COURT OF APPEAL FOR ONTARIO

CITATION: Winter v. Sherman Estate, 2018 ONCA 379

DATE: 20180417

DOCKET: M48819 (C64434)

van Rensburg J.A.
    (Motion Judge)

BETWEEN

Kerry
    J.D. Winter
,
Paul T. Barkin

and
    Julia Winter, personal representative of
Dana C. Winter, deceased, and Jeffrey A. Barkin

Plaintiffs (
Appellants
)

Moving Parties

and

The
    Estate of Bernard C. Sherman, Meyer F. Florence,
Apotex Inc. and Joel D. Ulster

Defendants (Respondents)
Responding Parties

Bradley Teplitsky, for the moving parties

Katherine L. Kay, for the responding parties

Kevin Donovan, in person for the intervener Toronto Star
    Newspapers Ltd.

Heard: April 5, 2018

ENDORSEMENT

[1]

The moving parties, who are two of the appellants in
    this appeal, have brought a motion for: (i) an order appointing the Office of
    the Public Guardian and Trustee (the OPGT) as litigation guardian for the
    third appellant, Kerry Winter; (ii) if necessary, an order requiring Mr. Winter
    to attend for a mental examination by a health practitioner; (iii) in the
    alternative, an order removing Bradley Teplitsky as counsel of record for Mr.
    Winter; (iv) an order extending the time to perfect the appeal; and (v) an
    order that the evidence filed on the motion concerning Mr. Winters mental
    health be treated as confidential, sealed, and not form part of the public
    record.

[2]

When the motion was first before this court,
    time for perfection of the appeal was extended, and the appeal has now been perfected.
    Mr. Teplitsky was removed as counsel for Mr. Winter in the appeal. An
    assessment of Mr. Winter was directed with his consent, on terms and conditions
    agreed between the moving parties and the OPGT. The two affidavits of Julia
    Winter in support of the motion dated February 21, 2018 (the February
    Affidavit) and March 11, 2018 (the March Affidavit) were sealed pending
    further order, and the sealing order motion was adjourned to be brought back on
    before me as case management judge on the appeal, on notice to the media.

[3]

On the return date, the moving parties no longer
    requested an order sealing the two subject affidavits in their entirety.
    Rather, they sought to protect the confidentiality of certain information
    contained in the affidavits and Exhibit A to the March Affidavit.
    Mr. Winter and the OPGT did not attend. Mr. Teplitsky advised the court
    that Mr. Winter supported the motion, and that the OPGT was taking no
    position.

[4]

Except as I shall explain, the motion was
    opposed by the respondents and by Toronto Star Newspapers Ltd. (the Toronto
    Star). The Toronto Star was permitted to intervene on the motion, and to be
    represented at the hearing by Kevin Donovan, senior investigative journalist.
    The respondents were provided with redacted versions of the two affidavits,
    which were otherwise sealed pending this decision.

[5]

The moving parties raise two confidentiality
    concerns in respect of the affidavits of Ms. Winter. First, there are passages
    that disclose solicitor-client communications between Mr. Winter and Mr.
    Teplitsky, although solicitor-client privilege has not been waived by Mr.
    Winter. Second, the affidavits disclose personal information about Mr. Winters
    mental health, confided for the purpose of seeking the appointment of a
    litigation guardian. Certain passages in the March Affidavit and its Exhibit A
    also disclose personal information about the health of Jeffrey Barkin, who is
    not a party to the appeal.

[6]

The parties agree that the applicable test was
    articulated by Iacobucci J. in
Sierra Club v. Canada (Minister of
    Finance)
,

2002 SCC 41, [2002] 2 S.C.R. 522. A sealing or confidentiality order
    should only be granted when (a) such an order is necessary in order to prevent
    a serious risk to an important interest, in the context of litigation, because
    reasonable alternative measures will not prevent the risk (the necessity
    branch); and (b) the salutary effects of the order, including the effects on
    the right of civil litigants to a fair trial, outweigh its deleterious effects,
    including the effects on the right to free expression which includes the public
    interest in open and accessible court proceedings (the proportionality
    branch):
Sierra Club
, at pp. 543 and 544. The
    court must consider whether something less than a sealing or confidentiality order
    would be sufficient in the circumstances and, if such an order is made, must
    ensure that it is not overly broad:
Sierra Club
, at p. 546.

[7]

Dealing first with solicitor-client
    communications, Mr. Teplitsky identified certain passages that he asked the court
    to redact for all purposes. He advises that the moving parties will not be
    relying on such evidence in support of the motion to appoint a litigation
    guardian for Mr. Winter. The respondents and the intervener agreed to the
    redactions of solicitor-client communications on this basis. They asked the
    court, however, to exercise appropriate caution in redacting only
    narrowly-defined, actual solicitor-client communications.

[8]

Solicitor-client communications are routinely
    protected from disclosure in litigation, including in particular solicitors
    affidavits for removal from the record and in support of an order to appoint a
    litigation guardian: see, for example,
Evans v. Evans
, 2017 ONSC 5232, 99 R.F.L. (7th) 379;
DiPaolo v.
    Valeriote
, 2011 ONSC 338, 196 A.C.W.S. (3d) 1163; and
    rule 4(13) of the
Family Law Rules
, O. Reg.
    114/99. Redaction or expungement of confidential information from the court
    record for all purposes can be a reasonable alternative:
Sierra Club
, at pp. 546 and 547. That is what Mr. Teplitsky is asking for
    in connection with the passages in the affidavits covered by solicitor-client
    privilege.

[9]

I have examined the two affidavits. There is no
    reference to solicitor-client communications in the March Affidavit, so no
    redaction for this purpose is required. The February Affidavit contains a
    number of explicit references to solicitor-client communications. I direct the
    redaction of paras. 12, 13, the first and fourth sentences of para. 14, and
    paras. 15 (a) and (d) of the February Affidavit, which will no longer form part
    of the court record in the litigation guardian motion, or for any purpose.

[10]

I turn to the references to Mr. Winters
    personal health information. Here, the request is not to expunge the
    information from the court record, but to protect it from disclosure. The
    moving parties seek to rely on this information in support of the motion for a
    litigation guardian, but they do not want any of it disclosed to the public, or
    even to the respondents or the respondents counsel.

[11]

The first branch of the
Sierra Club
test, referred to as the necessity branch, requires the risk to
    the interest sought to be protected by the confidentiality order to be real and
    substantial. The risk must be well-grounded in the evidence and pose a
    serious threat to the interest in question. The interest cannot be merely
    specific to the party requesting the confidentiality order, but one which can
    be expressed in terms of a public interest in confidentiality:
Sierra
    Club
, at p. 544.

[12]

What is the evidence in this case to support the
    necessity for the confidentiality order sought by the moving parties? There is
    no affidavit from them or from Mr. Winter to address this part of the test, nor
    do the February or March Affidavits speak to the impact of disclosure of this
    information on Mr. Winter. Instead, the moving parties rely on the nature of
    the information itself, and argue that there is a public interest in parties to
    litigation bringing forward information about mental health difficulties
    without concern that it will be broadcast in the media or by people who might
    seek to take advantage of that information. Further, the moving parties assert
    that Mr. Winters personal health information should be protected from the
    respondents, because this information is before the court and relevant only to
    the litigation guardian issue, which is between Mr. Winter and the other
    appellants and does not affect the respondents.

[13]

The respondents point out that they were served
    with the motion, including the request for the appointment of a litigation
    guardian for Mr. Winter. They contend that they have an interest in the proper
    progress of the appeal, which may well be affected by the making or refusal of
    an order respecting an appellants disability. In any event, they point to the
    Statement of Claim to argue that Mr. Winter put his mental health in issue
    in the action in the court below. They also assert that the moving parties have
    not established that there is any public interest at stake in respect of Mr.
    Winters personal information. The Toronto Star filed a number of media reports
    in which Mr. Winter has been open and forthcoming about his various personal
    struggles, and submitted that, in the circumstances of this case, there is
    neither a private nor a public interest that would warrant the exceptional
    protection of a confidentiality order.

[14]

A motion to appoint a litigation guardian
    affects both the personal interests of the individual whose ability to make
    decisions in a proceeding are affected, and the administration of justice. On
    such a motion, it is important that those who are concerned about a persons
    capacity to participate in litigation and/or to instruct counsel are able to
    bring forward appropriate information for the courts consideration. The issue
    to be determined is the persons capacity at the time the order is considered:
    see, for example,
Family and Childrens Services of the Waterloo
    Region v. J.V.,
2017 ONCA 194, at para. 28;
Constantino
    v. Constantino
, 2016 ONSC 7279, at para. 55. And direct
    medical advice and information about a persons actual mental condition is
    key:
Barnes v. Kirk
, [1968] 2 O.R. 213 (C.A.)
    and
Constantino
, at para. 58.

[15]

In this case, Mr. Winter has consented to an
    assessment to determine whether he is unable to understand information
    relevant to making a decision in respect to an issue or issues in the appeal or
    is unable to appreciate the reasonably foreseeable consequences of a decision
    or lack of decision. The focus of the assessment is on whether Mr. Winter
currently
has capacity to participate in the appeal and to instruct
    counsel. As such, the court need not rely on what Ms. Winter states in her
    February Affidavit about her knowledge of Mr. Winters medical history and past
    diagnosis. This information can be redacted or expunged for all purposes, as a
    reasonable alternative to a confidentiality order.

[16]

I therefore direct that the last sentence of
    para. 7, and the entirety of paras. 8 and 10 of the February Affidavit, be
    redacted for all purposes and not form part of the record in the motion or appeal.

[17]

As for the confidentiality order sought in
    respect of other references to Mr. Winters current mental state, it is
    relevant as observational evidence from someone who knows the litigant well,
    and I am not satisfied on the evidence in this case that the moving parties
    have discharged their burden in respect of the necessity part of the
Sierra
    Club
test for the protection of such evidence. The
    passages in question consist of Ms. Winters personal observations of her
    brother-in-law and inform her opinion as a layperson that he is under a
    disability and requires a litigation guardian. They do not contain any
    diagnosis or any other opinion of a medical practitioner, nor do they refer to
    communications between Mr. Winter and a medical practitioner, which might give
    rise to more specific confidentiality concerns.

[18]

In addition, the remaining passages of the
    affidavits speak of some of the same problems that Mr. Winter has discussed
    openly with the media. In so far as this information is already public, it
    cannot be necessary to protect it with a confidentiality order. In any event,
    on this record there is no evidence to suggest that the disclosure of this
    information would cause any harm to Mr. Winter, or indeed to any broader public
    interest in protecting the personal medical information of vulnerable
    individuals.

[19]

As such, I am not persuaded, on the evidence in
    this case, that there is a real and substantial risk to Mr. Winters privacy
    interests, or to the broader public interest, in the confidentiality of the
    remaining statements of Ms. Winter about Mr. Winters mental state and other
    matters. In arriving at this decision, I place no weight on what is pleaded in
    the Statement of Claim, nor do I agree that Mr. Winter through his pleading
    alone has placed his mental health at issue in the Superior Court action.

[20]

I turn to the request to redact from the March
    Affidavit the references to Jeffrey Barkins health, as well as Exhibit A,
    which is an affidavit of Karen Barkin sworn May 27, 2017, addressing her husbands
    health. Mr. Teplitsky advised that Ms. Barkins affidavit, although served on
    the respondents in the Superior Court proceedings, was never filed in court,
    and the motion in respect of which the affidavit was served did not proceed. I
    was also advised that neither Jeffrey Barkin nor Karen Barkin was served with
    the motion now before this court, which of course has nothing to do with
    Jeffrey Barkin, who is not a party to the appeal.

[21]

The references to Mr. Barkins health and
    Ms. Barkins affidavit are unnecessary and irrelevant to the motion for
    the appointment of a litigation guardian for Mr. Winter. Accordingly, the
    third, fourth and fifth sentences of para. 12 as well as para. 38 and Exhibit A
    to the March Affidavit shall be redacted for all purposes and not form part of
    the court record.

[22]

Finally, I leave for another occasion the
    determination of two issues: (1) whether the respondents in fact have an
    interest in the litigation guardian issue that would permit them to argue for
    or against the appointment when that matter comes back before the court, and
    (2) whether the assessment report to be prepared in this matter will be part of
    the court record and protected from public disclosure if filed (which issue,
    while referred to, was not specifically argued at this time).

[23]

I therefore direct that the following passages
    be redacted and no longer form part of the court record in the litigation
    motion or for any other purpose:

1.

February Affidavit: para. 7 (only the last
    sentence to be redacted); paras. 8, 10, 12, 13 (in their entirety); para. 14
    (only sentences 1 and 4 to be redacted); paras. 15(a) and (d) (in their
    entirety).

2.

March Affidavit: para. 12 (only sentences 3, 4
    and 5 to be redacted); para. 38 (in its entirety); and Exhibit A to the March
    Affidavit, sworn May 26, 2017 (in its entirety).

[24]

These directions shall take effect 14 days after
    the release of these reasons. This will allow those affected to consider what
    steps, if any, they may wish to take to challenge them. For those 14 days, the
    February Affidavit and March Affidavit will remain sealed in their entirety.

[25]

If anyone seeks costs of this motion and there is no agreement,
    submissions are to be exchanged and filed with the court within 45 days of
    these reasons.

K.
    van Rensburg J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: 2363523 Ontario Inc. v. Nowack, 2018 ONCA 414

DATE: 20180502

DOCKET: M49006 (C63990)

Rouleau, Pardu and Paciocco JJ.A.

BETWEEN

2363523 Ontario Inc.

Applicant/Plaintiff
    (Respondent/Responding Party)

and

Steven Nowack
,
    Mellisa Frishling, John Doe 1 to 10, Jane Doe 1 to 10 and Doe Corporations 1 to
    10

Respondent/Defendant
    (Appellant/Moving Party)

Paul Slansky, for the moving party

Norman Groot, for the responding party

Heard in writing

REASONS FOR DECISION

[1]

Mr. Steven Nowack has applied to this panel to review and set aside a
    security for costs order made by a single motion judge.

[2]

The only arguable error identified by Mr. Nowack was the reliance placed
    by the motion judge on Mr. Nowacks legal representation as evidence of an
    ability to pay a security for costs order. We need not decide whether this was in
    fact in error.

[3]

There are significant and multiple unpaid costs awards against Mr. Nowack.
    The motion judge was entitled to find that his assertions of impecuniosity and
    inability to pay are not credible given that the only evidence that [Mr. Nowack]
    adduces in support his claims was his assertion that he is impecunious is his
    own, and given obvious concerns about his credibility, given the findings of
    fraud and contempt against him. This is well supported on the record without
    reliance on the fact that Mr. Nowack has periodically retained counsel.

[4]

We note that although millions of dollars have passed through Mr. Nowacks
    hands and that he claims to be without any financial resources, he has refused
    on cross-examination to answer questions about the source of monies he has used
    to support himself for the last several years.

[5]

We dismiss the application. Costs to the respondent fixed at $2,000
    inclusive of applicable taxes and disbursements.

Paul Rouleau J.A.

G. Pardu J.A.

David M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: 992548 Ontario Inc. v. 8657181 Canada Inc., 2018
    ONCA 416

DATE: 20180502

DOCKET: C64379

MacFarland, LaForme and Epstein JJ.A.

BETWEEN

992548 Ontario Inc.

Plaintiff (Respondent)

and

8657181 Canada Inc.

Defendant (Appellant)

Paul H. Starkman, for the appellant

Johanna McNulty, for the respondent

Jack Masterman, for LH Golf Group Inc.

Heard: April 12, 2018

On appeal from the order of Justice Theresa Maddalena of
    the Superior Court of Justice, dated September 19, 2017.

Epstein J.A.:

[1]

The appellant, 8657181 Canada Inc., mortgaged property it owned to the
    respondent, 992548 Ontario Inc. The appellant defaulted on the mortgage and the
    respondent obtained a default judgment for foreclosure. This is an appeal from
    the dismissal of the appellants motion to set aside the judgment and for
    relief from forfeiture with respect to the default on the mortgage.

BACKGROUND

[2]

The respondent acquired four parcels of land and converted them into a
    golf course. In August 2014, the appellant purchased the golf course and
    related assets, including goodwill, for $5,500,000. On closing, the respondent
    took back a mortgage in the amount of $2,700,000. The terms of the mortgage
    required the appellant to make a $500,000 payment on account of principal on or
    before September 1, 2014 and monthly interest payments thereafter until August
    12, 2016. The appellant made these payments. The mortgage also required the
    appellant to pay the respondent, on August 12, 2016, the outstanding amount
    under the mortgage of $2,200,000 plus accrued interest. The appellant did not
    make this payment.

[3]

The respondent demanded payment. The demand included a notice to enforce
    security. The appellant did not respond. As a result the respondent instituted
    two separate actions.

[4]

On December 16, 2016, the respondent commenced power of sale
    proceedings, requesting payment. The appellants counsel said his client would
    address the claim. This, however, did not happen. On January 27, 2017 a notice
    of sale under mortgage was served on the appellant. Again, the appellant did
    not respond. On March 22, 2017 default judgment was issued against the
    appellant for $2,200,000 together with possession of the property.

[5]

The respondent did not enforce the judgment. Rather, on March 30, 2017,
    the respondent initiated foreclosure proceedings. Again, the appellant did not
    defend. On May 17, 2017 default judgment was obtained in the foreclosure
    action. On May 19, 2017 the respondent took possession of the property.

[6]

On May 26, 2017, the respondent accepted an offer to purchase the
    property from LH Golf Group Inc. for $3,100,000. The sale has not closed due to
    this proceeding.

[7]

The first communication from the appellant disputing the foreclosure and
    the possession was by letter of May 30, 2017. On June 8, 2017 the appellant
    moved to set aside default judgment and for relief from forfeiture. On the day
    the motion was heard the appellant filed a document purporting to be a commitment
    letter for a mortgage in the amount of $3,200,000.

ANALYSIS

(1)

The Applicable Principles

[8]

The court has a broad jurisdiction to set aside a default judgment and
    grant relief against foreclosure wherever the equities in the mortgagors
    favour outweigh all that are against him or her. Walter M. Traub,
Falconbridge
    on Mortgages
, loose-leaf, 5
th
ed. (Toronto: Thomson Reuters,
    2017).

[9]

The factors to be considered in the exercise of the courts discretion
    include:

(i) whether the motion to set aside was made with
    reasonable promptness;

(ii) whether there is a reasonable prospect of
    payment at once or within a short period of time;

(iii) whether the applicant has been active in
    endeavouring to raise the money necessary;

(iv) whether the applicant has a substantial interest
    in the property or the property has some special intrinsic value to him or her;
    and

(v) where the property has been sold after
    foreclosure (not the case here), whether the rights of the purchaser will be
    unduly prejudiced.

[10]

In
    addition, relief such as the appellant requested may be granted where there are
    special circumstances justifying the reopening of the foreclosure or, more
    generally, whether the equities in favour of reopening the foreclosure order
    outweigh the equities against doing so. In
Winters v. Hunking
,
2017 ONCA 909, Blair J.A. added that a
    weighing of the equities cannot be done without taking into account the
    relative prejudice to the respective parties in making or not making the order.

[11]

In
    these fact-based cases the ultimate task is to determine whether the interests
    of justice favour granting the order:
Mountain View Farms Ltd. v. McQueen
,
    2014 ONCA 194, 317 O.A.C. 255, at paras. 47-51.

[12]

The
    decision to set aside a default judgment for foreclosure is discretionary. As
    such, it is entitled to deference in the absence of an error in law or
    principle, a palpable and overriding error of fact, or unless the decision is
    so clearly wrong as to amount to an injustice: see
HSBC Securities (Canada)
    Inc. v. Firestar Capital Management Corporation
, 2008 ONCA 894, 245 O.A.C.
    47, at para. 22;
Ontario Housing Corp. v. Ong
, (1988) 63 O.R. (2d) 799
    (Ont. C.A.).

(2)

The Motion Judges Decision

[13]

The
    motion judge reviewed the background facts and set out the correct legal
    outlined above. The motion judge found, at para. 39, that the appellant made a
    conscious decision not to defend either [proceeding] and did not show a prima
    facie case on the merits. The motion judge went on to find that with respect
    to the foreclosure action, there was no explanation for the default. She
    rejected the appellants assertion that it was confused by the two actions
    given it was served with all necessary documents and was represented by
    counsel, throughout. The motion judge found no evidence of an intent to defend
    and given the letter of commitment was not credible, no evidence of an ability
    to redeem the mortgage. Finally, the motion judge found that there was no
    defence on the merits.

[14]

The
    motion judge went on to consider the appellants request for an order granting
    relief from forfeiture pursuant to s. 98 of the
CJA
.

[15]

She
    set out the proper test, which is virtually the same as the test for setting
    aside a default judgment set out above, and added to her findings her conclusion
    that a new purchaser was in possession of the property that would be prejudiced
    if the foreclosure were set aside.

[16]

In
    the end the motion judge found no evidence that the appellant was able to
    redeem. The motion judge went on to find nothing special in the appellants
    situation on which to base an equitable intervention. She refused to set aside
    the foreclosure order.

[17]

The
    motion judge failed to analyse the nature and significance of the magnitude of
    the windfall to the respondent in the context of the appellants circumstances
    of not setting aside the default judgment for foreclosure.

(3)

The Principles Applied

[18]

The
    appellants primary argument is based on this courts recent decision in
Winters
v.
Hunking
, decided after the motion judges reasons
    were released. The appellant argues that the motion judge erred by not
    considering the importance of the windfall the respondent would realize in the
    context of the appellants circumstances if the default foreclosure judgment
    were to stand.

[19]

The
    appellant submits that it has equity in the property of at least $2,500,000 and
    that the respondent has sold the property for approximately $800,000 more than
    the mortgage debt.

[20]

The
    difficulty I have in applying the analysis in
Winters v. Hunking
to
    this case is as follows. In
Winters
,
the evidence supported Blair J.A.s conclusion that based on the appraisal
    evidence  there is every likelihood that, through a sale of the property, the
    respondent mortgagees will be completely reimbursed and thereby suffer no
    prejudice, other than a certain inconvenience. The property has not been sold,
    and there are no other third-party rights that may be adversely affected. On
    the other hand, the appellant will suffer severe prejudice. Respectfully,
    viewed together with the other factors outlined above, I do not accept that
    such a result is what the justice of the case requires.

[21]

This
    case is very different. First, there is no appraisal evidence. The appellant
    tendered no evidence of the value of the property. Further, no evidence of the appellants
    equity in the property was tendered, particularly none to support the
    appellants assertion that the appellant had $2,700,000 in equity given that
    the original purchase price included, as I indicated, other related assets. In
    addition, there is no evidence to support the appellants assertion that GL
    Golf underpaid for the property. The appellant did not provide any evidence
    relating to its investment, appraised value, or the portion of the purchase
    price allocated to the land in the original purchase. Its commitment was with
    non-arms length purchasers. No evidence of $2.7 million in equity was
    tendered.

[22]

There
    is no evidentiary foundation for the respondents claim that the property is
    undervalued. No consideration of windfall possible without evidence.

[23]

Second,
    the factual backdrop here does not attract the equities that animated the
    result in
Hunking
. Here, the party seeking equitable relief is a
    numbered company. In
Hunking
, it was an elderly disabled man in poor
    health. Here, the property in issue is investment property. In
Hunking
the property was the family homestead. Here, the only explanation for the delay
    is that the appellant  who was represented by counsel  was confused by the
    two actions. Mr. Hunkings personal circumstances were understood to explain
    his difficulty responding to the legal proceedings. Unlike in
Hunking
in this case there was no evidence that would support a conclusion that the
    respondent would be reimbursed and suffer no prejudice if the default were set
    aside. In
Hunking
there was no third party to worry about. Here, there
    is no evidence that would support the conclusion that no third-party rights may
    be adversely affected. Unlike in
Hunking
, here there is no evidence
    that the appellant would suffer severe prejudice if the order were allowed to
    stand.

[24]

It
    is important to emphasize that setting aside a default judgment for foreclosure
    is exceptional

relief, and the outcome in
Winters v. Hunking

turns on its facts. The motion judges decision was discretionary and
    entitled to deference. The issue is whether a decision whether to set aside a
    default judgment for foreclosure is whether the equities in favour of the
    mortgagor outweigh those in favour of the mortgagee or  to the same effect,
    adopting the language pertaining to setting aside default judgments, generally
     whether the decision to set aside the order leads to a just result in all the
    circumstances.

[25]

Here,
    the result the motion judge arrived at is, in my view, precisely what the
    justice of the case requires.

DISPOSITION

[26]

For
    the foregoing reasons, I would dismiss the appeal.

[27]	I would order costs in favour of the appellant, 992548 Ontario Inc., fixed in the amount of $25,000 inclusive of disbursements and HST.

Released: GE MAY 02 2018

Gloria Epstein J.A.

I agree. J.
    MacFarland J.A.

I agree. H.S.
    LaForme J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Alderton v. Haylor Properties Niagara Inc., 2018
    ONCA 483

DATE: 20180524

DOCKET: C64725

Pepall, van Rensburg and Paciocco JJ.A.

BETWEEN

David Alderton

Plaintiff/Respondent

and

Haylor Properties Niagara Inc. and Andrea Wood

Defendants/Appellants

Aaron Rousseau, for the appellants

Barry W. Adams, for the respondent

Heard and released orally: May 22, 2018

On appeal from the
    order of Justice J.A. Ramsay of the Superior Court of Justice, dated November
    23, 2017.

REASONS FOR DECISION

[1]

This is an appeal of an order dismissing a
    motion to set aside a default judgment.

[2]

The respondent sued the appellants Haylor
    Properties Niagara Ltd. and its principal Andrea Wood for wrongful dismissal in
    an action commenced in 2011. A trial record was filed in November 2013 and, to
    accommodate the availability of the appellants counsel, a trial date was fixed
    for the sittings commencing September 7, 2015. In the interim, the appellants
    counsel was removed from the record, which prompted an adjournment of the
    trial. This pattern continued, with trial dates being fixed and adjournments
    sought so the appellants could retain new counsel. The trial was marked
    peremptory for a date in 2016, but adjourned on consent on condition that Ms.
    Wood attend for examination for discovery. Ultimately, the trial was marked
    peremptory for the trial sittings commencing November 7, 2016.

[3]

In September 2016, the respondent brought a
    motion to strike the appellants statement of defence after the appellants
    failed to deliver a notice of intent to act in person, and to appoint counsel
    for the corporate defendant. The motion was adjourned at the appellants
    request to October 5, 2016, after the appellants asserted they had new counsel.
    However no one attended at the return date of the motion and the statement of
    defence and counterclaim was struck.

[4]

The appellants were noted in default and the
    matter proceeded to an uncontested trial. Sweeny J. granted judgment and costs
    against the corporate appellant only, dismissing the action against Ms. Wood
    without costs.

[5]

The appellants motion under r. 19.08 to set
    aside the default judgment was dismissed by the motion judge, Ramsay J.

[6]

The motion judge referred to the factors set out
    in
Mountainview Farms Ltd. v. McQueen
, 2014
    ONCA 194, as applicable to a motion to set aside a default judgment. He
    accepted that the motion had been brought promptly and that the appellants had
    an arguable defence. He concluded however that the circumstances leading to the
    default had not been adequately explained, and that, if the order were made,
    the respondent would be prejudiced and the integrity of the system of justice
    would be impaired.

[7]

The appellants say the motion judge erred
    because (1) he failed to consider that they had a plausible explanation for
    their failure to attend at the uncontested trial; and (2) he made palpable and
    overriding errors of fact in concluding that the appellants had been intentionally
    delaying the matter.

[8]

We do not give effect to either ground of
    appeal.

[9]

First, as the motion judge observed, the issue
    was not whether the appellants were able to explain their failure to attend the
    uncontested trial. Their defence had been struck without leave to deliver
    another defence, and they had been noted in default. Pursuant to r. 19.02(3),
    in the absence of any direction to the contrary, they were not entitled to
    notice of the uncontested trial, or, without leave of the court, to participate
    further in the action. The appellants knew the matter had been scheduled to
    proceed in the sittings on a peremptory basis, had not attended to oppose the
    motion to strike their defence, and cannot therefore rely on any asserted
    failure to receive notice from the court that the uncontested trial was
    proceeding. As the motion judge observed, any explanation for why the
    appellants did not attend the uncontested trial was beside the point.

[10]

The second ground of appeal is that the motion
    judge made palpable and overriding errors of fact. First, the appellants argue
    that the motion judge erred in saying that the appellants had not paid certain
    costs ordered against them in September 2015. After being interrupted in his
    oral reasons by the respondents counsel, the motion judge acknowledged this
    error, and it cannot reasonably be concluded that this played any role in his
    decision, let alone that it was an overriding factor.

[11]

Second, the appellants assert that the motion
    judge erred in saying that they were never examined for discovery, when Ms.
    Wood was in fact examined. This was an error, however nothing turns on it. Ms.
    Wood was only discovered after repeated adjournments and cancellations as a
    condition of the court adjourning a trial date that had been marked peremptory.
    The motion to set aside the default judgment was not refused because the
    appellants failed to attend for discovery, but because of their pattern of
    delay, which led to a decision by the court to strike their pleading. In all
    the circumstances the conclusion of the motion judge here was reasonable. A
    motion judges decision on a motion to set aside a default judgment is
    discretionary and attracts deference on appeal:
Mountainview
, at para. 55.

[12]

Finally, we decline to address the appellants
    argument, which was raised for the first time today, that the motion judge
    failed to consider prejudice to the appellants in refusing to set aside the
    default judgment.

[13]

The appeal is therefore dismissed. Costs to the respondent in the
    amount agreed between counsel, $3,500, inclusive of disbursements and
    applicable taxes.

S.E. Pepall J.A.

K. van Rensburg J.A.

David M. Paciocco
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Apotex Inc. v. Abbott Laboratories Limited, 2018
    ONCA 466

DATE: 20180517

DOCKET: C63578 and C63585

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

BETWEEN

Apotex Inc.

Plaintiff (Respondent)

and

Abbott Laboratories Limited, Takeda
    Pharmaceuticals Company Limited and Takeda Pharmaceuticals America Inc.

Defendants (Appellants)

AND BETWEEN

Abbott Laboratories Limited, Takeda
    Pharmaceuticals Company Limited and Takeda Pharmaceuticals America Inc.

Plaintiffs by counterclaim (Appellants)

and

Apotex Inc.

Defendant by counterclaim (Respondent)

Steven G. Mason and David A. Tait for the appellant
    Abbott Laboratories Ltd.

Christopher C. Van Barr and Kiernan Murphy for the
    appellant Takeda parties

Andrew R. Brodkin and Michael A. Wilson for the
    respondent

Heard: December 6, 2017

On appeal from the order of Justice Michael G. Quigley of
    the Superior Court of Justice, dated June 5, 2017, with reasons reported at
    2017 ONSC 1348.

COSTS ENDORSEMENT

[1]

The parties made written submissions on costs.

[2]

In our view, this is not an appropriate case for costs in the cause.

[3]

Apotex is entitled to costs on a partial indemnity basis, fixed in the
    amount of $15,000 from Takeda and $25,000 from Abbott, both amounts inclusive
    of disbursements and HST.

G.R. Strathy C.J.O.

R.G. Juriansz J.A.

Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Beatty v. Wei, 2018 ONCA 479

DATE: 20180524

DOCKET: C64023

Pepall, Hourigan and Brown JJ.A.

BETWEEN

Jonathan Beatty and Jacqueline Beatty

Applicants (Appellants)

and

Zhong Wei and Re/Max Premier Inc.

Respondents (Respondents)

AND BETWEEN

Zhong Wei

Applicant (Respondent)

and

Jonathan Beatty
,
Jacqueline Beatty
,
    Harold Balchand and Re/Max Premier Inc.

Respondents (
Appellants
)

John Lo Faso and David Morawetz, for the
    appellants Jonathan Beatty and Jacqueline Beatty

Patrick
    Bakos and Shida Azari, for the respondent Zhong Wei

Heard: January 26, 2018

On appeal from the judgment of Justice Peter J. Cavanagh of
    the Superior Court of Justice, dated June 5, 2017, with reasons reported at
    2017 ONSC 3478, and from the costs order, dated August 25, 2017, with reasons
    reported at 2017 ONSC 5086.

BROWN J.A.:

I.

OVERVIEW

[1]

This appeal puts into question the interpretation of an illegal
    substances clause commonly used in the Ontario Real Estate Association/Toronto
    Real Estate Board Agreement of Purchase and Sale. At issue is the second part
    of the clause where the seller represents and warrants that to the best of the
    Sellers knowledge and belief, the use of the property and the buildings and
    structures thereon has never been for the growth or manufacture of illegal
    substances.

[2]

In the present case, after the parties had entered into their agreement
    of purchase and sale, the purchaser, through his own inquiries, discovered that
    the property had been used as a marijuana grow-op before the sellers had
    acquired it. The purchaser took the position that he was entitled to terminate
    the agreement; the sellers disagreed. Competing applications ensued. The application
    judge held that the purchasers discovery of information about the propertys
    prior use amounted to a breach by the sellers of their representation and
    warranty in the clause. The application judge held the purchaser was entitled
    to rescind the agreement and obtain the return of the deposit.

[3]

For the reasons set out below, I conclude the application judge erred in
    reaching that conclusion. I would allow the appeal.

II.

THE TRANSACTION

[4]

The parties entered into a standard form Ontario Real Estate
    Association/Toronto Real Estate Board Agreement of Purchase and Sale dated May
    15, 2016 (the APS) under which Zhong Wei (the Purchaser) agreed to purchase
    from Jonathan and Jacqueline Beatty (the Sellers) a residential property at
    39 Stainforth Drive, Toronto, for the purchase price of $916,000. The Purchaser
    submitted a deposit of $30,000. Closing was scheduled for August 22, 2016.

[5]

The APS consisted of a standard, pre-printed section, to which were
    attached two schedules. The Purchaser added to his offer a Schedule A, which
    contained additional terms he proposed. The Purchaser was also directed to
    attach a Schedule B, which contained additional terms. Schedule B originated
    with the Sellers real estate agent, and any purchaser who wished to submit an
    offer for the property was directed to include the Sellers Schedule B in his
    offer.

[6]

The Purchaser did so. Although the record is not clear about the precise
    sequence of events that followed, some of the additional terms proposed by the
    Purchaser on his Schedule A, including a home inspection clause, were deleted.
    In the result, the Purchaser accepted those deletions and the parties executed
    the APS.

[7]

Schedules A and B formed part of the APS. Both contained, as an
    additional term, an identical illegal substances clause (the Illegal
    Substances Clause or the Clause), which stated:

The Seller represents and warrants that during the time the
    Seller has owned the property, the use of the property and the buildings and
    structures thereon has not been for the growth or manufacture of any illegal
    substances, and that to the best of the Sellers knowledge and belief, the use
    of the property and the buildings and structures thereon has never been for the
    growth or manufacture of illegal substances. This warranty shall survive and
    not merge on the completion of this transaction.

[8]

About a month after the execution of the APS, the Purchasers real
    estate agent conducted internet searches and came across information that
    suggested the property had been used as a grow-op before being purchased by
    Jonathan Beatty. Subsequently, the Toronto Police Services confirmed to the
    Purchaser that in 2004 the property had been used to produce marijuana. By
    letter dated July 8, 2016, Purchasers counsel conveyed this information to the
    Sellers counsel and stated: As a result of the stigma from the fact the home
    was a previous marijuana facility, my client is not willing to complete the
    transaction and demands return of his deposit.

[9]

The Sellers refused to terminate the APS. Instead, they commenced a July
    26, 2016 application seeking: declarations that the Purchaser had breached a
    binding APS by refusing to close; the forfeiture of the deposit to them; and
    damages for any loss they might suffer as a result of the delayed re-sale of
    the property.

[10]

The
    Purchaser commenced a competing application on September 14, 2016 seeking a
    declaration that he was not required to complete the purchase of the property,
    together with the return of the deposit and damages resulting from the Sellers
    breach of the APS.

[11]

The
    Sellers ultimately sold the property to another purchaser for $86,100 less than
    the price stipulated in the APS.

III.

THE REASONS OF THE APPLICATION JUDGE

[12]

The
    applications were heard together. The application judge dismissed the Sellers
    application but granted the Purchasers. The application judge held that the
    Purchaser was entitled to rescind the APS and to the return of the deposit. The
    application judge directed that the Purchasers claim for damages proceed to
    trial.

[13]

In
    his analysis, the application judge divided the Illegal Substances Clause into
    a separate representation and warranty.

[14]

When
    he considered the warranty, the application judge accepted that the words to
    the best of the Sellers knowledge and belief meant that the Sellers did not
    warrant the absolute truth of the statement that the Property has never been
    used for the growth or manufacture of illegal substances: para. 18.

[15]

However,
    he viewed the effect of those words differently when considering the
    representation in the Clause. He treated those words as a statement of a
    present fact, to the best of the Sellers knowledge and belief, that was
    intended to be relied upon when made and one upon which the Purchaser was
    entitled to continue to rely, at least until closing, while the APS was an
    executory contract: para. 20.

[16]

As
    a result, he found that the Purchasers discovery after the execution of the
    APS that the property previously had been used to grow marijuana and the
    Purchasers communication of that information to the Sellers meant the Sellers
    representation was false. He reasoned that since the Sellers would be obliged
    to disclose such information if they discovered it after signing the APS, then
    upon acquiring the information from the Purchaser, the Sellers could no longer
    honestly give the representation in the Illegal Substances Clause. The
    application judge found that the Purchaser was induced to enter into the APS on
    the basis of the Sellers misrepresentation, as a result of which the Purchaser
    could rescind the APS.

[17]

By
    order dated August 25, 2017, the application judge awarded the Purchaser costs
    in the amount of $26,436.43.

IV.

POSITIONS OF THE PARTIES

The Appellant Sellers

[18]

The
    Sellers submit the correctness standard applies to the interpretation of the
    Illegal Substances Clause because it forms part of a standard form contact
    widely used in Ontario residential real estate transactions.

[19]

They
    contend that whether the Illegal Substances Clause is regarded as a warranty or
    representation, under its language the relevant state of knowledge and belief
    of the Sellers was that existing at the date of the execution of the APS, not
    at the date of closing as found by the application judge. At the date of
    execution, the Sellers did not know about the propertys prior use as a marijuana
    grow-op, so no breach of the Illegal Substances Clause occurred.

The Respondent Purchaser

[20]

The
    Purchaser contends a deferential standard of review applies to the application
    judges interpretation of the Illegal Substances Clause because facts regarding
    his reliance on the Clause and its materiality are essential to the
    interpretive exercise. As well, the provisions contained in Schedules A and B
    were the subject of extensive negotiations between the parties, thereby taking
    those provisions out of the category of standard form contractual terms. The
    dispute is of little precedential value and the interpretation depends on a
    unique set of facts that would not give rise to a broader precedent. In any
    event, the Purchaser submits the application judge arrived at the correct
    interpretation.

[21]

In
    the Purchasers submission, the application judges conclusion that the
    representation in the Illegal Substances Clause continued through to closing
    was supported by the language in the clause that the warranty survived and did
    not merge on the completion of the transaction. To interpret the clause in the
    manner suggested by the Sellers would render it almost meaningless. Once the
    Sellers were made aware of the marijuana grow operation by the Purchaser, they
    could no longer honestly make the representation and warranty.

V.

STANDARD OF REVIEW

[22]

In
Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co
., 2016
    SCC 37, [2016] 2 S.C.R. 23, the Supreme Court recognized an exception to the
    principle in
Sattva Capital Corp. v. Creston Moly Corp.
, 2014 SCC 53, [2014]
    2 S.C.R. 633, that contractual interpretation is a question of mixed fact and
    law subject to deferential review on appeal: [W]here an appeal involves the
    interpretation of a standard form contract, the interpretation at issue is of
    precedential value, and there is no meaningful factual matrix that is specific
    to the parties to assist the interpretation process, this interpretation is
    better characterized as a question of law subject to correctness review: para.
    24.

[23]

Such
    is the case with the Illegal Substances Clause in the APS. The pre-set portion
    of the APS indisputably constitutes a standard form contract. The evidence
    discloses that the Illegal Substances Clause is a standard provision commonly
    used in residential agreements of purchase and sale in the Toronto region: the
    Purchasers Schedule A, and the Sellers Schedule B, each contained an
    identical Illegal Substances Clause; an identical clause was found in the 2009
    agreement under which Jonathan Beatty had acquired the property; and the other
    two 2016 offers entertained by the Sellers also contained identical Illegal
    Substances Clauses.

[24]

There
    is no meaningful factual matrix specific to the parties that could assist
    interpreting the Illegal Substances Clause: the Purchaser included the clause
    in Schedule A to his offer and attached the Sellers Schedule B that contained the
    identical clause.

[25]

Finally,
    given that the Illegal Substances Clause is commonly used as an additional term
    in the Ontario Real Estate Association/Toronto Real Estate Board Agreement of
    Purchase and Sale, the interpretation of the clause has precedential value.
    Regardless of whether the pending decriminalization of the possession of
    marijuana in certain circumstances will necessitate modifications to the
    clause, until that time there is precedential value in interpreting this
    widely-used clause.

[26]

In
    those circumstances, I conclude the interpretation of the Illegal Substances
    Clause is best characterized as a question of law subject to correctness
    review.

VI.

INTERPRETATION OF THE ILLEGAL SUBSTANCES CLAUSE

[27]

I
    shall consider the issues concerning the interpretation of the Illegal
    Substances Clause in the following order:

(i)       The
    application judges differentiation of the representation from the warranty
    in the Clause;

(ii)      The
    application judges reliance on a duty to disclose to inform his interpretation
    of the Clause;

(iii)     The
    guidance other provisions in the APS offer to the interpretation of the Clause;
    and

(iv)     The
    effect of the survives closing language at the end of the Clause.

(i)

The application judges differentiation of the representation from the
    warranty in the Clause

[28]

In
    the Illegal Substances Clause, the Sellers both represent and warrant two
    state of affairs: (i) the property was not used to grow or manufacture illegal
    substances while owned by them; and (ii) to the best of the Sellers knowledge
    and belief, the property had never been used for those purposes.

[29]

The
    application judge concluded the Sellers had not breached their warranty
    because the contractual language did not disclose an intent that the content
    of the warranty could change with changing circumstances after the date of the
    APS when the warranty was given: para. 19. By contrast, he treated the
    Clauses representation as a material representation that induced the
    Purchaser to enter into the contract which, if ultimately shown to be false,
    entitled the Purchaser to rescind.

[30]

In
    other words, when he considered the legal effect of the Clause, the application
    judge applied different analytical approaches to the same contractual term: he
    interpreted the warranty language as a term of the contract, while he looked
    at the representation language through the lens of the principles concerning
    pre-contractual representations. That approach contained several errors.

[31]

First,
    the application judge failed to take into account the inter-related nature of
    the representation and the warranty in this particular contract. They were
    not stand-alone statements. They worked together since, generally speaking, a
    contractual representation is a statement of present or past fact, while a warranty
    is a contractual undertaking or guarantee that the fact is true: John D. McCamus,
The Law of Contracts
, 2d ed. (Toronto: Irwin Law, 2012), at pp. 336
    and 729.

[32]

Second,
    by focusing on the availability of the remedy of rescission in some cases of
    misrepresentation, the application judge did not address the real interpretive
    issue: What did the Sellers representation in the Illegal Substances Clause
    mean? Were the Sellers making a statement about the state of affairs as they
    existed, to their knowledge, at the time the parties executed the APS? Or, were
    the Sellers representing that their knowledge of a state of affairs would
    continue until closing? The application judge first had to decide what the
    representation meant before turning to the question of what remedies would be
    available in the event the representation was breached.

[33]

Third,
    it is problematic to view, as the application judge did, the representation
    in the Illegal Substances Clause as some kind of pre-contractual or collateral
    representation. In the present case, the Purchaser made an offer to buy the
    property. His offer included the Illegal Substances Clause in Schedule A and
    attached the Sellers Schedule B additional terms, which included the Clause.
    The Purchaser either accepted a modified sign-back of his offer or the Sellers
    accepted a modified Purchasers offer  the record is not clear about the
    precise sequence of events. In either case, both parties treated the Illegal
    Substances Clause as an integral term of the contract they concluded.

[34]

The
    principles concerning pre-contractual representations have little role to play
    in those circumstances. Instead, as Professor McCamus notes, at p. 736, the use
    of the verb represents in contractual provisions does not lead to the
    conclusion that the representations are mere representations and not proper
    terms (that is, undertakings) of the contract. Such representations are terms
    of the contract in the sense that that they are the subject of a promise that
    they are true, and accordingly, when the statements prove to be false, they
    give rise to the normal remedies for breach of contract: See also:
Benedek
    v. Dorian Homes
(1986), 43 R.P.R. 16 (Ont. H.C.), at para. 35;
Zien v.
    Field
(1963), 41 D.L.R. (2d) 394, at paras. 50-52, revd on other grounds,
    [1963] S.C.R. 632; and G.H.L. Fridman,
The Law of Contract in Canada
, 6th
    ed. (Toronto: Carswell, 2011), at p. 434.

[35]

Finally,
    to treat the representation contained in the Illegal Substances Clause as
    something other than a term of the contract would ignore the language of the
    entire agreement clause in the APS. Section 26 states: This Agreement
    including any Schedule attached hereto, shall constitute the entire Agreement
    between Buyer and Seller. There is no
representation
,
    warranty,
collateral agreement
or
    condition, which affects this Agreement other than as expressed herein (emphasis
    added).

[36]

Accordingly,
    the application judge erred by removing the representation from the contract
    and treating it as akin to a pre-contractual misrepresentation. Instead, he
    should have interpreted the Illegal Substances Clause as a term of the parties
    contract in accordance with the standard rules of contractual interpretation,
    as summarized, for example, in
Weyerhaeuser Company Limited v. Ontario
    (Attorney General)
, 2017 ONCA 1007, 13 C.E.L.R. (4th) 28, at para. 65,
    leave to appeal to SCC requested.

(ii)

The application judges reliance on a duty to disclose to inform his
    interpretation of the Clause

[37]

The
    application judge made a related error. To arrive at his conclusion that the
    Sellers representation in the Illegal Substances Clause covered information
    about the past use of the premises unknown to them but discovered by the
    Purchaser between the date of execution of the APS and closing, the application
    judge reasoned in the following way. He posited that if the Sellers had
    discovered, after the execution of the APS, that the property had been used as
    a marijuana grow-op before they acquired it, their silence  or failure to
    disclose such information to the Purchaser  could found an action for
    misrepresentation. From this he concluded, at para. 22, that the Purchasers
    rights are not affected by the fact that he was the one who discovered this
    information and communicated it to the Sellers.

[38]

The
    application judges reasoning does not persuade me. The representation and
    warranty the Sellers gave about the use of the premises was limited, not
    absolute. It was a representation and warranty to the best of [their]
    knowledge and belief. On the record before the application judge, it appears
    that the Purchasers discovery that a previous owner of the house had used it
    for a grow-op came as a complete surprise to the Sellers.

[39]

Certainly,
    liability may attach where a vendor knew about a major latent defect but
    concealed the information from the Purchaser: see, for example,
McGrath v.
    MacLean
(1979), 22 O.R. (2d) 784 (C.A.), at pp. 791-92. Silence about such
    a major latent defect can amount to fraud:
Empire Communities Ltd. v. Her
    Majesty the Queen
, 2015 ONSC 4355, 46 B.L.R. (5th) 235, at para. 37. But
    the present case does not involve vendors who concealed material information
    about the condition of the property from the purchaser. Here, it appears the
    Sellers did not know about the premises past use as a grow-op until told by
    the Purchaser.

[40]

As
    well, the application judges reliance on the decision in
Sevidal v. Chopra
(1987), 64 O.R. (2d) 169 (H.C.), at pp. 187-89, was misplaced. I do not
    quarrel with the application judges statement, at para. 21 of his reasons, that
    silence which follows a representation can found an action for
    misrepresentation where the silence continues after the representor learns that
    the representation is no longer true or was never true. However, I take issue
    with what the application judge, relying on
Sevidal
, said next: This
    principle applies
even where a representation
    made at the time a contract is signed
becomes untrue before or at the
    time of completion:  para. 21 (emphasis added).

[41]

With
    respect, that principle cannot be teased out of the decision in
Sevidal
because that case did not involve a claim for breach of a
contractual
representation. In
Sevidal
, the
    vendors of a residential property were found liable for deceit in part because
    they did not disclose to the purchaser information they received after signing
    the contract about the presence of radioactive material on the property. The
    court held that the failure to disclose such information before closing
    amounted to a fraud on the purchaser.

[42]

This
    misunderstanding of the jurisprudence led the application judge to conclude,
    erroneously, that [u]pon acquiring knowledge that the Property had been used
    to grow marijuana, the Sellers could no longer honestly give the representation
    in the Illegal Substances Clause: para. 22. In fact they could, if the
    representation was limited to their knowledge and belief about the prior use of
    the property at the time they executed the APS. Instead of addressing the key
    interpretive question about what the representation meant, the application
    judge improperly applied principles concerning a vendors concealment of
    material information about the condition of a property to a situation where no
    such concealment had occurred.

(iii)

The meaning of the Illegal Substances Clause

[43]

Applying
    the general principles of contractual interpretation to the Illegal Substances
    Clause, what is the meaning of the representation and warranty given by the
    Sellers in the second part of the Clause: [T]o the best of the Sellers
    knowledge and belief, the use of the property and the buildings and structures
    thereon has never been for the growth or manufacture of illegal substances?

[44]

In
    my view, the Sellers representation and warranty that the use of the property
    had never been for the growth or manufacture of illegal substances was limited
    to their knowledge and belief as it existed when they executed the APS. I reach
    that conclusion for three reasons.

[45]

First,
    that interpretation flows from the plain language used in the Clause.

[46]

Second,
    the interpretation is supported by the absence of any language in the Clause
    that speaks of the Sellers knowledge and belief at the date of closing, in
    contrast to the use of such language in other provisions of the APS.

[47]

A
    fundamental precept of contractual interpretation is that a contract is to be
    construed as a whole with meaning given to all of its parts: Geoff R. Hall,
Canadian
    Contractual Interpretation Law
, 3d ed. (Toronto: LexisNexis Canada, 2016),
    at p. 16. A provision in a contract should not be read as standing alone, but
    in light of the agreement as a whole and its other provisions:
Hillis Oil
    and Sales Limited v. Wynn's Canada, Ltd.
, [1986] 1 S.C.R. 57, at p. 66.
    See also Hall, at p. 21.

[48]

In
    the APS, section 17 states: [T]he Seller represents and warrants that the
    Seller
is not and on completion will not be
a non-resident under the non-residency provisions of the Income Tax Act which
    representation and warranty shall survive and not merge upon the completion of
    this transaction (emphasis added).

[49]

Schedule
    A contains two provisions that make clear the Sellers representation or
    warranty operates at the time of closing:

(i)

The Seller warrants that there are no work orders or deficiency notices
    outstanding against the property, and if so will be complied with at his
    expense,
on or before closing
; and

(ii)

The Seller warrants and represents that all electrical, plumbing,
    mechanical components, all existing appliances and chattels included in the
    purchase price shall be in normal working condition
on closing
. [Emphasis added.]

[50]

That
    other provisions of the APS use language signifying that the Sellers
    representation or warranty operates at the time of closing suggests that the
    absence of similar language in the Illegal Substances Clause reflects the
    parties intention to limit its operation to the state of affairs known at the
    time of the APS execution.
[1]
Put another way, it was open to the parties to craft the representation and
    warranty so that it either spoke to the Sellers state of knowledge and belief
    on closing, or required the Sellers to give some sort of declaration or
    bring-down certificate about the state of their knowledge on closing. The
    Purchaser did neither.

(iv)    The effect of the survives closing language at the
    end of the Clause

[51]

Third,
    the Illegal Substances Clause concludes with the following sentence: This
    warranty shall survive and not merge on the completion of this transaction. I
    do not regard this language as meaning that the representation and warranty
    about the Sellers knowledge and belief refers to that held at the date of
    closing, as the respondent submits. Instead, the language reflects the debate
    that took place in the jurisprudence some time ago about whether a purchaser
    could sue on a warranty or condition contained in a contract for the sale of
    land following the completion of the transaction and the conveyance of the land
    by deed.

[52]

An
    older line of cases held that a purchaser could only bring an action on conditions
    and warranties contained in the deed of conveyance, unless the parties stipulated
    at an earlier stage of their dealings that any conditions and warranties in the
    agreement of purchase and sale were not to be superseded by the deed: see, for
    example,
Redican v. Nesbitt
, [1924] S.C.R. 135, at pp. 146-47.

[53]

Later
    cases took a different approach. In
Fraser-Reid v. Droumtsekas
, [1980]
    1 S.C.R. 720, at pp. 734-735, the Supreme Court stated:

Where the sale agreement creates rights or imposes obligations
    or stipulations collateral to, or independent of, the conveyance, the question
    of whether those stipulations are extinguished by merger is to be treated as
    one of intention. In the absence of evidence on the point, there is no
    presumption that the purchaser intended to surrender or abandon the rights
    acquired by him under the sale agreement. [Citations omitted.]

[54]

In
    my view, the survives closing language at the end of the Illegal Substances
    Clause does nothing more than clarify that whatever the content of the
    representation or warranty given by the Sellers, it did not merge with the deed
    on closing. The representation and warranty survived closing to offer a basis
    for a post-closing action for breach. However, that language does not assist in
    ascertaining the content or meaning of the representation or warranty given.

[55]

For
    these reasons, I conclude that the Sellers representation and warranty in the
    Illegal Substances Clause that the use of the property had never been for the
    growth or manufacture of illegal substances was limited to their knowledge and
    belief as it existed when they executed the APS. At that time, they did not
    know about the propertys prior use as a grow-op. In those circumstances, I
    conclude the application judge erred in finding the Sellers breached the
    Clause. They did not.

VII.

DISPOSITION

[56]

For
    the reasons set out above, I would set aside the judgment dated June 5, 2017
    and the costs order dated August 25, 2017.

[57]

In
    their place, I would substitute an order allowing the Sellers application to
    the extent of declaring that: (i) the Purchaser breached the APS by failing to
    close; and (ii) the Sellers are entitled to the deposit in the amount of
    $30,000.

[58]

I
    would remit to the Superior Court of Justice the determination of the following
    issues, in accordance with these reasons: (i) the entitlement of the Sellers to
    their costs of the proceeding before the application judge; (ii) the costs of
    Re/Max Premier Inc. and Harold Balchand arising out of the Purchasers
    application (as referenced in para. 2 of the August 25, 2017 order); and (iii)
    the Sellers claim for damages.

[59]

I
    would award the Sellers their partial indemnity costs of the appeal fixed at
    $15,000, inclusive of disbursements and all taxes.

Released: CWH May 24, 2018

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

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

[1]
Section 23 of the APS contains a representation and
    warranty concerning ureaformaldehyde that is very similar in structure and
    content to the Illegal Substances Clause. Unfortunately, there does not appear
    to be any reported case that has considered this precise clause, which might
    have provided some guidance on interpreting the Illegal Substances Clause.


COURT OF APPEAL FOR ONTARIO

CITATION: Beaver v. Hill, 2018 ONCA 415

DATE: 20180501

DOCKET: M49029 (C64766)

Brown J.A. (Motions Judge)

BETWEEN

Brittany Beaver

Respondent (Moving Party)

and

Kenneth Hill

Appellant (Responding Party)

Andrew Lokan, for the responding party

Martha McCarthy, for the moving party

Heard and released orally: April 30, 2018

ENDORSEMENT

THE ISSUE

[1]

The issue before me on this motion is a narrow one. The applicant,
    Brittany Beaver (Mother), filed an affidavit in support of her motion in this
    court for advance funding in respect of the appeal of the respondent, Kenneth
    Hill (Father), from the order of Chappel J. dismissing his challenge to the
    jurisdiction of Ontario courts to adjudicate Mothers claims against him for
    custody, child support, and spousal support.

[2]

Father wants to cross-examine Mother on her affidavit; she opposes.

BACKGROUND FACTS

[3]

Mother and Father had a relationship from 2008 until 2013, when they
    separated. Their child was born in 2009.

[4]

Mother, Father and child are Haudenosaunee. Father lives on the Six
    Nations Reserve, along the Grand River, near Brantford; Mother and child live off
    it.

[5]

In late 2015, Mother brought an application for,
inter alia
,
    custody, child support and spousal support. Father opposed by seeking an order
    declaring that Ontario courts lack jurisdiction to determine any support
    obligations he might have to Mother and his child. Chappel J. dismissed his
    motion by order dated December 8, 2017.

[6]

Father has appealed. His appeal is scheduled to be heard by this court
    in the last week of June.

[7]

No interim support or custody order has been made as of this date.
    Father has been making
ex gratia
monthly payments to Mother of
    $10,000.

[8]

Mother has brought a motion in this court seeking an order that Father
    pay her advance costs for the appeal in the amount of $100,000, together with
    certain relief in respect of the contents of the appeal record. In support of
    her motion, Mother filed an April 4, 2018 affidavit which, in part, describes
    her financial situation.

[9]

According to Mothers April 4, 2018 Financial Statement, her annual
    income is slightly less than $20,000. According to Fathers February 3, 2016
    Financial Statement, his annual net income was $2.109 million.

[10]

Pursuant
    to the April 20, 2018 order of Fairburn J.A., Mothers motion for advance costs
    will be heard in a few days, on May 2, 2018. Her order directed that if the
    parties could not agree on whether Mother could be cross-examined, that issue
    would be argued today. Time for any cross-examination has been scheduled for
    tomorrow. Fathers counsel anticipates the cross-examination will not exceed 90
    minutes in length.

[11]

Father
    has served Mother with a notice of examination, which requires Mother to bring
    to the examination full copies of your retainer agreements(s) with counsel,
    records of all amounts paid to counsel, and all communicationsrelating to
    payment arrangements with counsel. In para. 16 of his Supplementary
    Submissions, Father identifies the areas on which he wants his counsel to
    cross-examine Mother: (i) her retainer agreement with her counsel; (ii)
    payments she has made to counsel; (iii) efforts she has made to obtain legal
    funding from other sources; (iv) the amount she is prepared to contribute to
    fund her response to the appeal; and (v) the basis for her request for $100,000
    in advance costs.

[12]

Counsel
    confirmed that, as of today, neither the federal nor provincial government has
    expressed an intention to participate in Fathers appeal, notwithstanding the
    service of two Notices of Constitutional Question.

THE POSITIONS OF THE PARTIES

[13]

Father
    submits he is entitled, as of right, to cross-examine Mother on the affidavit
    she filed in support of her motion for advance costs.

[14]

Mothers
    position regarding Fathers request to cross-examine her is set out, in part,
    in her counsels letter of April 13, 2018: (i) Father was provided with her
    financial disclosure years ago and never challenged her evidence; (ii) Mothers
    limited financial means have been, as they should be, non-controversial;
    (iii) there is no legitimate debate that [Father] is far, far wealthier than
    [Mother] and that there is no level playing field between the parties in this
    case; and (iv) the proposed cross-examination would be contrary to the
    primary objective and the principles established to deal with family law cases.

[15]

Mother
    also submits that Father should not be granted relief from this court while in
    breach of a court order.

[16]

The
    order in question is that made by Sloan J. on January 2, 2018 (the Disclosure
    Order).  On its face, the Disclosure Order states that it was made on a Form
    14B basis, pursuant to Rule 14 of the
Family Law Rules
, O. Reg. 114/99
. It requires Father
    within 14 days to serve a full and properly completed Financial Statement and
    to produce specified documents about his finances. As well, para. 2 of the
    order states: If the [Father] claims he cannot provide any piece of disclosure
    requested, the [Father] shall, within the same 14 days, explain by affidavit
    why he cannot provide that information and estimate when he shall be in a
    position to provide it.

[17]

Father
    moved before this court to stay the Disclosure Order. Roberts J.A. dismissed
    his motion on March 26, 2018. To date, Father has not made the ordered
    disclosure. Nor has he served an affidavit to explain why he cannot provide
    disclosure, as required by para. 2 of the Disclosure Order. Instead, Father has
    moved to vary the scope of and timelines in the Disclosure Order. That motion
    will be returnable sometime during the week of May 22, 2018.

ANALYSIS

[18]

Two
    competing principles are at play in respect of Fathers request for an order
    compelling Mother to attend tomorrow for cross-examination on her affidavit.

[19]

On
    the one hand, there is a
prima facie
right of a party to cross-examine
    an affiant. However, the court retains an inherent power to control its own
    process. Consequently, in cases where it appears to be in the interests of
    justice, a court may refuse to permit such cross-examination or restrict its
    scope:
Re Ferguson and Imax Systems Corp.
(1984), 47 O.R. (2d) 225
    (Div. Ct.), at pp. 235-236; leave to appeal to SCC refused, 19664 (February 28,
    1986).

[20]

On
    the other hand, a court may decline to entertain a request by a party to invoke
    its assistance where the party is not in compliance with an order of the court:
Dickie v. Dickie
, 2007 SCC 8, [2007] 1 S.C.R. 346, at paras. 4 and 6.

[21]

In
    the present case, Father has not complied with the Disclosure Order. He has not
    made any documentary production, nor has he served an affidavit explaining why
    he cannot or when he will. While Father is seeking to vary the Disclosure
    Order, that does not change the fact that he has not complied with it and that
    Roberts J.A. refused to stay its operation.

[22]

Full
    and prompt financial disclosure is a key element of this provinces family law
    regime. The failure to comply with court-ordered disclosure is a most serious
    matter.

[23]

In
    such circumstances, I am not prepared to accede to Fathers request for an
    order compelling Mother to attend for cross-examination on her affidavit.

[24]

In
    dismissing Fathers request for an order compelling Mothers attendance for
    cross-examination, I make no comment on the adequacy of the evidence Mother has
    put forward in her affidavit or the evidentiary implications of Mothers
    refusal to be cross-examined on her affidavit. Those are issues that fall
    within the purview of the judge who will hear Mothers motion for advance costs
    in a few days.

[25]

The
    costs of todays motion and attendance are reserved to the judge hearing the
    advance costs motion.

David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Broadgrain Commodities Inc. v. Continental Casualty
    Company (CNA Canada), 2018 ONCA 438

DATE: 20180510

DOCKET: C64253

Doherty and Pepall JJ.A. and Gray J. (
ad hoc
)

BETWEEN

Broadgrain Commodities Inc.

Plaintiff

(Appellant)

and

Continental
    Casualty Company

carrying on business as CNA
    Canada

Defendant

(Respondent)

Rui Fernandes, James Manson, and Sean Lawler, for the
    appellant

Marc Isaacs and Hilary Weise, for the respondent

Heard: April 27, 2018

On appeal from the judgment of Justice Patrick J. Monahan
    of the Superior Court of Justice, dated August 3, 2017, with reasons reported
    at 2017 ONSC 4721.

REASONS FOR DECISION

[1]

The appellant, Broadgrain Commodities Inc., sold 26 containers of sesame
    seeds to Beidahuang Grain Group Co. Ltd. (Beidahuang).  They were to be shipped
    CIF (cost, insurance, freight) from Tin Can Island in Nigeria to Xingang in China.

[2]

Under the contract between the appellant and Beidahuang:

·

title to the goods passed to Beidahuang on its payment to the
    appellant;

·

the risk of loss or damage to the goods passed to Beidahuang when
    the goods were stuffed and sealed for transport;

·

the appellant was to purchase insurance on behalf of Beidahuang
    to insure against Beidahuangs risk of loss or damage to the goods during
    transit; and

·

Beidahuang granted the appellant a security interest in the
    goods.

[3]

The goods were loaded on board the transport vessel on October 15, 2014.
    Beidahuang paid the appellant for the goods on December 12, 2014.  The goods
    arrived in China on December 17, 2014.  The goods had been damaged during
    transit, but the timing of the damage could not be determined.  The cargo was
    unfit for human consumption and was sold for salvage.  Beidahuang kept the
    salvage proceeds.

[4]

The goods were insured by the respondent, Continental Casualty Company
    carrying on business as CNA Canada, under a policy of marine insurance in
    favour of the appellant.  The appellant sought compensation from the respondent
    under the insurance policy, but the respondent denied coverage.  The appellant
    then sued the respondent, who subsequently brought a motion for summary
    judgment.

[5]

The motion judge granted summary judgment dismissing the appellants
    action.  He reasoned that the appellant had an insurable interest in the
    shipped goods.  However, he concluded that the appellant did not sustain any
    loss as it was paid in full by Beidahuang.  In doing so, he considered the
    appellants bald assertion, with no supporting documentation or detail, that
    the appellant was short-paid on subsequent shipments to Beidahuang, to be
    inadequate.  As such, there was no genuine issue requiring a trial.

[6]

The appellant appeals from that dismissal and also seeks to admit fresh
    evidence.  The respondent cross-appeals the motion judges finding that the appellant
    had an insurable interest.

[7]

The motion judge was alive to the principles governing summary judgment
    motions that were described in
Hryniak v. Maudlin
, 2014 SCC 7, [2014]
    1 S.C.R. 87.  On a summary judgment motion the parties are expected to put
    their best foot forward and the court will assume that all necessary evidence
    has been tendered.  See
Chernet v. RBC General Insurance Company
, 2017
    ONCA 337, 11 M.V.R. (7th) 1, at para. 12; and
Airex Inc. v. Ben Air System
    Inc
.
, 2017 ONCA 390, 48 C.B.R. (6th) 200, at para. 17.  A motion
    judge is entitled to presume that the evidentiary record is complete and there
    will be nothing further if the issue were to go to trial:
Dawson v.
    Rexcraft Storage & Warehouse Inc
.
, 111 O.A.C. 201, at para. 17;
Sweda Farms Ltd. v. Egg Farmers of Ontario
, 2014 ONSC 1200, at paras. 27,
    33-34, affd 2014 ONCA 878, leave to appeal to SCC refused, [2015] S.C.C.A. No.
    97; and
Tim Ludwig Professional Corporation v. BDO Canada LLP
, 2017
    ONCA 392 at para. 54.  A motion judge is not required to resort to the summary
    judgment enhanced powers to remedy a partys evidentiary shortcomings.

[8]

It is of assistance to put the appellants lack of evidence of loss in
    context.

[9]

The appellant pleaded that the shipments were damaged by contact with
    water, resulting in a loss of $550,081.38 USD to the appellant.  The
    appellants affidavit of documents and examination for discovery were silent on
    any evidence of loss.  The issue of a loss based on subsequent short-payments
    by Beidahuang was first raised in an affidavit filed in response to the
    respondents summary judgment motion.  The affidavit was sworn by the
    appellants representative, Taimy Cruz.  As mentioned, the motion judge found
    that she baldly asserted that the appellant was short-paid on subsequent
    shipments to Beidahuang.  As stated by the Supreme Court in
Guarantee Co.
    of North America v. Gordon Capital Corp
.
, [1999] 3 S.C.R. 423, at
    para. 31: [A] self-serving affidavit is not sufficient in itself to create a
    triable issue in the absence of detailed facts and supporting evidence (citations
    omitted).

[10]

Here,
    no evidence of any kind was filed in support of the purported short-payments:
    no dates, no amounts, no invoices, no credit statements, nothing.  Nor was
    there any explanation given for the absence of any supporting details or
    documentation. Despite having the opportunity to provide details and
    documentation of this alleged loss, including an undertaking given on Ms.
    Cruzs cross-examination, none was forthcoming.  Nor was the respondent advised
    of these alleged offsetting payments until the litigation was commenced.

[11]

The
    appellant argues that the expert evidence upon which it relies provides that it
    is common practice for buyers and sellers who frequently transact with one
    another to agree to offset claim monies against future transactions.  However,
    expert opinion of any practice in the industry to short-pay on subsequent
    shipments cannot serve to remedy the appellants failure to provide any
    evidence of loss, be it that of the appellant or that of Beidahuang.

[12]

There
    was no palpable and overriding error, and deference is owed to the motion
    judges conclusion that the appellant was paid in full and that there was no
    credible evidence to the contrary.

[13]

For
    these reasons, we would dismiss the appeal.

[14]

Given
    this disposition, it is unnecessary to address the cross-appeal of the
    respondent.  In oral submissions, the respondent conceded that resolution of
    the first issue in its favour rendered the subject matter of the cross-appeal
    moot.  Furthermore, the argument before this court was advanced on a different
    basis than the argument before the motion judge.  The motion judge addressed
    whether the appellant had an insurable interest in the goods notwithstanding
    the transfer of the risk of loss.  Before us, the issue devolved into a
    question of whether the appellant had standing to pursue a loss incurred by Beidahuang.
     Quite apart from the fact that the loss is not so characterized in the
    appellants statement of claim, it would be inappropriate to decide an issue on
    a basis raised for the first time before this court.

[15]

The
    motion to admit fresh evidence also must fail.  The second McGregor affidavit,
    which the appellant seeks to admit, was available at the time of the motion but
    was not filed.  More importantly, it would not have affected the outcome.

[16]

For
    these reasons, the appeal and the motion to admit fresh evidence are dismissed,
    and the cross-appeal is dismissed as being moot.  The appellant is to pay the
    respondent $38,000 in costs of the appeal on a partial indemnity scale inclusive
    of disbursements and applicable taxes.

Doherty J.A.

S.E. Pepall J.A.

D.K. Gray J. (ad hoc)


COURT OF APPEAL FOR ONTARIO

CITATION: Butler v. Royal Victoria Hospital, 2018 ONCA 409

DATE: 20180501

DOCKET: C63898

LaForme, Epstein and Pardu JJ.A.

BETWEEN

Sarah Butler, Luke Butler, James Butler and Isaac
    Butler, minors by their Litigation Guardian Jaye Butler and Robert Butler and
    the said Jaye Butler

Plaintiffs (Respondents)

and

Royal Victoria Hospital
,
P. Bates
, K. Rina, K. Corvari, W. Dekleyne, A.
    Fenton, A.M. Cichowicz, T. Haney,
J. Stuart
, E.
    Reyes, C. Stewart, S. Causey, T. Whitty, V. Ho and M. Hazlett

Defendants (
Appellants
)

Valerie Wise and Rozmin Mediratta, for the appellants

Gavin MacKenzie and Brooke MacKenzie, for the
    respondents

Heard: April 9, 2018

On appeal from the judgment of Justice John R. McCarthy of
    the Superior Court of Justice, dated May 5, 2017, and the costs decision, dated
    October 2, 2017.

REASONS FOR DECISION

BACKGROUND

[1]

In September 2008, Sarah Butler was diagnosed with hypotonic cerebral
    palsy. Sarahs condition was caused by hospital nurses negligent artificial
    rupture of her membranes at the birth of her and her twin brother on January
    26, 2007.

[2]

Sarahs impairments and deficits affect gross and fine motor skills,
    speech, cognition, learning and behaviour  they are serious and permanent. In
    order to cope with her disabilities and to enhance her quality of life, Sarah
    will require physiotherapy, speech-language therapy, occupational therapy and equipment
    and various other forms of assistance for the balance of her life.

[3]

Only at the beginning of the trial did the appellants admit they fell
    below the standard of care. That admission left the issues of causation and damages
    to be determined. In particular, the appellants submitted
Sarahs cognitive and behavioural issues were not
    entirely caused by the birth injury and that the claims under various heads of
    damages were excessive.

[4]

The parties agreed to file reports from their respective expert economists
    and argued the issue of damages for the loss of future income without calling
viva
    voce
evidence of these experts. Accordingly, neither expert testified nor
    was cross-examined, and the trial judge was tasked with assessing their
    evidence through their written reports.

[5]

After a five-and-a-half-week trial, in comprehensive reasons for
    judgment the trial judge
held that the birth
    injury was the sole cause of the numerous conditions that were negatively affecting
    Sarah. He
awarded the respondents $5,568,393 in damages, which included
$1,881,846 for future loss of income
.
[1]
The trial judge, in separate reasons for decision, fixed the respondents costs
    in the amount of $2,201,259 inclusive of fees, HST, and disbursements. The fee
    portion of the costs award totaled $1,503,466.

ANALYSIS

[6]

The trial judges findings involving causation and that Sarah will not
    be employable are not challenged by the appellants on appeal. What is
    challenged is his decision with respect to the award for future loss of income
    and the issue of costs.

[7]

Specifically, the appellants submit the trial judge erred in two
    respects when deciding the issue of Sarahs future income loss, namely: (i) his
    finding that Sarah would have completed college; and (ii) his approach to
    contingencies. The appellants submit the loss of future income portion of the
    award of
$1,881,846
should be reduced to
    $821,109. They also seek leave to appeal the fee portion, $1,503,466, of the
    trial judges award of costs.

[8]

As we will explain, we reject the appellants submissions that the trial
    judge erred. We see no reason to interfere with the exercise of his discretion
    in the assessment of damages or in his determination of costs.

[9]

First, the trial judges finding that there was a real and substantial
    possibility that Sarah would have graduated from college, but not university,
    and would have been employed full time if it were not for the birth injuries
    she sustained is entirely reasonable. In making this finding, the trial judge
    properly weighed the evidence and neither ignored relevant evidence nor failed
    to consider a relevant factor in a legal test. There was ample evidence before
    him to support his conclusion that Sarah probably would have completed college
    but for the appellants negligence. The appellants have failed to demonstrate
    any reason why this court should disturb his conclusion.

[10]

Second,
    the appellants submit that the expert statistics the trial judge relied on are
    based upon the wrong average earnings and do not include any negative
    contingencies. They rely on their experts criticism of the respondents expert
    evidence that they say was ignored or misapprehended by the trial judge. We
    disagree.

[11]

Although
    trial judges are entitled to adjust an award for future loss of income to
    account for general contingencieswhether upwards or downwardsit is not an
    error of law for the trial judge to decline to do so: see
Graham v. Rourke
,
75 O.R. (2d) 622 at p. 636;
Gerula v Flores
, [1995]
    O.J. No. 2300, at para. 41. In any case, we are not satisfied that the
    references the appellants referred us to, said to illustrate the trial judges
    error, are as clear and obvious as they contend. It is certainly arguable that
    an inference is available that both positive and general contingencies could be
    drawn from all the evidence: see
Beldycki Estate v. Jaipargas
, 2012
    ONCA 537, 295 O.A.C. 100;
Gerula
, at para. 41.

[12]

While
    the trial judge based his assessment on the plaintiffs experts starting point
    of female average full time earnings to age 65, it was open to him to conclude
    that temporary absences from the workforce would be offset by benefit programs
    such as employment or disability insurance.  He was not obliged to make a
    further deduction for non-participation in the workforce.  Calculation of the
    future loss of income of any child, let alone one born profoundly disabled is
    not an exact science.

[13]

Here the trial judge was required to determine the correct
    inferences to be drawn from the evidence of expert witnesses whose credibility
    was not in issue, and who, by party agreement, did not testify. These
    circumstances, however, do not change the need to show deference to the trial
    judges findings of fact.  As Sopinka and Gelowtiz put it in
The Conduct of
    An Appeal
, 3rd ed.

(Markham: LexisNexis Canada, 2012) at pp. 74-75:

This traditional principle of the English courts  that an
    appellate court is as well-placed to draw inferences from primary facts as the
    trial court.has been displaced by the view that an appellate court should not readily
    interfere with inferences drawn from established facts by trial courts. On
    several occasions, the Supreme Court of Canada has emphasized that restraint
    should be exercised when appellate courts contemplate interfering with the
    factual findings of a trial judge based solely on differing inferences or
    conclusions drawn from uncontradicted facts.

[14]

It
    is not the role of this court to substitute its award of damages for that of
    the trial judge unless there is an error of law or a wholly erroneous estimate
    of the damages: see
Gerula
. The appellants have not convinced us that
    this has occurred in this case.

COSTS

[15]

The
    appellants accept the trial judges methodology, however, they submit that he erred
    in principle or that the costs award was plainly wrong. We find no error in
    principle, nor can we conclude that the award is plainly wrong.

[16]

The
    parties addressed the issue of costs by way of written submissions in respect
    of a complex trial that lasted five weeks. The trial judge noted that this case
    involved more than eight years of litigation leading up to trial, which
    included days of examinations for discovery, multiple pre-trials, and countless
    exchanges of correspondence.

[17]

As we noted earlier, the appellants accept the trial
    judges methodology in deciding the costs issue. However, they
submit
    that he erred: (i) in applying a 27% factor for substantial indemnity costs;
    and (ii) in failing to consider that respondents trial counsel had devoted
    more time to the matter before the offer to settle than after. We disagree.

[18]

The
    trial judge was not required to adopt a weighted average of partial indemnity
    and substantial indemnity costs. It is worth repeating that a costs award does
    not have to be measured with exactitude; rather, it should reflect a fair and
    reasonable amount that should be paid by the unsuccessful parties:
Zesta
    Engineering Ltd v. Cloutier
(2002),
21 C.C.E.L. (3d) 161
,
    at para. 4.

[19]

Leave
    to appeal a costs order will not be granted except in obvious cases where the
    party seeking leave convinces the court there are strong grounds upon which
    the appellate court could find that the judge erred in exercising his
    discretion:
Brad-Jay Investments Limited v. Village Developments Limited
(2006),
218 OAC 315
, at para. 22. We are not persuaded that
    this is an appropriate case for granting leave

DISPOSITION

[20]

The
    appeal is dismissed and leave to appeal costs is denied. Costs of the appeal
    are awarded to the respondents in the amount of $37,500, inclusive of
    disbursements and HST.

H.S. LaForme J.A.

Gloria Epstein J.A.

G. Pardu J.A.

[1]
The award was revised from $5,236,693.29 to $5,568,393.00 in Supplementary
    Reasons for Judgment dated September 29, 2017.


COURT OF APPEAL FOR ONTARIO

CITATION: Carr v. Condon, 2018 ONCA 509

DATE: 20180531

DOCKET: C64005

Juriansz, Benotto and Fairburn JJ.A.

BETWEEN

Sharon Mae Carr

Applicant
(Appellant)

and

Timothy Condon

Respondent
(Respondent in Appeal)

Aaron Franks and Michael Zalev, for the appellant

Kirsten Hughes, Larissa Bazoian and Stephen Grant, for
    the respondent

Heard and released orally: May 30,
    2018

On appeal from the order of
    Justice Paul R. Sweeny of the Superior Court of Justice dated, May 29, 2017.

REASONS FOR DECISION

[1]

The appellants motion to change her spousal support was dismissed. She
    appeals on the basis that the motion judge erred by not awarding compensatory
    support.

[2]

The parties were married for 21 years. They have two children who are
    now adults. The respondent was a successful senior executive. The appellant did
    not work outside the home. Upon separation, the parties attended mediation and
    reached an agreement which was incorporated into a consent order in 2012. The
    order provided that the respondent pay $12,000 per month in spousal support
    based on his annual salary of approximately $444,000 plus 27% of his incentive
    employment income. This percentage added significantly to the appellants
    support. For example, by 2017, her support was over $600,000. The estimate for
    2018 is over $700,000. The separation agreement imputed an annual income to her
    of $30,000.

[3]

The order contemplated a review in 2017. The parties equalized their
    property and each left the marriage with approximately $1.9 million.

[4]

The motion judge found that the respondents income had increased and
    that this constituted a material change warranting a review. The parties agreed
    to postpone the 2017 review to 2020. Consequently, the motion judge viewed his
    task as a limited variation application and not a
de novo
assessment.
    Nonetheless, the motion judge considered the factors in s. 17(7) of the
Divorce
    Act
and the Spousal Support Advisory Guidelines. The motion judge addressed
    compensatory support and concluded that the economic disadvantages arising from
    the marriage had been properly addressed. The motion to change spousal support
    was dismissed.

[5]

The appellant submits that in considering compensatory support, the
    motion judge misunderstood the principles in
Moge v. Moge
, [1992] 3
    S.C.R. 813. He argues that, had the motion judge properly considered these
    factors, he would have awarded compensatory support.

[6]

We do not agree.

[7]

The motion judge set out and considered the principles of compensatory
    support as he was required to do under s. 17. He addressed the Spousal Support
    Advisory Guidelines and concluded that no additional support was necessary to
    achieve the objectives in the Act. Read as a whole, his reasons indicate that
    he was alive to the compensatory factors, properly considered them and
    conducted the broad and expansive analysis contemplated by
Thompson v.
    Thompson
, 2013 ONSC 5500 at para. 57.

[8]

The standard of review on all matters relating to support is highly deferential.
    Appellate courts should not interfere with support orders unless the reasons
    disclose an error in principle, a significant misapprehension or the award is
    clearly wrong: see
Hickey v. Hickey
, [1999] 2 S.C.R. 518 at paras
    11-12.

[9]

There was no legal error in the motion judges approach to the motion to
    change support, no error in principle and no significant misapprehension of the
    evidence. Nor is the award clearly wrong.

[10]

The
    appeal is therefore dismissed with costs fixed in the amount of $25,000 all
    inclusive.

R.G. Juriansz J.A.

M.L. Benotto J.A.

Fairburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Chinese Publications for Canadian Libraries Ltd. v.
    Markham (City), 2018 ONCA 413

DATED: 20180502

DOCKET: C64066

Doherty and Pepall JJ.A. and Gray J. (
ad hoc
)

BETWEEN

Chinese Publications for Canadian Libraries Ltd.

Plaintiff (Appellant)

and

City of Markham and Markham Public Library

Defendants (Respondents)

Qiang Li Cao, for the plaintiff (appellant)

David G. Boghosian and Magdalena Fish, for the defendants
    (respondents)

Heard:  April 27, 2018

On appeal from the order of Justice Kristjanson of the Superior
    Court of Justice, dated June 20, 2017.

REASONS FOR DECISION

[1]

This is an appeal from a summary judgment proceeding in which the
    appellants claim was dismissed.

[2]

The trial judge found that the operative terms of the contract allowed
    the respondents to terminate the agreement without cause on 30 days notice.

[3]

The motion judge found that the respondents exercised that right in good
    faith. Her interpretation of the contractual provisions reveals no error. Her
    factual findings were warranted on the record.

[4]

We cannot interfere on appeal.

[5]

We note some uncertainty as to the exact date on which the notice became
    effective. However, whether the notice took effect in March, April or mid-May
    (as the respondents accept), there was no evidence that the respondents did not
    make whatever payments it was obliged to make during the notice period.

[6]

The allegations of procedural unfairness are without merit. Mr. Cao was
    given a full opportunity to put the appellants position forward in writing and
    orally. The motion judge fully appreciated that position. Any difficulties Mr.
    Cao has with English did not materially prejudice the appellant or impair the
    appearance of procedural fairness.

[7]

Leave to appeal a cost order is granted sparingly. There are no grounds
    to grant leave to appeal in this case. We do not accept the submission that the
    respondents made the matter unnecessarily complicated and thereby incurred
    unnecessary costs. In some respects, this was a factually complicated matter.

[8]

The appeal is dismissed.

[9]

If the respondents advise the court within seven days, that they are not
    seeking costs of the appeal, the appeal shall be dismissed without costs. If
    the respondents choose to seek costs, they shall serve and file written
    submissions, of five pages or less, within 21 days of the release of these
    reasons. The appellant shall have 21 days from the service of those written
    submissions to serve and file its submissions on costs. Those submissions shall
    not exceed five pages.

Doherty J.A.

S.E. Pepall J.A.

D.K. Gray J. (
ad
    hoc
)