COURT OF APPEAL FOR ONTARIO

CITATION:

Mihoren v. Quesnel, 2021 ONCA 898

DATE: 20211216

DOCKET: C68997

Brown, Roberts and
    Zarnett JJ.A.

BETWEEN

Cherie
    Anne Marie Mihoren

Applicant
    (Appellant)

and

Alan Quesnel

Respondent (Respondent)

Michael Zalev and Kristy Warren, for the appellant

Samuel Mossman, for the respondent

Heard: June 30, 2021 by video conference

On appeal from the order of Justice Pamela
    L. Hebner of the Superior Court of Justice, dated December 11, 2020,
with reasons at 2020 ONSC 7724
.

Zarnett J.A.:

OVERVIEW

[1]

The appellants application for payment of
    support by the respondent was administratively dismissed under r. 41(6) of the
Family
    Law Rules
, O. Reg. 114/99. The appellant missed a deadline, that her lawyer
[1]
had neglected to diarize, by
    which certain steps had to be taken.

[2]

The motion judge refused to set aside the
    dismissal order and re-instate the application so that it could be determined
    on its merits.

[3]

For the reasons that follow, I would allow the appeal
    and set aside the dismissal order.

[4]

A decision whether to set aside an
    administrative dismissal involves an exercise of discretion guided by certain
    principles. Relevant factors include whether there is an explanation for the
    delay, whether the dismissal arose due to inadvertence, whether the motion to
    re-instate the proceeding was brought promptly, and whether there is prejudice.
    These factors are not, however, to be viewed as a series of rigid hurdles for
    the moving party to meet. Rather, a contextual approach is to be taken. The
    overall question is whether it is just to uphold the dismissal in all of the
    circumstances, weighing two competing policy objectives: the objective that
    proceedings should be determined on their merits, and the objective that
    proceedings should be resolved in a timely and efficient manner to maintain
    public confidence in the administration of justice.

[5]

In my view, the motion judge made errors in
    principle which, in this case, justify appellate interference with her exercise
    of discretion.

[6]

The motion judge properly found that there had
    been a delay in moving the application forward for which no adequate explanation
    was offered; however, she in essence treated that factor as a rigid unmet
    hurdle. Although she noted that the dismissal arose due to inadvertence of the appellants
    lawyer, and that the appellants motion to set aside the dismissal order was
    brought promptly, she failed to ascribe any significance to those factors, and erred
    in her analysis of prejudice. She failed to take the proper contextual approach
    and to consider the policy
favouring
the resolution of this
    proceeding on its merits. Moreover, after recognizing that the absence of a
    limitation period for support claims meant that the appellant could start a new
    proceeding, she failed to consider how upholding the dismissal would actually advance
    the goal of timely and efficient resolution.

[7]

On a proper consideration of all the circumstances,
    the dismissal should have been set aside.

PROCEDURAL HISTORY

(1)

Steps in 2017-2018

[8]

On October 23, 2017, the appellant commenced an
    application for spousal support against the respondent. She alleged that,
    although she and the respondent were not married, they had cohabited
    continuously between 2005 to 2016 and were therefore spouses with support
    entitlements and obligations under Part III of the
Family Law Act
, R.S.O. 1990, c. F.3
.

[9]

The respondent filed an answer in December 2017.
    He disputed the appellants characterization of their relationship and that
    they had cohabited continuously for over three years (the relevant time period
    to trigger spousal status under Part III of the
Family Law Act
:

s.
    29). Therefore, he denied that she had any entitlement to support from him, as
    she lacked the status of a spouse.

[10]

There was activity in the litigation in 2018.
    The parties attended a case conference in March 2018. The lawyer for the
    appellant arranged for questioning and cross-examination on financial
    statements to take place. The respondents questioning was, at his counsels
    request, scheduled to accommodate his travels outside of Canada, and was
    completed on October 29, 2018. The appellants questioning was completed on
    November 1, 2018.

[11]

In early November 2018, the lawyers for the
    parties exchanged correspondence. The appellants lawyer provided certain documents
    and indicated that the appellant was in the process of collecting other
    information and documents relating to undertakings given on her questioning. He
    also demanded certain productions from the respondent; when they were not
    forthcoming, he indicated he would bring a motion.

(2)

The Deadline for
    Dismissal

[12]

As the appellants case was not in the Family
    Court of the Superior Court of Justice, r. 41 of the
Family Law Rules
applied.

[13]

On October 26, 2018, a clerk of the Superior
    Court sent a notice of approaching dismissal under r. 41(5) of the
Family
    Law Rules
, as the case had not been settled, withdrawn, or scheduled for
    trial within 365 days of its commencement. The notice provided that the clerk
    would dismiss the case unless, within 60 days (that is, by December 27, 2018), one
    of the steps specified in r. 41(6) of the
Family Law Rules
was
    taken. Those steps are: obtaining an order lengthening time, filing an
    agreement for a final order disposing of all issues and a notice of motion to
    carry out the agreement, serving a notice of withdrawal discontinuing the case,
    scheduling the case for trial, or arranging a case conference or settlement
    conference for the first available date.

[14]

One of those steps  obtaining an order lengthening
    time  was taken. The court made an order on December 6, 2018, on the consent
    of the parties, extending the time for dismissal that had been specified in
    the notice to October 25, 2019. In other words, October 25, 2019 became the new
    deadline by which one of the steps in r. 41(6) had to be taken to avoid
    dismissal of the application by the clerk.

[15]

Notwithstanding the importance of this deadline,
    the appellants lawyer did not diarize it, due to what the motion judge
    accepted was inadvertence.

(3)

2019 and the
    Administrative Dismissal

[16]

The appellant gave evidence that she met with
    her lawyer in February 2019. He told her to prepare a list of witnesses who
    would have to meet with him and provide signed statements. She prepared such a
    list and was directed by her lawyer to contact witnesses and arrange
    appointments for them to meet with him. Some witnesses provided statements over
    the next several months, while others were unwilling to get involved. The
    appellant acknowledged that the compilation of a final witness list for a
    settlement conference was delayed.

[17]

However, the only communication between counsel
    in 2019, prior to the new dismissal date, was a letter dated July 6, 2019, in
    which counsel for the respondent wrote to the appellants lawyer, listing the
    undertakings given on the appellants questioning, and requesting answers by
    the end of the month.

[18]

That letter was not answered, and prior to
    October 25, 2019, none of the steps specified in r. 41(6) to prevent dismissal of
    the action were taken.

[19]

Accordingly, on October 26, 2019, the court
    issued an order under r. 41(6) of the
Family Law Rules
, dismissing the
    appellants application.

(4)

The Motion to Set
    Aside

[20]

The appellants lawyer received the dismissal
    order in November 2019; shortly afterwards, there was a fire at his office
    building, delaying his access to files and equipment.

[21]

The appellant brought a motion to set aside the
    dismissal order under r. 41(9) on February 27, 2020, returnable March 20,
    2020. As a result of the pandemic, the motion could not be heard until August
    14, 2020.

[22]

The motion was supported by an affidavit of the
    appellant which outlined the history described above, and stated that she had
    maintained her desire to proceed with her claim for support throughout, wished
    to proceed with it, and was prepared to do what is necessary to expedite the
    hearing of a Settlement Conference and thereafter expedite the Trial in this
    matter. Her lawyers assistant swore an affidavit that she had inadvertently
    failed to diarize the date for dismissal of October 25, 2019, that her
    office had continued to process the Application  to October 25
th
,
    2019, and that at no time was she given any indication by the appellant or her
    lawyer that the appellants claims were not being pursued.

[23]

The respondent also swore an affidavit. Among
    other things, he swore that he was told by his lawyer of the dismissal order on
    November 4, 2019 and that the appellant had to move expeditiously to set it
    aside if it came about inadvertently and she wished to continue with her
    Application.
He also stated that [a]s time passed,
    [he] came to believe that the matter was finished, that the Application has
    been a source of stress and aggravation for [him], and that he was pleased
    and relieved when in late 2019 [he] came to believe that it was over.

(5)

The Motion Judges
    Decision

[24]

The motion judge referred to the onus on family
    law litigants to move cases forward in a timely manner, with the expectation
    set by rr. 41(5) and (6) that they will be resolved or scheduled for trial
    within a year. She noted that the timelines exist for a purpose, related to the
    invasive nature of family law litigation and the burden it often places on
    parties, and that the court should not rubber-stamp requests to set aside
    administrative dismissals. She referred to case law from this court, including
H.B.
    Fuller Company v. Rogers (Rogers Law Office)
, 2015 ONCA 173, 386
    D.L.R. (4th) 262, that set out the principles to be considered when deciding whether
    to set aside an administrative dismissal in civil cases under r. 48 of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194. She accepted that the civil approach
    should inform the approach to an administrative dismissal under the
Family
    Law Rules
, within the context of the primary objective of those rules, dealing
    with cases justly: r. 2(2).

[25]

The motion judge then proceeded to consider what
    was referred to in the case law as the four
Reid
[2]
factors, as they applied to
    the facts. The
Reid
factors are: whether there was an explanation for
    the delay that led to the dismissal order, whether the deadline set out in the
    notice was missed due to inadvertence, whether the motion to set aside the
    dismissal was prompt, and whether there has been prejudice to the responding
    party.

[26]

On the first
Reid
factor, she found
    that the appellant had not provided an adequate explanation of the litigation
    delay that followed the extension, in late 2018, of the deadline for dismissal.
    On the second, she accepted the evidence of the appellants lawyers legal
    assistant that she had inadvertently failed to diarize the dismissal date of
    October 26, 2019, and that the appellant had been in touch with her lawyers
    office up to that date and never indicated an intention to discontinue her
    proceeding. The motion judge considered that to be an explanation as to why the
    lawyers office did not deal with the case when the dismissal date was
    approaching, but not an explanation as to why no real steps were taken in the
    12 months prior to the dismissal date.

[27]

On the third
Reid
factor  whether the
    motion to set aside the dismissal order was brought promptly  she noted that respondents
    counsel fairly concedes that this factor has been met.

[28]

Turning to the fourth
Reid
factor, the
    issue of prejudice, she stated that no limitation period had expired (there
    being none for a support claim
[3]
)
    and a new claim could be brought. She considered the only prejudice to be that
    arising from the passage of time. Although she noted that there was no
    indication that evidence had been lost by the passage of time, she said it can
    be presumed that a witnesss recollections will be somewhat dimmed.

[29]

The motion judge returned to the issue of the
    appellants delay after the 2018 order extending time, stating that thereafter,
    [s]he displayed  inertia, at best, or a complete lack of interest, at worst,
    and noting the lack of an adequate explanation for that delay. She concluded:

Under all of the circumstances of this case, even though the
    only identifiable prejudice to the respondent is the passage of time, I am not
    prepared to set aside the dismissal order. I recognize that, without the
    passage of a limitation period, the [appellant], should she choose to, can
    issue a new claim. Even though that is true, I find I cannot countenance her
    delay in the case currently before the court by setting aside the dismissal
    order.

LEGAL FRAMEWORK

(1)

The Relevant Rules

[30]

Rules 2(2)-(4) of the
Family Law Rules
provide that:

(2) The primary objective of these rules is to enable
    the court to deal with cases justly.

(3) Dealing with a case justly includes,

(a) ensuring that the procedure is fair to all
    parties;

(b) saving expense and time;

(c) dealing with the case in ways that are
    appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case
    while taking account of the need to give resources to other cases.

(4) The court is required to apply these rules to
    promote the primary objective, and parties and their lawyers are required to
    help the court to promote the primary objective.

[31]

Rule 41 provides in relevant part as follows:

(5) The
    clerk shall serve a notice of approaching dismissal (Form 39) for a case on the
    parties by mail, fax or email if the case has not been settled, withdrawn or
    scheduled or adjourned for trial before the 365th day after the date the case
    was started.

(6) A case for which a notice of approaching
    dismissal has been served shall be dismissed without further notice, unless one
    of the parties, within 60 days after the notice is served,

(a) obtains an order under subrule (3) to lengthen
    that time;

(b) files an agreement signed by all parties and
    their lawyers, if any, for a final order disposing of all issues in the case,
    and a notice of motion for an order carrying out the agreement;

(c) serves on all parties and files a notice of
    withdrawal (Form 12) that discontinues all outstanding claims in the case;

(d) schedules or adjourns the case for trial; or

(e) arranges a case conference or settlement
    conference for the first available date.

(6.1) If a case conference or settlement conference
    is arranged for a date as described in clause (6) (e), but the hearing does not
    take place on that date and is not adjourned by a judge, the case shall be
    dismissed without further notice.

(6.2) The clerk shall dismiss a case under subrule
    (6) or (6.1) by preparing and signing an order dismissing the case, with no
    costs payable by any party.

(9) A judge may, on motion, set aside an order of the
    clerk under subrule (6).

(2)

The Standard of Review

[32]

The standard of review on an appeal from an
    order refusing to set aside an administrative dismissal of an action under the
Rules
    of Civil Procedure
is well-established. That standard recognizes that such
    an order is discretionary and entitled to deference on appeal. Appellate
    interference is justified only if the motion judge proceeded on an erroneous
    legal principle or made a palpable and overriding error with respect to the facts
     [or] where the lower court gives no or insufficient weight to relevant
    considerations:
Fuller
, at para. 19.

[33]

The appellant submits, and the respondent did
    not contest, that the same standard of review should apply to the review of a
    refusal to set aside an administrative dismissal under the
Family Law Rules
.
    I agree.

DISCUSSION

(1)

The
Fuller
Principles Apply to Family Law Administrative Dismissals

[34]

I agree with the motion judge that the
    principles derived in the context of civil cases, such as
Fuller
, are appropriate
    to inform the approach to motions under r. 41(9) of the
Family Law
    Rules
. Although the motion judge went on to state that those principles must
    be considered in the context of the primary objective of the
Family Law
    Rules
,
as described in rr.
    2(2)-(4), I do not read the motion judge to have been suggesting that this
    justified a departure from the approach in
Fuller
. In any event, in my
    view, there is nothing inconsistent between the
Fuller
principles and
    the fulfillment of the primary objective of the
Family Law Rules
, dealing with cases justly
.

[35]

Fuller
holds,
    at para. 20, that on a motion to set aside an administrative dismissal, the
    court should consider the
Reid
factors: the length of the delay and whether
    there is an explanation for it, whether the failure to meet mandated time
    limits was due to inadvertence, whether the motion to set aside the dismissal
    order was brought promptly, and whether delay has prejudiced the responding
    party.

[36]

But
Fuller
makes it clear that these
    factors are not to be treated as a rigid set of hurdles the moving party must
    meet. Instead, an overall contextual approach is required that takes into
    account those factors and all of the relevant circumstances, including the
    conduct of both parties. The goal is to reach a just result, bearing in mind
    two underlying principles that can be in tension: (i) that actions should be
    decided on their merits, and (ii) that actions should be resolved in a timely
    and efficient manner to maintain public confidence in the administration of
    justice:
Fuller
, at paras. 21-25.

[37]

Fuller
also
    explains that, in general, the courts preference will be to decide matters on
    their merits. This preference will be more pronounced where delay results
    from an error of counsel, so as not to penalize a client for inadvertence of
    their lawyer. The rights of all parties must be considered, including whether
    the defendant has suffered non-compensable prejudice as a result of the delay,
    whether a fair trial is still possible, and whether the defendant placed
    justifiable reliance on the termination of the proceeding:
Fuller
, at
    paras. 25-28.

[38]

Giving effect to these principles is consistent
    with the primary objective of the
Family Law Rules
: that the court
    deal with cases justly. An administrative dismissal order is a result
    contemplated by the
Family Law Rules
and recognizes the policy that
    family law cases should be resolved in a timely and efficient manner to
    maintain public confidence in the administration of justice. But the

Family
    Law Rules
also empower a judge to make an order setting aside an
    administrative dismissal, recognizing the policy that cases should be decided
    on their merits. Whether the primary objective is better served in a particular
    case by setting aside the dismissal order and allowing the case to be
    determined on its merits, or by leaving the dismissal order in effect because
    procedural rules were violated, is appropriately guided by the
Fuller
principles, which address exactly that question  whether upholding or setting
    aside the dismissal is just in all of the circumstances.

(2)

The Motion Judge
    Erred in Applying the
Fuller
Principles

[39]

In my view, the motion judges approach involved
    three interrelated errors in principle. First, she failed to contextually
    evaluate the
Reid
factors as
Fuller
requires, essentially
    treating one as a rigid hurdle and giving no effect to two others. Second, she
    gave erroneous treatment to the factor of prejudice. Third, she failed to
    properly consider whether upholding the dismissal order constituted a just
    result in all of the circumstances, by misapplying the policy
favouring
timely resolution of family law proceedings and not properly
    considering the policy that
favours
proceedings being
    determined on their merits.

(i)

The Motion Judge Ignored Two Factors Rather than Treating the Factors
    Contextually

[40]

The motion judge was entitled to find that there
    was no adequate explanation for the lack of activity in moving the case forward
    after 2018. She was right to note that, prior to the administrative dismissal, answers
    to undertakings given at the appellants questioning were not provided, no
    response was made to the letter of respondents counsel seeking answers, and no
    motion was brought for production from the respondent as her lawyer had, in
    2018, indicated. However,
Fuller
is clear that the factor of delay
    without an adequate explanation is not to be approached as a rigid obstacle the
    appellant must meet, but rather a factor, among others, to be considered
    contextually.

[41]

One of the important contextual factors is
    whether a dismissal was the result of inadvertence.
Proper
    consideration of this factor may require separating the issue of overall delay
    from the precise reason a dismissal occurred.

[42]

The motion judge accepted the evidence of the
    appellants lawyers assistant that she had inadvertently neglected to diarize
    the October 2019 dismissal date, and that this explained why the appellants lawyer
    did not deal with the case as the dismissal date was approaching. The appellant
    points out, and the respondent does not dispute, that the appellants lawyer
    could have dealt with the matter and prevented the dismissal from occurring at any
    time before the dismissal deadline simply by taking the step of arranging a
    case conference or settlement conference for the first available date, as
    contemplated by r. 41(6)(e). Family law conferences are intended to
    significantly move cases forward and are an essential part of the family law
    procedural regime aimed at attaining a just result. At a conference, a judge
    may make orders about disclosure, expert evidence, and time-tabling, as well as
    direct the parties towards out-of-court settlement of some or all issues:
Family
    Law Rules
, r. 17(8).

[43]

In other words, although there was a litigation
    delay, the effect of it could have been avoided at any time up to October 2019,
    but was not, due to lawyers inadvertence. This was significant, for two
    related reasons.

[44]

First, both the existence of a procedural step
    that could get an action back on track and avoid dismissal resulting from
    delay, and the reason why it was not taken, are relevant to whether it is just
    in the circumstances to uphold a dismissal, especially where such a procedural
    step is a codified option under the
Family Law Rules
. In
Fuller
,
    the plaintiffs action was not expeditiously pursued. A status notice warning the
    plaintiffs of impending dismissal was sent by the court to the wrong address.
    The action was administratively dismissed. The motion judge refused to set aside
    the dismissal, remarking that the plaintiffs, even if they had received the
    status notice and arranged a status hearing, would not have been able to meet
    the test at the status hearing of showing that the action should not be
    dismissed. This court held that the motion judge had erred in failing to
    consider that, because of the non-receipt of the status notice, the plaintiffs
    had lost an opportunity to prevent the action from being dismissed. This loss
    of opportunity had to be considered in assessing whether it was just to set
    aside the dismissal order:
Fuller
,

at paras. 33-36.

[45]

Second, the preference of the court for deciding
    matters on their merits, as opposed to terminating actions on procedural
    grounds, is all the more pronounced where an error of inadvertence of counsel
    is involved:
Fuller
, at paras. 26-27 and 32.

[46]

The motion judge did not consider either of
    these points. After accepting that lawyers inadvertence was the explanation
    for why no step was taken to deal with the approaching dismissal, she did not
    refer to the loss of the opportunity the appellant had to avoid dismissal and
    get the application back on track by requesting a case or settlement conference.
    Nor did she refer to the significance of the lawyers inadvertence having made
    the courts preference for the determination of the matter on its merits more
    pronounced. Instead, she immediately returned to the factor of litigation
    delay, concluding the lawyers explanation for why no step was taken to deal
    with the approaching dismissal deadline did not explain the delay that had
    occurred in the litigation during the prior year. In effect, she ignored the
    significance of the fact that the deadline was missed due to lawyer
    inadvertence and treated the prior delay as the only relevant factor.

[47]

Similarly, on the factor of whether a motion was
    brought promptly to set aside the dismissal order, the motion judge noted that
    the respondent fairly concedes that this factor has been met.
[4]
But the motion judge did not
    further discuss what that signified or give it any weight. She did not consider
    this factor as one which bore on the justice of setting aside the dismissal
    order because, unlike the delay that preceded the dismissal, it was not
behaviour
which showed either inertia or a lack of interest in having the
    matter resolved on its merits. Nor did she consider its effect on the issue of
    prejudice, discussed below.

(ii)

The
    Motion Judge Erred in Her Analysis of Prejudice

[48]

The issue of prejudice to the respondent is an
    important one in deciding whether a dismissal order should be set aside or
    remain in place.
It is a key, if not
the
key
    consideration:
Chrisjohn v. Riley
, 2015 ONCA 713, 391 D.L.R. (4th)
    695,

at para. 36 (emphasis in original).
The court should consider
    whether there is prejudice to the defendants ability to defend  that is, whether
    a fair trial is still possible  because of events or steps that occurred
    following the dismissal or that would result from restoring the action. The
    court will also consider whether delay in moving to set aside the dismissal was
    so great that the principle of finality and the defendants reliance on the
    dismissal should prevail:
Fuller
, at paras. 37-45.

[49]

Here, there was no evidence of actual prejudice
    affecting fair trial rights. The respondent led no evidence of any witness or
    document that had become unavailable. The motion judge stated that there is no
    indication that evidence has been lost by the passage of time.

[50]

In a proper case, prejudice may be presumed, for
    example, because of the expiry of a limitation period or the death of a
    witness:
Fuller
, at para. 38. Neither circumstance was present here.
    The motion judge identified the only prejudice to be the passage of time. She
    appears to have considered this to support a presumption of prejudice because
    it can be presumed that a witnesss recollections will be somewhat dimmed by
    the passage of time, and because the existence of a family law case may mean that
    the parties are unable to move forward with their lives until it is completed.

[51]

In my view, the motion judge erred in both
    respects. While in certain circumstances, the passage of significant time could
    result in prejudice, the motion judge did not relate her finding about the
    effect of the passage of time on witnesses memories to the period of
    approximately four months between the dismissal order and the filing of the motion
    to set it aside. She did not explain how witnesses memories would diminish during
    that period. In other words, she did not explain how the respondent would be
    worse off, from the standpoint of witnesses ability to recall, than he was
    before the dismissal. Nor did she make any finding that fair trial rights were
    affected. Accordingly, this finding of prejudice is tainted by legal error and
    cannot stand.

[52]

The finding of prejudice due to the nature of
    family law proceedings is also tainted by error. The motion judges comment to
    the effect that in some cases, the mere existence of a family law proceeding
    prevents parties from moving forward with their lives could not be applied to
    this case without evidence that the respondent had been so affected. Although
    he gave evidence that the proceeding was stressful and he was relieved that it
    was over, he gave no evidence that he was unable to move on with his life if it
    continued. Indeed, during the litigation, his counsel had taken the position
    that his net worth, as disclosed on his Financial Statement, was so significant
    that he could afford any amount of support that would be ordered, and the only
    issue was entitlement.

[53]

Moreover, the motion judge noted that the factor
    that the motion be brought promptly was met. She made no finding that the
    respondent was entitled to rely on the security of the dismissal order under
    the principle of finality, by reason of the appellants delay in moving to set
    aside the dismissal.
Accordingly, the oppressive
    nature of family law proceedings (to use the motion judges term) is not a
    prejudice caused by the dismissal and subsequent restoration of the proceeding.

[54]

Additionally, the motion judge stated that since
    no limitation period had expired, the appellant could, if she chose, start
    another proceeding. But she failed to address the significance of that: if a
    new proceeding could be brought, upholding the dismissal order would not remedy
    either fading memories or lack of closure for the parties, the impacts the
    motion judge referred to as arising from the passage of time.

[55]

As the court noted in
Williams v. Williams
,
    2010 ONSC 2636, 82 R.F.L. (6th) 448, at para. 19, there must be compelling
    reasons not to grant the order [setting aside the dismissal] if there is no
    prejudice to the defendant (see also,
MDM Plastics Limited v.
    Vincor International Inc.
, 2015 ONCA 28, 124 O.R. (3d)
    420, at para. 24). Here, there was no prejudice to the respondent.

(iii)

The Motion Judge Failed to Consider Whether Setting Aside the Dismissal
    Was Just in All the Circumstances

[56]

The motion judge referred to passages from
Fuller
,
including the statement that all of
    the circumstances of the case must be considered in order to arrive at a just
    result. Although she expressed her conclusion including the term the
    circumstances, she did not appropriately consider the circumstances as noted
    above. Nor did she expressly advert, in reaching her conclusions, to the policy
    that actions should be decided on their merits:
Fuller
, at paras. 23-26.
    Instead, she stressed that the timelines in the
Family Law Rules
are
    in place for a reason, and that even though the only prejudice was the passage
    of time, the appellants delay could not be countenanced.

[57]

The motion judge was entitled to consider that
    the
Family Law Rules
are in place for a reason, and that there was
    unexplained delay. But she was also obligated to consider that the
Family
    Law Rules
contemplate the setting aside of dismissal orders where it is
    just to do so, and that the factors and policies implicated in such a decision
    go beyond these considerations. She failed, as described above, to take into
    account the appropriate factors contextually, and then failed to consider
    whether the preferred policy of allowing actions to be determined on their
    merits should
in this particular case
bow to
    considerations of timely administration of justice in accordance with the
Family
    Law Rules
. Furthermore, she did not explain how upholding the administrative
    dismissal given the ability to start a new proceeding was consistent with the
    goal of saving time and expense in accordance with the primary objective of the
Family Law Rules
: r. 2(3)(b).

(iv)

Re-Weighing

[58]

Due to these errors, it is necessary to re-weigh
    the factors and consider whether it is just to uphold the dismissal order. In
    my view, the just result is to set aside the dismissal order.

[59]

Although the litigation delay between late 2018
    and the dismissal order was not adequately explained, the appellant had the
    opportunity to get the application back on track in a manner contemplated by
    the
Family Law Rules
, by arranging a case conference or settlement
    conference. She lost that opportunity due to her lawyers inadvertence. It
    would not be just to visit that loss of opportunity on her. She moved promptly
    enough to set aside the dismissal order that her right to proceed with her
    claim ought not, in the circumstances, yield to what under other circumstances
    might be the respondents right to rely on the finality of the dismissal. There
    is no prejudice to the respondent and no basis to conclude that his fair trial
    rights have been compromised.
[5]
Moving this proceeding to a family law conference is more consistent with both
    the goals of deciding the case on its merits and achieving a timely and
    efficient resolution than the alternative of upholding the dismissal and
    allowing the appellant to start a new proceeding.

CONCLUSION

[60]

In her factum, the appellant undertakes that if
    her appeal is allowed, she will immediately schedule the first available date
    for a Settlement Conference  and ask the Settlement Conference judge to
    schedule the case for trial as quickly as possible. For the reasons above and
    in light of that undertaking, I would allow the appeal, set aside the order of
    the motion judge, and replace it with an order setting aside the dismissal
    order and directing that within 30 days of the release of these reasons, the
    appellant shall take the step set out in r. 41(6)(e). If she does not do so, her
    application shall be dismissed.
[6]

[61]

In accordance with the agreement between the
    parties, I would award costs of this appeal to the appellant in the sum of
    $5,000, inclusive of disbursements and applicable taxes. In light of the
    disposition of the appeal, the motion judges costs order in
favour
of the respondent will also be varied, on consent, to provide that
    the respondent pay the appellant $2,500 in costs for the motion, all-inclusive.

B. Zarnett J.A.

I agree. L.B. Roberts
    J.A.

Brown J.A. (dissenting):

[62]

I strongly disagree with the disposition of this
    appeal proposed by my colleagues. In my view, there is no basis to interfere
    with the motion judges dismissal of Ms. Mihorens motion to set aside the
    October 26, 2019 administrative dismissal order (the Dismissal Order) of her
    application for spousal support.

[63]

In
R. v. G.F.
, 2021 SCC 20, 71
    C.R. (7th) 1, the majority of the Supreme Court recalled, for the benefit of
    intermediate appellate courts, the importance of a functional and contextual
    reading of a lower courts reasons and directed appellate courts to resist the
    temptation to finely parse a judges reasons in search of error: at para. 69.
    In my respectful view, my colleagues have run afoul of that direction.

[64]

As my colleagues note, the motion judges order
    was discretionary and entitled to deference on appeal. My colleagues
    acknowledge that the motion judge accurately stated the applicable principles
    of law as set out in
H.B. Fuller Company v. Rogers (Rogers Law Office)
,
    2015 ONCA 173, 386 D.L.R. (4th) 262, and
Reid v.
    Dow Corning Corp.
(2001), 11 C.P.C. (5th) 80 (Ont.
    S.C.), revd on other grounds (2002), 48 C.P.C. (5th) 93 (Ont. Div. Ct.).
Nevertheless, they justify interfering with her order on the basis
    that the motion judge erred in applying those principles and failed to give the
    same weight to certain considerations as my colleagues would.

(1)

The motion judge recognized and applied the overarching big picture
    principles

[65]

Two of the alleged errors in principle
    identified by my colleagues are that the motion judge failed to contextually
    evaluate the
Reid
factors and failed to properly consider whether
    upholding the Dismissal Order would constitute a just result in all the
    circumstances. Since both alleged errors concern the big picture framework
    within which the motion judge was required to perform her analysis, I will
    consider them together.

[66]

I see no such errors.

[67]

To my eye, my colleagues disagreement with the
    motion judge essentially stems from their different view of the significance of
    the litigation obligation the appellant failed to meet in this case, which
    resulted in the dismissal of her application. My colleagues open their reasons
    by stating: The appellant missed a deadline, that her lawyer had neglected to
    diarize, by which certain steps had to be taken.

[68]

With respect, much more was involved than
    missing a mere deadline by which certain steps had to be taken. On this
    point, I regard the motion judges reasons as more realistically assessing the
    significance of the appellants litigation failure.

[69]

The
Family Law Rules, O. Reg. 114/99,
take a more aggressive approach to in and out of court times for cases than
    do the somewhat somnambulant
Rules of Civil Procedure
under which an
    administrative dismissal of a civil action is not triggered until the fifth
    anniversary of its commencement:
Rules of Civil Procedure
, R.R.O.
    1990, Reg. 194, r. 48.14(1). By contrast, r. 41(5) of the
Family Law
    Rules
directs the issuance of a notice of approaching dismissal if a
    family law case has not been settled, withdrawn or scheduled or adjourned for
    trial before the 365th day after the date the case was started.

[70]

The motion judge was alive to the policy of
    quicker in and out of court times chosen by the
Family Law Rules
. As
    she noted, at para. 17:

Rule 41(5) and (6) [of the
Family Law Rules
] puts an
    onus on family law litigants to move their cases forward in a timely manner.
The expectation is that the case will be resolved or scheduled
    for trial within one year.
If the litigants do not move their cases
    forward, and do not obtain a court order extending the timeline, the case will
    be administratively dismissed. [Emphasis added.]

[71]

The
Family Law Rules
aggressive in
    and out of court timeline policy informed the motion judges understanding of
    the context and the justice of the case in which to consider the appellants
    request to revive her dismissed application. As the motion judge stated, at
    para. 15:

Family law cases are, by their very nature, time sensitive.
    They frequently involve children and issues respecting child support and
    residency. They often deal with families in crisis. Family law litigation is
    invasive and outstanding family law litigation is a heavy burden on the
    litigants, both financially and emotionally. I suspect that was the reason for
    the timelines set out in the
Family Law Rules
, O. Reg. 114/99.

[72]

In this case, the appellant failed to meet the
Family
    Law Rules
fundamental expectation about the amount of time a family law
    case may tarry in the court system. She did not meet the expectation
    established by r. 41(5) that a case must be settled or scheduled for trial
    within one year of its commencement. The appellant then used r. 41(6)s
    mechanism to avoid the dismissal of her application by consenting to the
    December 6, 2018 order that granted her leave to extend the time for dismissal
    of her case to October 25, 2019 (the Consent Extension Order). Her consent to
    that order was tantamount to an undertaking to settle, withdraw or set down her
    application for trial by October 25, 2019.

[73]

The appellant did not fulfill her undertaking.
    Instead, the evidence showed that the appellant and her counsel essentially
    ignored the Consent Extension Order, without explanation. The administrative
    dismissal of her application followed.

[74]

In my view, the motion judge properly recognized
    that the appellants litigation failure was not missing a mere deadline by
    which certain steps had to be taken. Instead, the appellant failed to complete
    her application within the time stipulated by the
Family Law Rules
, as
    extended by her undertaking in the Consent Extension Order.

[75]

Accordingly, the motion judge did not fail to
    contextually evaluate the
Reid
factors. She did not lose sight of
    rendering a just result in all of the circumstances. The motion judge was
    alive to the big picture context in which to apply the analytical elements
    identified in
Fuller
and
Reid
to a family law proceeding that
    has been dismissed for delay.

[76]

My colleagues reasons essentially downplay the
    significance of the obligation that rr. 41(5) and (6) impose on family law
    litigants. In and out of court timelines, their reasons suggest, are quite
    secondary to deciding a case on the merits. In support, they point to comments
    that originated in this courts decision in
Hamilton (City) v. Svedas
    Koyanagi Architects Inc.
, 2010 ONCA 887, 104 O.R. (3d) 689, where, at
    para. 20, this court quoted with approval the lower courts comment that [a]
    courts bias is in favour of deciding matters on their merits rather than
    terminating rights on procedural grounds.

[77]

Much water has flowed under the
    access-to-justice-bridge since 2010. Chronic delays and disproportionate legal
    costs are now seen as barriers to a just civil and family court system in
    Ontario. The decisions in
Hryniak v. Mauldin
, 2014 SCC 7,
    [2014] 1 S.C.R. 87 and
R. v. Jordan
, 2016 SCC 27, [2016] 1 S.C.R.
    631 have forced Ontario courts to rethink their traditional
laissez-faire
attitude toward the time
    it takes to move cases from their start to a final disposition on the merits.

[78]

In
Jordan
, the Supreme Court decried
    the culture of complacency towards delay that had emerged in the criminal
    justice system: at para. 40. An equally virulent culture of complacency towards
    delay is deeply embedded in Ontarios civil and family justice systems. The
    presumptive in and out of court in one year baseline for family law cases
    created by r. 41(5) of the
Family Law Rules
, coupled with the limited
    exceptions to that baseline enumerated in r. 41(6), represents an effort to
    root out that culture of complacency in the family law system. That presumptive
    one-year in and out of court timeline provides the overarching context in
    which any motion judge must consider an applicants request to revive an
    administratively dismissed family law proceeding and determine what order would
    be just in all the circumstances.

[79]

The motion judges reasons disclose that she
    identified and applied that overarching big picture context when considering
    the appellants motion to revive her dismissed application. The starting point
    of her analysis was faithful to the legislative scheme for family law
    proceedings. She did not make the errors in principle attributed to her by my
    colleagues.

(2)

The motion judge was entitled to emphasize the appellants unexplained
    delay

[80]

My colleagues contend that the motion judge
    failed to properly consider the appellants explanation for her failure to
    fulfill the Consent Extension Order. Instead, [i]n effect, she ignored the
    significance of the fact that the deadline was missed due to lawyer
    inadvertence and treated the prior delay as the only relevant factor: at para.
    46.

[81]

While my colleagues focus their analysis on the
    consequences (if any) of the failure of the appellants lawyer to diarize the
    completion date set by the Consent Extension Order, the motion judges reasons
    disclose that she undertook a much broader review of the record. That broader
    review led her to conclude that the appellant had not provided an acceptable
    explanation for her delay. Specifically, the motion judge took into account
    that:

i.

The appellant failed to comply with her undertakings in anything
    resembling a timely manner. The appellant was provided with a list of her
    undertakings on November 2, 2018, yet [s]he took no steps to comply with those
    undertakings until July or August of 2020. The motion judge noted that the
    undertakings were straightforward and should have been answered relatively
    easily within 60 days of the completed examinations, but [t]hey were not, and
    there is no explanation for the delay;

ii.

The appellant never brought the motion for better income disclosure that
    her counsel advised the respondent in November 2018 they intended to bring;

iii.

After her counsels letter of November 2018, the appellant took no
    steps to advance the litigation until after the administrative dismissal
    order dated October 26, 2019. The applicant had already been granted an
    extension, yet did nothing in the ten months following;

iv.

The appellants evidence that she met with her counsel in February 2019
    to discuss the case left the motion judge with more questions than answers as
    it did not explain why certain litigation tasks the appellant referred to were
    never completed; and

v.

Respondents counsel wrote to appellants counsel on July 6, 2019
    repeating his request for answers to undertakings, but his letter was ignored
    by the appellant and her counsel. As the motion judge stated: There is no
    explanation for the failure to respond to [respondents counsels]
    correspondence of July 6, 2019.

[82]

Those numerous failures led the motion judge to
    conclude that the appellant has not provided an adequate explanation of the
    litigation delay that led to the dismissal order.

[83]

Only then did the motion judge assess the effect
    of the failure by the appellants lawyers assistant to diarize the ultimate
    dismissal date of October 25, 2019 set by the Consent Extension Order. While
    she accepted the assistants explanation of inadvertence, the motion judge
    quite properly pointed out that there was more to consider because [t]he
    assistant does not provide an explanation as to why
no
    real steps were taken in the almost 12 months
prior to the dismissal
    date (emphasis added).

[84]

Accordingly, the motion judges reasons disclose
    that the appellants failure involved more than a legal assistant neglecting to
    diarize one date, the conduct upon which my colleagues focus their attention.
    There was a much larger history of litigation delay by the appellant herself,
    as well as by her counsel and, most significantly, an absence of explanation
    from either for that larger delay.

[85]

That larger delay led the motion judge to make a
    telling finding of fact: I conclude that the applicant simply did not
    move forward with her claim after the first order was made extending the
    timelines. She displayed  inertia, at best, or a complete lack of interest, at
    worst. My colleagues do not take issue with that finding. Indeed, they cannot;
    it is firmly anchored in the evidence. This finding of fact played a large role
    in the motion judges overall analysis. The reason why it did can be found at para.
    33 of her reasons:

Under the
Family Law Rules
, once a case has already
    been extended by court order to a specific date, a new notice of approaching
    dismissal is not provided to the parties. In other words, they get one notice
    the first time their case is on the brink of being dismissed.
If an order is made extending the timelines, they do not get a
    second notice. The parties, or their counsel, are required to ensure that they
    deal with the case prior to its dismissal on the date set out in the order
.
    [Emphasis added.]

[86]

By giving that finding of fact significant
    weight in her analysis, the motion judge did not fall into reversible error. On
    the contrary, she was entitled to place more weight on that finding because, in
    so doing, she advanced the policy goals of the
Family Law Rules
and
    their aggressive approach to the in and out of court times for family law
    cases.

(3)

The motion judge did not err in her treatment of prejudice

[87]

Finally, my colleagues conclude that the motion
    judge gave erroneous treatment to the factor of prejudice.

[88]

Although the motion judge acknowledged there was
    no indication that evidence had been lost during the period of the appellants
    unexplained delay, she did presume that the passage of time would somewhat
    dim the recollection of witnesses. That strikes me as a common-sense
    presumption. My colleagues think otherwise, in large part because they measure
    the relevant delay to be only four months: from the time of the Dismissal Order
    to the time the appellant filed her motion to set aside. With respect, I think
    the more appropriate calculation of delay is over two years  from the start of
    the application to the date the motion was filed.

[89]

As well, my colleagues do not think that the
    respondents evidence about the impact of the litigation on him, which was
    accepted by the motion judge, should play any role in the analysis because the
    respondent gave no evidence that he was unable to move on with his life: at
    para. 52.

[90]

I regard those differences between the motion
    judge and my colleagues as mere quibbles that do not rise to the level of
    reversible error.

[91]

From her reasons, it is apparent the motion
    judge thought that the appellants lengthy delay and display of inertia, at
    best, or a complete lack of interest, at worst outweighed other factors. It
    was open to the motion judge to weigh the factors in that way; it was her
    discretionary call to make. That my colleagues might have exercised their
    discretion to call a strike a ball is not a basis for appellate reversal.

[92]

As well, I take issue with my colleagues
    suggestion that usually the mere passage of time cannot constitute prejudice
    that weighs against reviving a dismissed proceeding. On the contrary, it can.
    Indeed, if we make any pretence to a family and civil court system that offers
    the Ontario public timely justice, it must.

[93]

The issue of whether the passage of time
per
    se
constitutes prejudice recently arose in the context of motions to
    strike out civil jury notices. As I observed in a Chambers decision in
Louis
    v. Poitras
, 2020 ONCA 815, 8 C.C.L.I. (6th) 163, at para. 33:

Delay in obtaining a date for a civil jury trial can, by
    itself, constitute prejudice and justify striking out a jury notice. This
    should not be a surprising proposition. Part of the service guarantee to the
    public made in r. 1.04(1) is that courts will work to provide the most
    expeditious  determination of
every
civil
    proceeding on its merits (emphasis added). Delay in providing trial dates
    undermines that service guarantee. The late Willard Z. Estey, a former justice
    of the Supreme Court of Canada, captured the point well when he stated that
    delay in the settlement or disposal of conflicting claims is  a primary enemy
    of justice and peace in the community.

[94]

The recognition of delay
per se
as
    causing prejudice was accepted in the subsequent panel decision in
Louis v.
    Poitras
, 2021 ONCA 49, 456 D.L.R. (4th) 164, where Hourigan J.A. wrote, at
    para. 22:

[T]he motion judge found that the real and substantial
    prejudice arises simply by reason of delay: at para. 46. I agree with the
    statement of Brown J.A. in his decision on the stay motion that this was a
    legally permissible finding and that delay in obtaining a date for a
    civil jury trial can, by itself, constitute prejudice and justify striking out
    a jury notice. As Brown J.A. notes, the whole
raison dêtre
of the
    civil justice system, as captured in r. 1.04(1), is that courts will work to
    provide the most expeditiousdetermination of every civil proceeding on its
    merits:
Louis v. Poitras
, 2020 ONCA 815, at para. 33.

[95]

The prejudice caused by the mere passage of time
    is more pronounced where the issue arises in the context of a litigants
    failure to meet her
Rules
-imposed obligation to move her case in and
    out of court within a stipulated period of time. Under the
Family Law
    Rules
, saving expense and time is a component of the primary objective
    of dealing with a case justly: r. 2(3). The ability of the
Rules
-imposed
    in and out of court time obligations to promote that objective turns on the
    willingness of courts to enforce them. If courts do not treat the passage of
    time as a legitimate factor to take into account when deciding whether to
    revive an action dismissed for the failure to comply with in and out of court
    timelines, then one might as well tear up rr. 41(5) and (6). To remove the
    passage of time from the table of legitimate considerations would have the
    effect of eviscerating the
Rules
-imposed timeline obligations, feed
    the culture of complacency towards delay decried by
Jordan
, and
    reward negligent lawyers by freeing them from the risk of a claim on their
    professional liability insurance.

[96]

The motion judges consideration of the passage
    of time as prejudice was not a reversible error; it was a proper step in trying
    to defeat the culture of complacency towards delay in the family law system.

CONCLUSION

[97]

The motion judge gave reasons that correctly
    identified the applicable principles of law and explained why she weighed the
    different factors in the way that she did. Her reasons disclose she never lost
    sight of the big picture principles that provide the necessary framework for
    her analysis. Removed as we are at Osgoode Hall from the reality of managing
    the volume of cases in the family law trenches, we might be tempted to weigh
    some factors differently. But that is not our job. The task of weighing factors
    falls to the motion judge. In this case, she performed that task well, within
    the governing legal framework.

[98]

Her decision merits the support of this court,
    not its reversal.

[99]

I would dismiss the
appeal.

Released: December 16, 2021 D.B.

David Brown J.A.

[1]

Not Mr. Zalev or Ms. Warren.

[2]

Reid v. Dow Corning Corp.
(2001)
, 11 C.P.C. (5th) 80 (Ont. S.C.), revd on other grounds (2002), 48 C.P.C.
    (5th) 93 (Ont. Div. Ct.).

[3]

Limitations Act, 2002
, S.O. 2002, c. 24, Sched. B, s. 16(1)(c): There
    is no limitation period in respect of  a proceeding to obtain support under
    the
Family Law Act
or to enforce a provision for support or maintenance
    contained in a contract or agreement that could be filed under section 35 of
    that Act.

[4]

The respondent argued in this court that he did not concede
    that the motion was prompt, just that in the circumstances, any delay in
    bringing it was not a consideration. In my view, that distinction is not
    significant.

[5]
The appellant argued that there would be prejudice to her if the dismissal
    order was upheld which the motion judge overlooked, because the motion judge
    assumed the appellant could start another proceeding. The appellant suggested
    that a new proceeding could be met with an argument that a change in
    circumstances was required, or that it was an abuse of process. The respondent
    eschewed any reliance on a change in circumstances requirement for a new
    proceeding. At the same time, he reserved the right to argue that a new
    proceeding would be an abuse of process. Here, however, the motion judge
    expressly premised her decision on the recognition that without the passage of
    a limitation period, the [appellant], should she choose to, can issue a new
    claim. This given, I have difficulty seeing how the respondent could take
    advantage of the dismissal order, but then proceed to argue that a new
    proceeding is barred by the dismissal.

[6]
In my view, were the application to be dismissed on this basis, a new
    proceeding seeking the same relief would properly be viewed as an abuse of
    process.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ribble, 2021 ONCA 897

DATE: 20211216

DOCKET: C67465

MacPherson, Coroza and Sossin JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Joseph Ribble

Appellant

Joseph Ribble, acting in person

Janani Shanmuganathan, appearing as duty counsel

Erin Carley, for the respondent

Heard: December 9, 2021

On appeal from the conviction entered on August 8, 2019, and
    the sentence imposed on September 9, 2019, with reasons at 2019 ONCJ 640, by Justice
    P.H. Marjoh Agro of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of various drug and firearm
    related offences. He was sentenced to a
nine-year global sentence.

[2]

The only issue at trial was the appellants application contesting the validity
    of the search of his home under s. 8 of the
Charter of Rights and Freedoms
.
    The appellant challenged whether the Information to Obtain (ITO) provided the
    necessary reasonable and probable grounds to justify a search warrant for his
    residence. The trial judge found that the ITO, together with the record,
    justified the search warrant and dismissed the s. 8
Charter
application:
R v. Brennan & Ribble
, (July 30, 2019), Hamilton, 18-3864
    & 18-3871 (Ont. C.J.).

Conviction Appeal

[3]

With respect to the conviction appeal, on behalf of the appellant, duty
    counsel argues that there were no reasonable and probable grounds to believe
    there would be relevant evidence at his residence when the warrant was granted.

[4]

The information sources relied on by the police in the ITO said that the
    appellant and his co-accused used his co-accuseds workplace, a salon, to
    traffic drugs. There was no specific information that the appellant used his
    own residence to traffic drugs.

[5]

There were prior charges against the appellant involving drugs and firearms
    found in the appellants car, his former residence and the salon, but these
    charges were dropped, stayed or resulted in acquittals. The charges which did
    result in convictions had no connection to the appellants residence.

[6]

The appellant argues that the ITO should not have included the
    underlying facts of the prior charges that were withdrawn, stayed or resulted
    in acquittals. In referring to his criminal history, the appellant submits
    that the trial judge failed to distinguish between charges on which the
    appellant was convicted and charges which were withdrawn, stayed or resulted in
    acquittals: see paras. 28, 58.

[7]

According to the appellant, this rendered the resulting search warrant
    invalid.

[8]

We do not agree.

[9]

The facts underlying charges which do not result in convictions, in some
    circumstances, may be validly considered as a basis for search warrants, though
    in other cases will be irrelevant and improper:
R. v. Vivar
, 2009
    ONCA 433, at para. 1. In
R. v. James
,
2019 ONCA 288
, 373
    C.C.C. (3d) 364, at para. 59, Nordheimer J.A., in dissenting reasons, held that
    it was not inappropriate to rely on facts underlying stayed charges to justify
    search warrants. Nordheimer J.A.s dissent formed the basis of the Supreme
    Court of Canadas decision allowing the appeal in that case:
R. v. James
,
    2019 SCC 52, 383 C.C.C. (3d) 70.

[10]

In
    this case, unlike
James
, there was no attempt to conceal the fact that
    certain prior charges against the appellant had been withdrawn, stayed or
    resulted in acquittals. Further, the underlying facts of these charges, to the
    extent that it formed part of the ITO, were corroborative of other evidence
    arising from police operations and observations relied upon by the trial judge
    in reaching her finding: see e.g. paras. 74-80 of the trial judges reasons on
    the
Charter
ruling.

[11]

For
    example, in April 2018, a police operation observed a car being loaded with
    furniture and other items from the salon. The car was later seen at the
    appellants residence.

[12]

The
    trial judge also drew inferences from other evidence in the record. For
    example, with respect to the evidence of the co-accuseds eviction from the
    salon where drugs were known to be stored and sold, the trial judge inferred
    that a new location from which to store and sell drugs needed to be found.

[13]

The
    trial judge concluded that the warrant was justified based on the totality of the
    evidence. While it would have been preferable for the trial judge not to
    conflate prior charges against the appellant leading to convictions with those
    resulting in charges withdrawn, stayed or leading to acquittals in her
    reference to the appellants criminal history at para. 58, we see no error in
    the trial judges ultimate finding on the s. 8
Charter
application.

[14]

In
    light of the conclusion above, we do not reach the s. 24(2)
Charter
issue.

Sentencing

[15]

The appellant was sentenced to a
nine-year global sentence.
    He was credited with 589 days for 393 days of pre-sentence custody. The trial
    judge also imposed ancillary orders for DNA, s. 109 for life and prohibiting
    contact with his girlfriend, the co-accused.

[16]

The
    appellant argues that the sentence was excessive.

[17]

The
    trial judge reviewed the aggravating and mitigating factors relevant to
    sentencing the appellant in some detail, in addition to the case law on
    sentencing in relation to similar offences. She concluded:

[
81
] An appropriate sentence must reflect the
    circumstances of these offences and those of the offender, send a clear
    communication of denunciation and deterrence to Ribble and other like minded
    individuals, and protect society from drug dealers and their toxic wares.

[
82
] Traffickers who combine that activity
    with firearms must especially get an unequivocal message of denunciation from
    the court.

[
83
] The position taken by the defence for a
    six year sentence minimizes the serious nature of these charges and the
    aggravating circumstances, putting too much emphasis on the mitigating
    circumstances.

[
84
] Reflecting on the purposes and
    principles of sentencing, and the presenting aggravating circumstances, the
    sentences sought by the [Public Prosecution Service of Canada] are not
    excessive that is: an aggregate of 7 to 8 years. Nor is the position taken by
    the provincial Crown for an aggregate sentence of 5 years with a 1 year
    consecutive sentence for the weapon prohibition breaches.

[
85
] Imposed consecutively, the aggregate
    sentence would be 13 to 14 years.

[
86
] Ribble has never served a penitentiary
    sentence nor has he ever before served a reformatory sentence. His adult
    sentences have been comprised of time served dispositions followed by brief
    custodial terms never exceeding 30 days. He has never been subject to a
    probation order.

[
87
] As recognized by all three counsel,
    those sentences, imposed consecutively, may not appropriately reflect the
    principle of totality. Nor would it in my view reflect the mitigating circumstances
    that suggest that Ribble does have
some
prospect of rehabilitation.

[
88
] Mindful of the aggravating and
    mitigating circumstances, the fact that Ribble has never served a lengthy term
    of imprisonment, and recognizing that these offences are linked for the purpose
    of the single endeavour of drug dealing, I prefer to apply the principle of
    proportionality to a concurrent sentence over the principle of totality for
    consecutive sentences.

[
89
] In that way the deterrent and
    denunciatory effects of a fit sentence are not artificially diluted by the
    imposition of lower sentences on one or more counts in obeisance to the
    principle of totality.

[
90
] I am of the view that a fit sentence
    would require 9 years imprisonment inclusive of a 1 year consecutive term
    for prohibition breaches. [Emphasis in original.]

[18]

The
    appellant argues that the fact that he is an addict should have been considered
    as more of a mitigating factor than it was.

[19]

We
    disagree that this is a basis to interfere with the trial judges sentencing
    discretion. In all the circumstances, we find that the sentence was reasonable.

[20]

Accordingly,
    the appeal is dismissed.

J.C. MacPherson J.A.

S. Coroza J.A.

Sossin J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Carignan, 2021 ONCA 899

DATE: 20211217

DOCKET: M52602

Doherty, Trotter and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Patrick Carignan

Applicant

Patrick Carignan, acting in person

Philippe Cowle, for the respondent

Heard: December 9, 2021

REASONS
    FOR DECISION

[1]

The appellant was convicted of second-degree murder in 2017 and
    sentenced to life imprisonment without parole eligibility for 16 years. After
    full argument by counsel, the appellants appeal to this court was dismissed on
    the merits in June 2021:
R. v. Carignan
, 2021
    ONCA 496. The appellants sentence appeal had been abandoned by a solicitors Notice
    of Abandonment in 2020.

[2]

The appellant purported to file a new Notice of Appeal from conviction
    and sentence after his appeal had been dismissed by this court, but before the
    courts reasons were released. We have treated this Notice of Appeal as a
    motion to re-open the conviction appeal and a motion to set aside the appellants
    abandonment of his appeal from sentence.

[3]

No order has been issued formally dismissing either the conviction or
    sentence appeal. This court has jurisdiction to permit an appellant to re-open
    an appeal on the merits. That power is however exercised sparingly. The moving
    party must demonstrate a real concern that a miscarriage of justice will
    occur unless the appeal is re-opened:
R. v. Smithen-Davis
,
    2020 ONCA 759.

[4]

The appellant appeared on the motion to re-open his appeal in person. He
    made three main arguments:

·

the trial judge erred in finding that his statements were
    voluntary;

·

there were errors in this courts reasons dismissing the appeal
    and this court had not taken the time needed to properly consider the appeal;

·

the appellants trial counsel and his appeal counsel provided
    ineffective assistance.

[5]

None of these arguments warrant an order allowing the appellant to
    re-open his conviction appeal. The voluntariness issue was fully argued and
    considered on the initial appeal:
Carignan
, at
    para. 23-32. Nothing said by the appellant in his submissions gives this court
    cause for concern about its analysis of the voluntariness issue.

[6]

With respect to the alleged errors in the reasons of this court and its alleged
    failure to take the time to properly address the appeal, those arguments should
    be addressed to the Supreme Court of Canada by way of an application for leave
    to appeal. A motion to re-open an appeal cannot be treated as a
de facto
second appeal from a decision of this court.

[7]

The allegations of ineffective assistance of counsel contained in the Notice
    of Appeal are unsupported by any affidavit or other material evidence. It is
    noteworthy that the appellants in-person Notice of Appeal filed in December
    2017 made allegations of ineffective assistance of trial counsel. That ground
    of appeal was not pursued by counsel who argued the appeal before this court.
    Although the appellant has had four years to produce material relevant to that
    allegation, none has been produced. Nor is there any basis to support his
    assertion that he received ineffective assistance from his appeal counsel. This
    court cannot re-open an appeal based only on an appellants bald assertion that
    he received ineffective assistance.

[8]

There is no reason for this court to exercise its jurisdiction in favour
    of re-opening the conviction appeal.

[9]

Turning to the motion to set aside the abandonment of the sentence
    appeal, the appellant has basically argued the merits of the proposed sentence
    appeal. He spent little time on the preliminary question of whether he should
    be allowed to proceed with that appeal in the face of his earlier abandonment
    of the appeal. We are prepared to follow the approach taken by the appellant.

[10]

This
    court may set aside a notice of abandonment to avoid a potential miscarriage of
    justice. In deciding whether there is a risk of a miscarriage of justice it is
    appropriate to have regard to the potential merits of the sentence appeal.

[11]

The
    Crown has addressed those merits in its written argument. We agree with the
    Crown that a review of the facts of this case and a consideration of the
    sentences imposed in comparable cases leads to the conclusion that a period of
    parole ineligibility of 16 years is not unfit. The proposed sentence appeal has
    no prospect of success. The interests of justice do not warrant the setting
    aside of the appellants abandonment of his sentence appeal.

[12]

The motion to re-open the conviction appeal is dismissed. The motion
    to set aside the abandonment of the sentence appeal is dismissed.

Doherty J.A.

Gary Trotter
    J.A.

J.A. Thorburn
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Froom v. LaFontaine, 2021 ONCA 917

DATE: 20211220

DOCKET: M52554 (C69446)

van Rensburg and Roberts JJ.A. and
    Tzimas J. (
ad hoc
)

BETWEEN

Arthur Froom

Applicant

(Appellant/Responding
    Party)

and

Sonia LaFontaine

Respondent

(Respondent in appeal/Moving
    Party)

H. Keith Juriansz, for the moving party

Arthur Froom, acting in person

Heard and released orally:
    November 22, 2021

REASONS FOR DECISION

[1]

This is a motion to quash an appeal on the basis that the order under
    appeal (the order of Shore J. dated March 24, 2021) is interlocutory, and
    therefore can only be appealed to the Divisional Court with leave pursuant to
    s. 19(1)(b) of the
Courts of Justice Act
.

[2]

The parties have been involved in litigation for many years, including
    the family law proceedings in which the subject order was made. The order under
    appeal arises out of a motion brought by Ms. LaFontaine, for an order that the
    net proceeds of sale of a disputed property be paid into court and for other
    relief. The appellant, Mr. Froom, sought an adjournment of the motion,
    asserting that he was having cataract surgery on April 1st and that until then
    he was legally blind and could not read or prepare for court attendances, and
    that he wanted to cross‑examine Ms. LaFontaine on her affidavit material
    and to introduce
viva voce
evidence at the motion.

[3]

The motion judge decided to adjourn Ms. LaFontaines motion, but not for
    the reasons offered by Mr. Froom. She adjourned the motion to the trial of the
    proceedings, and she imposed a number of terms. The terms included the
    requirement that the appellant deposit US$475,000 with the accountant of the
    Superior Court, in trust, pending the outcome of the trial or consent between
    the parties. The motion judge also vacated a motion by Mr. Froom that was
    scheduled for March 30th (to strike Ms. LaFontaines pleadings on account of
    her alleged breaches of court orders). She concluded that the case needed to
    proceed to trial, and that findings of credibility were going to be crucial to
    the outcome of any orders made by the court, which is best done at trial with
viva
    voce
evidence. She directed that, if Mr. Froom wanted to take the position
    at the commencement of the trial that Ms. LaFontaine should not have standing
    to proceed, then he should bring his motion at the commencement of trial before
    the trial judge.

[4]

We agree with Ms. LaFontaine that the order under appeal is
    interlocutory. It is a temporary order and it does not dispose of any
    substantive issues between the parties on a final basis or deprive Mr. Froom of
    any possible defence: see
Mantella v. Mantella
, 2009 CarswellOnt 1060,
    2009 ONCA 194, at para. 21.

[5]

Mr. Froom makes a number of arguments about the merits of his
    appeal. Whether an order is final or interlocutory does not depend on the
    apparent strength of the appeal. As for Mr. Frooms argument that the motion
    judge erred in concluding that there was a non-dissipation order in place, and
    that she made other errors of fact, whether or not that is the case, it is the
    order and not the reasons that determine whether an order is final or
    interlocutory: see
Ashak v. Ontario (Director, Family
    Responsibility Office)
, 2013 ONCA 375, at para.
    13.

[6]

The motion judges order is an adjournment on
    terms. Invoking her authority under rule 1(7.1) and (7.2) of the
Family Law
    Rules
, she gave procedural directions with respect to the litigation,
    which were imposed as terms to the order adjourning Ms. LaFontaines motion.
    None of the procedural directions, including the requirement to pay money into
    court pending the outcome of trial or consent and the provision vacating Mr.
    Frooms motion scheduled for March 30th, disposes of his substantive rights in
    the litigation on a final basis. They were adjourned to be determined by the
    trial judge. As such, the order is interlocutory and any appeal lies to the
    Divisional Court with leave.

[7]

Accordingly, the appeal is quashed. The court denies
    Mr. Frooms request to transfer the appeal to the Divisional Court. Costs to Ms.
    LaFontaine fixed at $8,695.62, all inclusive.

K.
    van Rensburg J.A.

L.B. Roberts J.A.

E.
    Ria Tzimas, J. (ad hoc)


COURT OF APPEAL FOR ONTARIO

CITATION:

Hemlow Estate v. Co-operators General Insurance
    Company, 2021 ONCA 908

DATE: 20211220

DOCKET: C69114

MacPherson, Simmons and
    Nordheimer JJ.A.

BETWEEN

The Estate of John Hemlow,
    Deceased

Applicant (Respondent)

and

Co-operators General Insurance
    Company

Respondent (Appellant)

Robert Dowhan, for the appellant

Curtis C. Zizzo and Branko J. Kurpis,
    for the respondent

Heard: November 5, 2021 by video conference

On appeal from the judgment of Justice James
    R. Turnbull of the Superior Court of Justice, dated January 29, 2021, with
    reasons reported at 2021 ONSC 664.

MacPherson and Nordheimer JJ.A.:

A.

introduction

[1]

Sadly, John Hemlow, an independent mechanical
    contractor, was killed in a workplace accident that also caused extensive
    property damage at the location where he was working. The company that suffered
    the property damage commenced a lawsuit against Mr. Hemlows Estate and the
    company that retained him to do the work.

[2]

Mr. Hemlow had an insurance policy with Co-operators
    General Insurance Company (Co-operators) that excluded coverage for damage
    caused by pollutants. Co-operators took the position that this provision
    applied to the workplace accident and, accordingly, informed Mr. Hemlows Estate
    that it would not defend the claim on behalf of the Hemlow Estate.

[3]

The Hemlow Estate brought an application seeking
    a declaration that Co‑operators had a duty to defend the action against
    the Estate. The application judge granted the application. Co-operators appeals
    from that decision.

B.

facts

(1)

The parties and events

[4]

The late John Hemlow was a sole proprietor who
    carried on business as a mechanical contractor. When he took over his brothers
    business in 2011, he applied for and received a Commercial General Liability (CGL)
    policy with Co‑operators. One of the exclusions in the policy was a Total
    Pollution Exclusion which reads, in part:

This insurance does not apply to:

1)

Pollution Liability

a) Bodily Injury or property damage or
    personal injury arising out of the actual, alleged, potential or threatened
    spill discharge, emission, dispersal, seepage, leakage, migration, release or
    escape of pollutants.

[5]

In a different part of the policy  i.e., not
    connected to the Total Pollution Exclusion  the word Pollutants is defined:

Pollutants means any solid, liquid, gaseous
    or thermal irritant or contaminant including smoke, odours, vapour, soot,
    fumes, acids, alkalis, chemicals and waste.

[6]

In 2015, Rich Products of Canada Limited retained
    Wear-Check, a company that specializes in equipment oil and filter analysis, to
    sample and analyze the mechanical and refrigeration systems at its processing
    facility. Wear-Check subcontracted with Mr. Hemlow to carry out the sampling and
    analysis work.

[7]

During the course of his work, Mr. Hemlow opened
    a valve to a pipe containing pressurized ammonia. The resulting ammonia
    exposure killed Mr. Hemlow and caused significant damage to the Rich Products
    property.

[8]

Rich Products brought an action in negligence,
    nuisance and breach of contract against Wear-Check and the Estate of John
    Hemlow. Co-operators advised the Estate that it would not defend the claim
    against the Estate. The Estate brought an application seeking a declaration
    that Co-operators has a duty to defend the action.

(2)

The application judges decision

[9]

The application judge granted the Estates
    application. He concluded: I am satisfied that Co-operators must defend this
    action on the merits on behalf of its insured, the late John Hemlow.

[10]

The application judge found that Co-operators
    was to defend the action because the word Pollution was ambiguous. He found
    that it was ambiguous because it was left undefined in the policy and could be
    interpreted as including only environmental pollution.

[11]

The core of the application judges reasons in
    support of this conclusion is found in these passages from his judgment, at
    paras. 62 and 65:

In my view, the pollution exclusion clause is
    worded to protect the insurer from liability for environmental pollution and
    the improper disposal or contamination of hazardous waste. It would have
    taken very little for a clause to be added in the Total Pollution Exclusion
    document signed by Mr. Hemlow to state that the exclusion is not limited to
    environmental claims, but also includes all claims arising from any emission of
    any of the enumerated substances. The insurance industry has been gradually
    rewording these pollution clauses and exclusions over the years, as evidenced
    by the cases provided to this court. However, Co-operators has failed to make
    its intentions clear and easily understandable in this Policy.

The definition used by
    Co-operators of Total Pollution Exclusion was misleading in that it not only
    included an exclusion of events which an average person would associate with
    pollution, but any accidental occurrence that caused any damage to the
    customers property and which did not lead to environmental pollution as
    commonly understood.

C.

issue

[12]

The appellant says that there is a single issue
    on this appeal, which it frames in its factum as: Did the Application Judge err
    in concluding that the Total Pollution Exclusion clause contained in the CGL Policy
    does not apply to exclude Co‑operators duty to defend the Estate in the Rich
    Products of Canada Limited Action?

D.

analysis

(1)

Standard of review

[13]

The law on the standard of review for contract
    interpretation is well-established. Questions of mixed fact and law are
    entitled to deference unless the trial judge made a palpable and overriding
    error. Extricable questions of law are subject to a correctness standard of
    review:
Sattva Capital Corp. v. Creston Moly Corp.
, 2014 SCC 53, at
    para. 53.
Sattva
, at para. 54, specifies that courts should be
    cautious in identifying questions of law in disputes involving contractual
    interpretation.

[14]

For a particular category of contract  namely,
    standard form contracts  the standard of review is correctness:
Ledcor
    Construction Ltd. v. Northbridge Indemnity Insurance Co.
, 2016 SCC 37.
    This is because there is no meaningful factual matrix specific to the
    particular parties to assist in the interpretation process: see
Ledcor
,
    at para. 4.

[15]

In our view, the Total Pollution Exclusion is
    not a standard form contract. We say this for two reasons.

[16]

First, the appellant does not seriously contend
    that a correctness standard should apply based on
Ledcor
. Rather, the
    appellants position is that there are extricable questions of law that the
    application judge got wrong under the
Sattva
standard.

[17]

Second, the Total Pollution Exclusion cannot
    fairly be characterized as a standard form contract. Standard form contracts
    are typically standard printed forms that will often be offered on a take it
    or leave it basis; the potential insured person either agrees to take the
    terms as they are or declines to enter the transaction altogether: see
Ledcor
,
    at para. 25.

[18]

This description does not apply to the Total Pollution
    Exclusion signed by Mr. Hemlow. Initially, Mr. Hemlow and Co-operators were
    discussing a policy with a standard pollution exclusion. He was then asked to
    sign a separate Total Pollution Exclusion. Thus various options were in play;
    it was not a take it or leave it situation. Accordingly, the
Sattva
standard
    of review applies. Unless the appellant can identify an extricable question of
    law, the palpable and overriding error standard applies.

(2)

The merits

[19]

At the outset, it is important to remember that
    an insurers duty to defend arises from the claims as pleaded. McLachlin J.
    made this point in
Nichols v. American Home Assurance Co.
, [1990] 1 S.C.R.
    801, where she said, at p. 810:

However, general principles relating to the
    construction of insurance contracts support the conclusion that the duty to
    defend arises only where the pleadings raise claims which would be payable
    under the agreement to indemnify in the insurance contract.

[20]

The problem in this case is that the parties
    have fixed on their dispute over the interpretation of the pollution exception
    without giving proper consideration to the nature of the claims advanced
    against the Estate. Those claims are founded in negligence, nuisance, and
    breach of contract. There is nothing in the statement of claim that involves,
    or asserts, a claim arising out of pollution as that term is commonly
    understood. Rather, the claim advanced by Rich Products is a straightforward
    claim for damage to its property.

[21]

If the damages to the property of Rich Products
    had resulted from an explosion or a fire caused by Mr. Hemlow, there would be
    no debate over whether he would be entitled to coverage under his CGL policy
    with the appellant. He would be. That result does not change because the
    mechanism causing the damage happens to be a substance that can be labelled as
    a pollutant.

[22]

Mr. Hemlow sought coverage under his CGL policy
    in case he did something in the course of his work that gave rise to a claim
    against him. Put another way, Mr. Hemlow sought coverage from his insurer should
    he happen to be negligent in his work and a claim was brought against him. It
    is of importance to this issue to recognize that Mr. Hemlow was not engaged in
    work that generally involved risks from pollution. That is one factor that distinguishes
    this case from
ING Insurance Co. of Canada v. Miracle
, 2011 ONCA 321
    (
ING
), which we will discuss in greater detail below.

[23]

In this case, it is alleged that Mr. Hemlow acted
    in a negligent manner when he opened a valve and allowed the ammonia to escape.
    His alleged negligence caused damage to the property of Rich Products. It is
    his alleged negligence that is at the core of the claim pleaded by Rich
    Products. A claim arising from negligence is precisely the type of claim for
    which parties obtain CGL policies. It is the type of risk that Mr. Hemlow
    sought coverage for. The fact that the damage causing substance was a pollutant
    does not change the nature of the claim. It also must not be allowed to
    distract from the proper interpretation of the CGL policy nor obscure or
    distort the conclusion as to whether a duty to defend arises.

[24]

We repeat what we said at the outset of our
    analysis. The existence of the duty to defend depends on the nature of the
    claim made:
Prudential Life Insurance Co. v. Manitoba Public Insurance Corp.
(1976), 67 D.L.R. (3d) 521 (Man. C.A.), at p. 524, cited with approval in
Nichols
.
    Here the claim made falls within the terms of the CGL policy because it is a
    claim for breach of contract and negligence. The duty to defend therefore
    arises.

[25]

Given that conclusion, it is unnecessary to
    delve deeply into the debate over the application of the two leading cases
    dealing with pollution exclusion clauses for CGL policies, upon which counsel
    expended most of their efforts. Nevertheless, we will touch on them briefly
    because the results of these two cases tend to prove the point that we have just
    made.

[26]

The first is
Zurich Insurance Co. v. 686234
    Ontario Ltd.
(2002), 62 O.R. (3d) 447 (C.A.) (Z
urich
). In our
    view, that case is similar to the case here, both on its facts and on the
    particular provisions in the insurance policy. In that case, the numbered
    company insured (686) was the owner of an apartment building. 686 was the
    defendant in two proposed class actions in which it was alleged that the
    plaintiffs suffered injuries from carbon monoxide that leaked from the
    buildings furnace. The plaintiffs pleaded that 686 had been negligent in
    maintaining, repairing and keeping the furnace in good condition.

[27]

Zurich
is
    substantially similar to this case on its facts. In
Zurich
, a faulty
    furnace resulted in a leak of carbon monoxide. In this case, there was an
    accidental leak of ammonia from a refrigerator. While both of those substances
    would be considered pollutants, in neither case was the thrust of the allegedly
    negligent conduct the handling, or potential discharge, of a pollutant.

[28]

Second, the definition, coverage and exclusion
    clauses in the insurance policies in the two cases are very similar in their
    scope. The only significant difference appears to be that in the Co-operators
    policy the word odours has been added to the list of Pollutants. This does
    not affect the analysis.

[29]

In fairness, the appellant does not deny or
    attempt to qualify the close factual and legal identity between
Zurich
and this case. Instead, the appellant contends that two subsequent decisions by
    this court narrow the reasoning and potential application of
Zurich
and lead to a different result in this case.

[30]

We have already mentioned one of those cases,
    namely,
ING
.
T
he issue
    in that case was, as in this appeal, an Exclusion under a CGL policy. The
    application judge dismissed
INGs
application for a declaration that it had no duty to defend or indemnify
    Miracle. Relying on
Zurich
, the application judge found that there was
    nothing in Miracles regular business activity, which was operating a gas
    station, that placed it in the category of an active industrial polluter of the
    natural environment. The application judge concluded that since a reasonable
    insured would expect the exclusion to apply to industrial pollution and not to
    a gas leak, the plaintiffs claim did not come within the pollution exclusion.

[31]

The distinction between
ING
and this
    case, however, arises from the nature of the claim advanced. Indeed, the
    decision in
ING
reinforces the point we made at the outset about the
    importance of the claim as pleaded. In rejecting the application judges
    reasoning and conclusion, Sharpe J.A. said, at para. 22:

Unlike
Zurich
, in this case, the
    insured was engaged in an activity that carries an obvious and well-known risk
    of pollution and environmental damage: running a gas station.
Indeed, the statement of claim is framed as a claim for damage
    to the natural environment caused by a form of pollution
Such a claim
    fits entirely within the historical purpose of the pollution exclusion, which
    was to preclude coverage for the cost of government-mandated environmental
    cleanup under existing and emerging legislation making polluters responsible
    for damage to the natural environment: See
Zurich
, at para. 13.
    [Emphasis added.]

[32]

As will be apparent, the facts in the present
    case are very different from those in
ING
and thus properly lead to a
    different result.

[33]

The damages sought in the Statement of Claim in
ING
were to cover the loss in value of the plaintiffs adjacent property, the costs
    of conducting an environmental assessment, and the costs of remediating the
    property  all because of the gas that leaked onto the plaintiffs property.
    Accordingly, the claims fit comfortably within the historical purpose of the
    pollution exclusion.

[34]

The situation is very different in this appeal. In
    this case, what is sought by Rich Products is damages for out of pocket
    expenses, business losses and property damage (reasons at para. 21). In other
    words, the facts in this case, unlike
ING
, do not fit within the
    historical purpose of the pollution exclusion, which is to mitigate coverage
    for the cost of government-mandated environmental cleanup: see
Zurich
,
at para. 13 and
ING
,
at para. 22. In this case, there is no suggestion
    that any government-mandated cleanup is in play.

[35]

The second case the appellant relies on to
    suggest that
Zurich
should not govern this appeal is
OByrne v.
    Farmers Mutual Insurance Company (Lindsay)
, 2014 ONCA 543. We can deal
    with this case briefly. In that case, in an
obiter
statement in the
    penultimate paragraph of her judgment, van Rensburg J.A. said, at para. 53:

I do not necessarily agree with some of the
    trial judges other conclusions regarding the policy that are premised on
    the
Zurich
case. For example, he found that the pollution
    exclusion should be read as applying only to traditional environmental
    contamination and that the exclusion would not operate because the oil spill
    was contained within the building and had not spread to the natural environment
    outside the building.

[36]

The appellant latches onto this passage to suggest
    that the language of
Zurich
is too broad and needs to be narrowed to provide
    coverage to insureds only if their conduct led to direct damage to the
    environment.

[37]

We do not accept this submission. The policy in
OByrne
was an all risks property insurance policy. The present appeal involves the
    interpretation of an exclusion clause in a CGL policy. This difference is
    material: see
OByrne
, at para. 52.

[38]

In the end, it is important to recognize, as the
    application judge did at para. 50, that on a motion to determine if the
    insurer has a duty to defend the applicant will succeed if there is a mere
    possibility that a claim falls within the coverage under the policy: see
Progressive
    Homes Ltd. v. Lombard General Insurance Co. of Canada
, 2010 SCC 33, at
    para. 19.

[39]

Recalling that
Sattva
cautions against
    too quickly or easily identifying questions of law in disputes involving
    contractual interpretation, we conclude that there is no palpable and
    overriding error in the application judges conclusion relating to the coverage
    and exclusion issue in this case.

E.

Disposition

[40]

We would dismiss the appeal. We would award the
    respondent its costs of the appeal fixed at $15,000 inclusive of disbursements
    and HST.

Released: December 20, 2021 J.C.M.

J.C.
    MacPherson J.A.

I.V.B.
    Nordheimer J.A.

I
    agree. Janet Simmons J.A.