
    Party)

and

1324789 Ontario Inc., Martha Lorraine Beach, Johnathan Gary

Beach
    and 1073650 Ontario Inc.

Defendants

(Appellants)

(Responding Parties)

and

1324789 Ontario Inc., Martha Lorraine Beach, Johnathan Gary

Beach
    and 1073650 Ontario Inc.

Plaintiffs by Counterclaim

(Appellants)

(Responding Parties)

and

Canadian Western Trust Company (In Trust for RRSP Plan

Number #10084752 and Plan #10084190), Heliotrope Investment

Corporation, Magenta Capital Corporation and Magenta

Mortgage
    Investment Corporation

Defendants by Counterclaim

(Respondents)

(Moving
    Parties)

AND
    BETWEEN

DOCKET: M51699 (C68122)

Canadian Western Trust Company

(In
    Trust for RRSP Plan Number #10084752 and Plan #10084190)

Plaintiff

(Respondent)

(Moving
    Party)

and

1324789 Ontario Inc., Martha Lorraine Beach, Johnathan Gary

Beach and 1073650 Ontario Inc.

Defendants

(Appellants)

(Responding Parties)

and

1324789 Ontario Inc., Martha Lorraine Beach, Johnathan Gary

Beach
    and 1073650 Ontario Inc.

Plaintiffs by Counterclaim

(Appellants)

(Responding Parties)

and

Canadian Western Trust Company (In Trust for RRSP Plan

#10084752 and Plan #10084190), Heliotrope Investment

Corporation, Magenta Capital Corporation and Magenta

Mortgage
    Investment Corporation

Defendants by Counterclaim

(Respondents)

(Moving Parties)

AND
    BETWEEN

DOCKET: M51698 (C68123)

Canadian Western Trust Company (Incorporation No. A46845),

In
    Trust for RRSP Plan Number #10084752 and Plan #10084190

Plaintiff/Defendant by Counterclaim

(Respondent)

(Moving Party)

and

1324789 Ontario Inc., 1073650 Ontario Inc., Johnathan Gary

Beach
    and Martha Lorraine Beach

Defendants/Plaintiffs by
    Counterclaim

(Appellants)

(Responding Parties)

Eric Lay,
for the moving parties

No one appearing for the responding
    parties

Heard: January 18, 2021 by video
    conference

REASONS
    FOR DECISION

[1]

On consent, the motion is dismissed with costs reserved to the
    panel hearing the appeal.

P. Lauwers J.A.

C.W. Hourigan J.A.

David Brown J.A.

.