COURT OF APPEAL FOR ONTARIO

CITATION: Chitsabesan v. Yuhendran, 2016 ONCA 105

DATE: 20160205

DOCKET: C59537

Juriansz, Hourigan and Brown JJ.A.

BETWEEN

Janani Nicola Chitsabesan

Applicant (Respondent)

and

Ajanthan Yuhendran

Respondent (Appellant)

Steven M. Bookman, Gillian H. Bookman and Jasmine
    Jadubir, for the appellant

Michael G. Weissenborn, for the respondent

Heard: January 7, 2016

On appeal from the order of Justice Craig Perkins of the Superior
    Court of Justice, dated September 18, 2014, with reasons reported at 2014 ONSC
    5395.

By the Court:

Overview

[1]

This is the appellant fathers
    second appeal in this family law case. He first appealed to the Superior Court
    from the judgment made after trial in the Ontario Court of Justice that awarded
    custody of a three year old child to the respondent mother, allowed the
    application of the mother to relocate from Ontario to England, and prescribed
    access.

[2]

The first appeal judge affirmed
    the trial judges decision on custody, relocation and access but remitted the
    final order to the trial judge to correct any errors or inconsistencies in its
    wording and to adjudicate on any particular matters that were not dealt with as
    completely as the judge desires in her reasons for decision or in the order
    itself. He added The trial judge may determine whether to admit oral evidence
    or affidavit evidence on these matters and whether to receive oral submissions
    or only written submissions.

Standard of Review

[3]

At the outset it is important to
    note the narrow scope of appellate review. A high level of deference ordinarily
    due to a trial judge in family law matters intensifies on a second appeal. It
    is useful to keep in mind what the Supreme Court of Canada said in
Hickey
    v. Hickey
, [1999] 2 S.C.R. 518, at para. 12:

There are strong reasons for the significant deference that
    must be given to trial judges in relation to support orders. This standard of
    appellate review recognizes that the discretion involved in making a support
    order is best exercised by the judge who has heard the parties directly. It
    avoids giving parties an incentive to appeal judgments and incur added expenses
    in the hope that the appeal court will have a different appreciation of the
    relevant factors and evidence. This approach promotes finality in family law
    litigation and recognizes the importance of the appreciation of the facts by
    the trial judge. Though an appeal court must intervene when there is a material
    error, a serious misapprehension of the evidence, or an error in law, it is not
    entitled to overturn a support order simply because it would have made a different
    decision or balanced the factors differently.

[4]

The Supreme Court said these
    remarks were equally applicable to orders concerning child custody:
Van
    de Perre v. Edwards
, 2001 SCC 60, [2001] 2
    S.C.R. 1014, at para. 11. In
Van de Perre
, the Supreme Court stressed once again that Finality
    is a significant consideration in child custody cases, maybe more so than in
    support cases, and reinforces deference to the trial judge's decision (para.
    13). The court also remarked that custody and access decisions are inherently
    exercises in discretion, and emphasized that that discretion is vested in the
    trial judge.

[5]

In short, the Supreme Court has
    made clear that it is not the function of an appellate court to impose the
    decision it would have made itself by engaging in a fresh analysis or by
    balancing the factors differently. This court can intervene in the decision
    below only if the judge erred in law or made a material error in the
    appreciation of the facts. This deferential approach is intensified on a second
    appeal such as in a case like this one.

First Issue: The Decision on Custody and Access

[6]

The appellant recognizes that the
    trial judge set out the correct legal framework but submits she made findings
    of fact in the complete absence of evidence, misapprehended evidence and
    speculated about matters not in the evidence. The appellant also submits the
    trial judge failed to give the maximum contact principle sufficient weight by
    allowing the respondent to relocate to England with the child.

[7]

The appeal judge properly reviewed
    the trial judges decision and reasons. The only questions before him were
    whether there was an error in law or a palpable and overriding error of fact
    that affected the outcome. As stated, the trial judge proceeded upon the proper
    legal framework and in our view the factual findings about which the appellant
    complains were permissible inferences from the evidence. It was for the trial
    judge to determine how the maximum contact principle would be weighed in the
    circumstances of the case. There is no basis to interfere with the appeal
    judges upholding the trial judges decisions about custody and relocation.

Second Issue: The Jurisdiction of the Appeal Judge to Remit
    the Matter to the Trial Judge

[8]

However, having upheld the trial
    judge, the appeal judge remitted the matter back to the trial judge for a
    further hearing. With respect, the appeal judge had no jurisdiction to do so.

[9]

Following the release of the trial
    reasons, the parties were unable to agree upon the form and content of the
    final order. As described by the appeal judge, at para. 7 of his reasons:

The final order resulting from the November 13, 2013 decision
    was signed on March 5, 2014 by the trial judge herself, after receiving drafts
    from both parties. In an endorsement of March 6, 2014, she said,

2. I have signed the Appendix A Order as filed by the
    applicant as it most closely resembles my decision as written.

3. I do agree, however, with the respondent that the draft
    order provided by his counsel is an improvement of my order and several items
    may have been easily reached by agreement. Having not been agreed upon, I
    cannot sign that version.

[10]

Based on the trial judges characterization
    of the appellants form of draft order as an improvement of my order, the
    appeal judge concluded that the trial judge had erred in failing to determine
    whether any issue needs to be reheard, or whether supplementary submissions are
    needed to deal with the proposed corrections, alterations, or additional terms:
    para. 28. The appeal judge also observed that a judge who is not
functus
    officio
can modify her decision, and r. 25(19)(c)
    of the
Family Law Rules
authorizes
    a judge to change, on motion, an order that needs to be changed to deal with a
    matter that was before the court but that it did not decide. This led the
    appeal judge to remit to the trial judge her order of November 13, 2013 to
    correct any errors or inconsistencies in its wording and to adjudicate on any
    particular matters that were not dealt with as completely as the judge desires
    in her reasons for decision or in the order itself.

[11]

With respect, the appeal judge
    erred in remitting the matter to the trial judge, for two reasons. First, the
    process to settle an order has a narrow purpose: to ensure that the formal
    order accurately sets out the intention of the court as reflected in the
    endorsement or reasons for decision: Paul Perell and John Morden,
The
    Law of Civil Procedure in Ontario,
2nd ed.
    (Toronto: LexisNexis, 2014), at para. 11.29. The process of settling an order
    is not an opportunity for either party to re-argue issues already decided in an
    effort to change the result set out in the judges reasons. Although a judge is
    not
functus officio
where the
    order has not been signed and entered and therefore retains jurisdiction over a
    matter, the instances in which it might be in the interests of justice to
    withdraw reasons of the court and rehear the case on the merits will be rare:
Pastore v. Aviva Canada Inc.
,
    2012 ONCA 887,
300 O.A.C. 355,
at para.
    9.

[12]

This is not one of those rare
    cases. The trial judge gave lengthy and comprehensive reasons to explain how
    she reached her decision on the issues of custody and access. As well, her
    reasons set out, in detail, the content of the final order on those issues.
    After reviewing the draft final orders submitted by the parties, the trial
    judge concluded that she would sign the draft submitted by the applicant as it
    most closely resembles my decision as written. In proceeding in that fashion,
    the trial judge did not commit any error. On the contrary, she properly
    followed the process under r. 25 of the
Family Law Rules
to settle her order.

[13]

Second, to the extent the appeal
    judge relied on r. 25(19)(c) as the basis for remitting the issues of custody
    and access back to the trial judge, he erred in so doing. Rule 25(19)(c) only
    permits a court to change an order that needs to be changed to deal with a
    matter that was before the court but that it did not decide In the present
    case, the appeal judge found that the trial judge had properly evaluated the
    law, made findings of fact and conclusions reasonably supported by the
    evidence, and came up with the best available overall conclusion on the issues
    of custody and access: para. 23. Because the trial judge had dealt with all the
    matters relating to custody and access placed before her for adjudication, r.
    25(19)(c) had no application in the circumstances of this case.

[14]

The respondent submits that
    paragraph 13 of the trial judges November 13, 2013 order entitled the appeal
    judge to remit the matter back because it stated that [a]ny necessary
    variations or enforcement court proceedings shall be in this court. That
    provision only applies to variation proceedings subsequent to the making of the
    final order, not to the type of rehearing of the original final order
    contemplated by the appeal judges remittance of the matter to the trial judge.

[15]

In sum, the appeal judge erred in
    concluding that, in the circumstances, he had the jurisdiction to remit to the
    trial judge her order of November 13, 2013. From that it follows that the trial
    judges subsequent custody and access order dated May 6, 2015 is of no force or
    effect, and her November 13, 2013 order remains in place.

Disposition

[16]

For these reasons, the appeal is
    allowed in part, the order of May 6, 2015 is set aside, and the order of
    November 13, 2013 is restored.

[17]

The parties agreed that the
    successful party on appeal should be awarded $10,000 in costs. However, there has
    been mixed success on this appeal. Although the appellant succeeded on the
    issue of the jurisdiction of the appeal judge to remit the issues of custody
    and access back to the trial judge, the appellant did not succeed in altering
    the basic terms of custody or access originally set by the trial judge. Accordingly,
    there will be no order as to the costs of this appeal.

Released: February 5, 2016 (RGJ)

R.G.
    Juriansz J.A.

C.W.
    Hourigan J.A.

David
    Brown J.A.


CITATION: Crate Marine Sales Limited (Re) 2016 ONCA 140

DATE: 20160222

DOCKET: M46103  C61243

COURT OF APPEAL FOR ONTARIO

Hourigan J.A. (In Chambers)

BETWEEN

In the
    Matter of the Receivership of Crate Marine Sales Limited F.S.

Crate
    & Sons Limited, 1330732 Ontario Limited, 1328559 Ontario Limited,

1282648
    Ontario Ltd., and 1382416 Ontario Ltd.

Harvey G. Chaiton and Doug Bourassa, for Crawmet Corp.,
    the moving party

James P.  McReynolds, for the appellant 2124915 Ontario
    Inc.

R. Brendan Bissell, for the A Farber & Partners
    Inc., the Receiver

Heard:  February 18, 2016

ENDORSEMENT

[1]

At issue on this motion is whether the appellant requires leave to
    appeal the order of Justice Penny, dated October 14, 2015, pursuant to s.
    193(e) of the
Bankruptcy and Insolvency Act
, R.S.C. 1985, c. B-3 (the

BIA
) or if it has an automatic right of appeal pursuant to s. 193(c)
    of the
BIA
. The appellant submits that it has an automatic right of appeal.
    Crawmet Corp., the moving party, submits that leave is required.

[2]

The appellants motion below sought a declaration that the receiver
    occupied Lagoon City Marina for a specified period and sought an order that the
    receiver pay occupation rent in the amount of $319,016.

[3]

The motion was dismissed. The motion judge held that the receiver did
    not occupy the marina. He further held that if occupation rent were owing, it
    should be valued at $319,016, less whatever the receiver paid for utilities.

[4]

On appeal, the threshold question that arises is whether under s. 193(c)
    of the
BIA
the property involved in the appeal exceeds in value ten
    thousand dollars.  If it does not then leave is required under s. 193(c).

[5]

There have been a number of cases from this court that have established
    the parameters for the interpretation of s. 193(c): see e.g.,
Robson Estate
    v. Robson
2002 CanLII 53241 (ONCA),
Business Development Bank of
    Canada v. Pine Tree Resorts
, 2013 ONCA 282, and
Ontario Wealth
    Management Corp. v. Sica
, 2014 ONCA 500. See also
Re Dominion Founding
    Co
., (1965) 8 C.B.R. (N.S.) 74 (Man. C.A.).

[6]

Two principles emerge from this case law:

(i)  given the broad
    nature of the stay imposed by s. 195 of the
BIA
, the right of appeal
    without leave under s. 93(c) must be clearly applicable.  In other words, it
    must be narrowly construed; and

(ii) the appeal must
directly
involve property exceeding $10,000 in value.

[7]

The moving party relies on the above-noted cases in support of its
    submission that leave is required. However, when the cases are reviewed
    carefully it is clear that in each case the appeals did not directly involve
    property exceeding $10,000 in value.

[8]

For example, in
Robson
the appeal was from a procedural order
    (i.e., a dismissal of a motion declaring an action a nullity and beyond the
    jurisdiction of the Bankruptcy Court). In
Ontario Wealth Management
    Corporation
the issue was not about the payment of money, but a question
    of priorities. In
Business Development Bank of Canada
the issue was
    the appointment of a receiver.

[9]

In my view, these cases are distinguishable from the present case. Here
    the appeal is only of the decision of the motion judge that the receiver did
    not occupy the marina. There is no appeal taken from the finding that if
    occupation rent is owing then the proper amount payable is $319,016.00 less
    utility costs.  Therefore, if the appeal is successful and the receiver is
    liable for occupation rent, then the amount in question is final without
    further recourse to court action.

[10]

This
    is not a situation, like in the cases cited by the moving party, where the
    property is secondary to the appeal.  To the contrary, central to this appeal
    is the issue of liability for a fixed sum far in excess of $10,000.  I find
    that property with a value in excess of $10,000 is directly involved on this
    appeal.  Accordingly, I would dismiss the motion and order that the appeal
    proceed without the requirement of leave of this court. The respondents shall
    have until March 18, 2016 to file their factum.

[11]

Costs
    of the motion inclusive of fees, disbursements and applicable taxes are payable
    to the appellant by the moving party in the amount of $2,500 within 30 days.

C.W.
    Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Dysart, Dudley, Harcourt, Guilford, Harburn,
    Bruton, Havelock, Eyre and Clyde (United Townships) v. Mohammed, 2016 ONCA 153

DATE: 201650225

DOCKET: M45559 (M45477)

Gillese, Hourigan and Pardu JJ.A.

BETWEEN

The Corporation of the United Townships of
    Dysart, Dudley, Harcourt, Guilford, Harburn, Bruton, Havelock, Eyre and Clyde

Applicant (Responding Party)

and

Jameel Hosein Mohammed also known as Adolphus
    Cecil Wilson

Respondent (Moving Party)

AND BETWEEN

Her Majesty the Queen in Right of Ontario

Applicant (Responding Party)

and

Jameel Mohammed also known as Jameel Abdool
    Hosein Mohammed, Abdool Mohammed, Adolphus Cecil Wilson, Adolphus Wilson

Respondent (Moving Party)

Jameel Mohammed, acting in
    person

Nikita Rathwell, for the responding party Her Majesty
    the Queen in Right of Ontario

No one appearing for the responding party the
    Corporation of the United Townships of Dysart, Dudley, Harcourt, Guilford, Harburn,
    Bruton, Havelock, Eyre and Clyde

Heard: February 22, 2016

ENDORSEMENT

[1]

The moving party, Mr. Mohammed, was the subject of two separate
    applications to have him declared a vexatious litigant. One application was
    brought by Her Majesty the Queen and the other by the Corporation of the United
    Townships of Dysart, Dudley, Harcourt, Guilford, Harburn, Bruton, Havelock,
    Eyre and Clyde. Justice Loukidelis heard the applications together, as they are
    related. In orders dated October 16, 2007 (the Orders), Mr. Mohammed was
    declared a vexatious litigant pursuant to s. 140(1) of the
Courts of
    Justice Act
, R.S.O. 1990, c. C.43
.

[2]

In July 2011, Mr. Mohammed brought a motion to extend the time to file
    an appeal of the Orders. On July 29, 2011, Juriansz J.A. dismissed the motion,
    stating that he was not satisfied there was a valid explanation for the delay
    in bringing the motion or that Mr. Mohammeds proposed appeal had any merit.

[3]

On August 29, 2013, Mr. Mohammed brought another motion for the same
    relief. Weiler J.A. dismissed the motion because, in her view, the motion was
    an attempt to relitigate the decision of Juriansz J.A.

[4]

A further motion to the same effect was brought and dismissed by a
    single judge of this court on September 18, 2015.

[5]

Mr. Mohammed moves before this court to set aside the decision of
    September 18, 2015, and grant him an extension of time to file notices of
    appeal in relation to the Orders.

DISPOSITION

[6]

The motion is dismissed. The matter is
res judicata

and
    the motion is an abuse of process.

E.E. Gillese
    J.A.

C.W. Hourigan J.A.

G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Fanshawe College of Applied Arts and Technology v.
    Au Optronics Corporation, 2016 ONCA 131

DATE: 20160211

DOCKET: M46040 &
    M46051 (C60670)

Huscroft J.A. (In Chambers)

BETWEEN

The Fanshawe College
    of Applied Arts and Technology

Plaintiff/Appellant

and

AU Optronics Corporation
, Chi Mei Corporation,

Chi Mei
    Optoelectronics Corporation, Nexgen Mediatech Inc.,

and
Hannstar
    Display Corporation

Defendants/
Respondents

Paul J. Bates and Kerry McGladdery-Dent, for the
    appellant Fanshawe College

J. Kenneth McEwan, for the respondent AU Optronics
    Corporation

John Callaghan, for the respondent Hannstar Display
    Corporation

Heard:  February 8, 2016

ENDORSEMENT

[1]

Two motions are before the court.

[2]

The first concerns Fanshawe College of Applied Arts and Technologys (Fanshawe)
    appeal from the order of the motion judge denying a request to amend its
    statement of claim to add MASS Engineered Design Inc. (MASS) as a plaintiff
    in its class action against AU Optronics Corp (AU) and HannStar Display Corp.
    (HannStar). The motion judge concluded that the proposed amendments expanded
    the scope of Fanshawes claim and that MASSs claim was statute-barred.

[3]

Fanshawe says that paras. 61 to 85 of the respondent HannStars factum
    and paras. 49 to 88 of the respondent AUs factum raise issues that go beyond
    the scope of the motion judges reasons and its appeal. It seeks an order
    striking these paragraphs or, in the alternative, leave to file a reply factum.
    The respondents oppose the motion to strike but consent to the filing of a
    reply factum.

[4]

The second motion is brought by the respondents, in the context of their
    appeal from an order by the motion judge dismissing their motion for summary
    judgment against Fanshawe. The motion judge concluded that the discoverability
    rule applies to the limitation period in the
Competition Act,
R.S.C. 1985, c. C-34
; that the commencement
    of a prior Ontario action did not establish that the causes of action in both
    actions were reasonably discoverable on May 2, 2007; that commencement of the
    action more than two years following the first action was not an abuse of
    process; and that the issue of reasonable discoverability was a genuine issue
    requiring a trial.

[5]

The respondents appeal of the motion judges order to this court was
    quashed on the basis that the order was interlocutory. The Divisional Court has
    granted leave to appeal but no date for that appeal has been set.

[6]

The respondents move to consolidate their Divisional Court appeal with
    Fanshawes appeal outlined above, because the appeals arise from the same
    proceedings, were decided by the same motion judge, and concern the same facts
    and overlapping issues. Fanshawe opposes the motion. It says that the overlap
    concerns only a single issue  whether the limitation period prescribed in the
Competition
    Act
is subject to the discoverability rule  and that if it succeeds on
    its motion to strike the impugned paragraphs in the respondents factums, there
    will be no overlapping issues.

The motion to strike

[7]

Fanshawe submits that the impugned paragraphs should be struck because
    the respondents are attempting to leapfrog the leave to appeal requirement
    they would otherwise be required to meet concerning the issues it wants decided
    in this court. Fanshawe submits that a decision to strike the various arguments
    would not preclude them from being adjudicated in the Superior Court and
    Divisional Court in accordance with the usual practice.

[8]

I do not think it is appropriate to strike anything from the
    respondents factums. This is not to say that the Court of Appeal must deal
    with all of the issues and arguments when they are raised in this court. It is
    only to say that the respondents are entitled to raise them.

[9]

First, the appeal lies from the order, not the reasons for the order.
    The respondents are not limited to making arguments in response to the reasons
    proffered by the motion judge. Rule 61.12(3)(d) of the
Rules of Civil
    Procedure
allows the respondents to raise additional issues in their factums,
    and they can seek to sustain the order on any basis that is not an entirely new
    argument:
Perka v. The Queen
, [1984] 2 S.C.R. 232, at p. 240. Second,
    Fanshawe acknowledges that the paragraphs it proposes to strike are in no way
    inappropriate  they are not scandalous, frivolous, or futile. They raise
    arguments concerning defences to the proposed claim. Third, the arguments were
    raised by the respondents in their
fact
ums
    and in oral argument before the motion judge, who acknowledged that he did not
    deal with all of them in his decision.

[10]

Accordingly,
    Fanshawes request to strike the paragraphs from the respondents
factums
is dismissed. Fanshawe may serve
    and file a reply factum of no more than 15 pages by March 4, 2016. The
    respondents do not have a right of reply to the reply factum.

The motion to consolidate the appeals

[11]

The
    power to consolidate appeals arises under s. 6(2) of the
Courts of Justice Act
,
    R.S.O. 1990, c. C.43, which establishes this courts jurisdiction to hear and
    determine an appeal that lies to the Divisional Court.

[12]

The
    parties agree that the question whether the discoverability rule applies to the
    limitation period in the
Competition Act
arises in both Fanshawes
    appeal to this court and the respondents appeal to the Divisional Court.

[13]

Fanshawe
    submits that the Divisional Court could be expected to await this courts
    decision on the discoverability issue, so there is no risk of inconsistent
    decisions and no reason to consolidate.

[14]

In
    my view, it is appropriate to consolidate these proceedings. Fanshawes motion
    to amend its statement of claim was brought in response to the respondents
    motion for summary judgment. Fanshawes goal appears to have been to add MASS
    as a representative plaintiff for a different class of consumers as a safeguard
    against the possibility that its claim might be statute-barred. Not only is
    there an overlap on the discoverability issue, but there is also overlap in the
    evidence required for the two appeals.

[15]

Accordingly,
    I would order that the respondents appeal to the Divisional Court be
    transferred to the Court of Appeal and that these appeals be heard together.

[16]

Fanshawes
    appeal scheduled for February 26, 2016 is adjourned to a date to be set in
    consultation with the Appeal Scheduling Unit of the Court of Appeal, no later
    than June, 2016. The parties are free to submit a letter to the attention of
    the Senior Legal Officer requesting appeal management, if it is desired. This
    letter should provide details concerning why the appointment of an appeal
    management judge is appropriate.

[17]

Each
    respondent is entitled to costs of these motions in the amount of $1250,
    inclusive of all applicable taxes and disbursements.

Grant
    Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: First Contact Realty Ltd. (Royal LePage First
    Contact Realty) v. Prime Real Estate Holdings Corporation, 2016 ONCA 156

DATE: 20160225

DOCKET: C61001

Gillese, Hourigan and Brown JJ.A.

BETWEEN

First Contact Realty
    Ltd. c.o.b. as Royal LePage First Contact Realty

Plaintiff (Respondent)

and

Prime Real Estate Holdings Corporation

Defendant (Appellant)

Richard Quance, for the appellant

Eric Gionet, for the respondent

Heard: February 22, 2016

On appeal from the judgment of Justice Susan E. Healey of
    the Superior Court of Justice, dated September 3, 2015, with reasons reported
    at 2015 ONSC 5511.

ENDORSEMENT

THE APPEAL

[1]

The plaintiff real estate brokerage (Royal LePage) was granted summary
    judgment against the defendant corporation (Prime) in a judgment dated
    September 3, 2015 (the Judgment).  The Judgment orders Prime to pay
    approximately $100,000 plus HST, interest and costs.  That sum represents the
    amount of real estate commission owing on the purchase of a property in Barrie,
    Ontario.

[2]

Prime appeals.

[3]

In its factum, Prime submits that the motion judge erred in finding
    that:

1.

Royal LePage had
    not released Prime from its obligations under the Buyer Representation
    Agreement (BRA); and

2.

Royal LePage continued
    to assist Prime after September 10, 2012.

[4]

In making these findings, the motion judge relied, in part, on
    credibility determinations.  Prime contends that such credibility
    determinations could not be fairly made without a trial.  Consequently, it
    submits, the motion judge also erred in failing to find that there is a genuine
    issue requiring a trial, in accordance with rule 20.04(2)(a) of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg.
    194
.

[5]

In oral argument, Prime submitted that the motion judge erred in her
    articulation of the legal principles in
Hryniak v. Mauldin
, 2014 SCC 7,
    [2014] 1 S.C.R. 87, and stressed that, given the credibility dispute, the
    interests of justice required the motion judge to refer the matter to trial.

BACKGROUND IN BRIEF

[6]

Walter Doret is a real estate broker with Royal LePage.  Chris Hinn is
    Primes principal.

[7]

Doret acted for Hinn on a number of real estate transactions.  When
    Prime became interested in purchasing vacant lands in Barrie, Ontario (the
    Property), Hinn  acting on behalf of Prime  retained Doret and Royal LePage
    to act on its behalf.

[8]

The Property had once housed a Molson Brewery plant but later became
    home to a substantial commercial marijuana grow-op.  A restraint order was
    placed against the Property pursuant to the
Controlled Drugs and Substances
    Act
, S.C. 1996, c. 19

(the Restraint Order).

The Restraint
    Order prevented the owner from dealing with the Property without the written
    consent of counsel for the Attorney General of Canada.  It also caused
    complications and significant delays in Primes purchase of the Property.

[9]

During the course of the relationship, the parties executed three BRAs,
    all of which contained similar terms, apart from the fact that they covered
    different time frames.

[10]

On
    November 16, 2011, Doret prepared an agreement of purchase and sale on Primes behalf,
    in which Prime offered to purchase the Property for $7,350,000.  Due to
    complications arising from the Restraint Order and the resultant delays, the
    agreement was amended on 15 separate occasions between November 16, 2011, and July
    13, 2012.  Doret prepared each of the amendments.  Ultimately, on or about
    September 10, 2012, the agreement was terminated by a mutual release executed
    by the owner of the Property, Prime and their respective brokerages.  Prime was
    represented by legal counsel at the time.

[11]

On
    October 29, 2012, Prime entered into a second agreement of purchase and sale in
    respect of the Property.  This was within the time frame contemplated by the
    third and final BRA.  The purchase price, the Property and the buyer were
    identical to those in the first agreement.  However, the vendor had changed as
    Prime was proposing to purchase from First Ontario, who entered into the
    agreement and proposed to sell the Property under power of sale provisions
    contained in its charge against the Property.

[12]

The
    second agreement ultimately closed on September 19, 2013, at which time Prime
    bought the Property for $7,350,000.  This generated a real estate commission
    owing in the amount of just under $92,000.  Royal LePage rendered an invoice
    for the commission but Prime refused to pay it.

[13]

Royal
    LePage then sued for the unpaid commission, taxes, interest and costs.
    Thereafter, it brought the summary judgment motion which led to the Judgment
    and this appeal.

[14]

Before
    the motion judge, Prime contended that on September 10, 2012, the parties
    entered into a verbal agreement to terminate the BRA.  The motion judge
    rejected this contention.

[15]

First,
    the motion judge found that Hinns evidence, if accepted, was insufficient to
    establish the essential elements of an agreement.

[16]

Second
    and in any event, the motion judge found that no such agreement was made.  She
    set out numerous examples of evidence that was inconsistent with the alleged
    termination of the BRA.  She described Dorets continuing involvement after
    September 10, 2012.  Had the BRA been terminated, it made no sense that he
    would continue to assist in the purchase.  Furthermore, there was no evidence
    that Hinn or his lawyer suggested that Dorets inquiries and assistance after
    September 10, 2012, were unfounded or that he was to have no further
    involvement.  In addition, there was email correspondence that was inconsistent
    with the suggestion that the BRA had been terminated on the mutual agreement of
    the parties.

[17]

The
    motion judge also rejected Primes contention that Royal LePage had failed to
    fulfill its obligations under the BRA.  In so doing, she rejected, as false,
    Hinns affidavit evidence that Doret and Royal LePage had no further dealings
    with the Property after September 10, 2012.   The motion judge found that Doret
    assisted in Primes purchase of the Property.  She found that Doret continued
    to check in and offer his assistance with the deal, though there was little for
    him to do given that the matter was a complicated transaction being handled by
    legal counsel.  She found that Doret had worked diligently to prepare, and
    attempt to keep alive, the first agreement of purchase and sale and that the
    second such agreement, which eventually took effect, largely piggy-backed on
    those efforts.  The motion judge further found that Prime advanced this
    contention to seek to avoid its obligations under the BRA.

ANALYSIS

[18]

As
    noted above, Prime submits that the motion judge erred in her articulation of
    the legal principles established in
Hryniak
.

[19]

We
    do not agree.

[20]

At
    para. 20 of her reasons, the motion judge correctly noted that
Hryniak

directs that on a motion for summary judgment under rule 20.04, the court
    should first determine if there is a genuine issue requiring a trial based only
    on the evidence before it, without using the new fact-finding powers.  If there
    appears to be a genuine issue requiring a trial, the court should then
    determine if the need for a trial can be avoided by using the new powers under
    rules 20.04(2.1) and (2.2).  The court may, in its discretion, use those powers
    provided that their use is not against the interest of justice.  Their use will
    not be against the interest of justice if they will lead to a fair and just
    result and will serve the goals of timeliness, affordability and
    proportionality in light of the litigation as a while.

[21]

In
    the present case, the motion judge stated that she had no difficulty making the
    necessary findings of fact and that there was no need for a trial to reach a
    determination on the merits.  We see no error in that determination.

[22]

The
    other grounds of appeal rest on an attack of the motion judges findings of
    fact.  As counsel for the appellant conceded, those findings attract deference
    on appellate review.

[23]

These
    fact-based grounds of appeal were raised as issues below.  As indicated above,
    the motion judge gave thorough reasons for rejecting Primes contention that the
    parties had terminated the BRA and that Royal LePage ceased to assist it after
    September 10, 2012.  There is no need to repeat those findings.  In our view,
    the motion judges findings are solidly grounded in the evidence.  Indeed, on
    the record, they are virtually inescapable.

[24]

Accordingly,
    there is no basis for appellate intervention.

DISPOSITION

[25]

For
    these reasons, the appeal is dismissed with costs to Royal LePage fixed at
    $5,000, all inclusive.

E.E. Gillese
    J.A.

C.W. Hourigan J.A.

David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:  Georgina (Town) v. Blanchard, 2016 ONCA 122

DATE: 20160212

DOCKET: C60424

Hoy A.C.J.O., Pardu and Roberts JJ.A.

BETWEEN

The Corporation of the Town of Georgina

Respondent

and

Marvin Blanchard and 1124123 Ontario Limited

Appellants

AND BETWEEN

Marvin Blanchard,
    1124123 Ontario Limited and Baldwin 33, Inc.

Appellants

and

The Corporation of the
    Town of Georgina, Her Majesty the Queen in Right of Ontario and the Ontario Aggregate
    Resources Corporation

Respondent

Lawrence Hansen, for the appellants, Marvin Blanchard,
    1124123 Ontario Limited and Baldwin 33, Inc.

John R. Hart, for the respondent, The Corporation of the
    Town of Georgina

Heard:  February 2, 2016

On appeal from the judgment of Justice Barry G.A.
    MacDougall of the Superior Court of Justice, dated April 8, 2015.

ENDORSEMENT

Background

[1]

In the course of considering whether to grant the appellants a site
    alteration permit for a property in Georgina, the respondent, The Corporation
    of the Town of Georgina, relied on s. 239(2)(f) of the
Municipal Act, 2001
, S.O. 2001, c. 25
(the
Act
)
    to hold two
in camera
meetings. That section permits a municipality to
    depart from the normal requirement that all meetings be held in public if the
    subject matter being considered is advice that is subject to solicitor-client
    privilege.

[2]

The appellant requested that the respondent appoint an investigator
    under s. 239.2 of the
Act

to investigate if the subject matter
    considered at the

in camera
meetings indeed fell within the
    exception in s. 239(2)(f). Consistent with its practice, the respondent appointed
    Local Authority Services (LAS), a division of the Association of
    Municipalities of Ontario, as investigator and, as in all cases, LAS delegated
    its duties to the firm of Amberley Gavel Ltd. Brenda Glover, a lawyer,
    conducted the investigation on behalf of that firm. She concluded that the
    matter deliberated at the closed meetings was advice that is subject to
    solicitor-client privilege. The application judge dismissed the appellants
    subsequent application to set aside the investigators report.

[3]

The application judge concluded that the effect of ss. 223.16 and
    239.2(9) of the
Act

was that the court could only set aside the
    investigators report on the ground of lack of jurisdiction. He also rejected
    the appellants argument that the investigators reference in one paragraph of her
    report to a site alteration
agreement
(as opposed
    to an application) demonstrated that, in conducting her investigation, the
    investigator misdirected herself about the purpose and scope of her investigation
    and therefore exceeded her jurisdiction.

[4]

The appellants argue that the application judge made several errors. We
    address them in turn.

Did the application
    judge err in concluding that s. 223.16 of the
Act
applied to the investigator?

[5]

The appellants first, and principal, argument is that the application
    judge erred in concluding that the court could only set aside the
    investigators report on the ground of lack of jurisdiction. Under s. 239.1
    of the
Act
, a person may request that an investigation of whether a
    municipality was permitted to close all or part of a meeting to the public be
    undertaken: (a) by an investigator referred to in subsection 239.2 (1); or (b)
    by the Ombudsman appointed under the
Ombudsman Act
, if the municipality
    has not appointed an investigator referred to in subsection 239.2 (1).

[6]

Section 223.16 provides as follows:

No proceeding of the Ombudsman under this part shall be held
    bad for want of form, and, except on the ground of lack of jurisdiction, no
    proceeding or decision of the Ombudsman is liable to be challenged, reviewed,
    quashed or called in question in any court.

[7]

The appellants submit that the lack of jurisdiction limitation in s.
    223.16 applies only to investigations in respect of closed meetings conducted
    by the Ombudsman.

[8]

We reject this argument. In our view, it is clear that that the lack of
    jurisdiction limitation also applies to the investigator.

[9]

Section 239.2(9) of the
Act
provides that s. 223.16 (among
    others) applies with necessary modifications with respect to the exercise of
    functions described in this section. This section is s. 239.2 and the functions
    described in s. 239.2 include the function of an investigator to investigate
    in an independent manner, on a complaint made to him or her by any person, whether
    the municipality or a local board has complied with section 239  in respect of
    a meeting or part of a meeting that was closed to the public,
and to report on the investigation
 (emphasis added).

[10]

The
    investigator was appointed pursuant to s. 239.2 and exercised the function
    described in that section. Section 223.16 therefore applies with necessary
    modifications.

[11]

The
    necessary modifications in this context are to substitute investigator for
    Ombudsman, and report for decision. We therefore agree with the
    application judge that the effect of ss. 223.16 and 239.2(9) is that, in the
    face of a challenge arising out of the investigators exercise of her function
    under s. 239.2, the court can only set aside the investigators report on the
    ground of the investigators lack of jurisdiction.

[12]

Given
    our conclusion on this issue, we need not address the appellants arguments
    seeking to challenge the exercise by the investigator of her function under s.
    239.2 other than on the ground of lack of jurisdiction.

Did the
    application judge err in concluding that the investigators reference to a site
    alteration
agreement
(as opposed to an
    application) in her report was a misdescription and likely a typographical
    error?

[13]

The
    appellants second argument is that the application judge erred in concluding
    that the investigators reference to a site alteration
agreement
in one paragraph of her report was simply a misdescription and likely a
    typographical error. They renew their argument below that this reference demonstrates
    that the investigator misdirected herself about the purpose and scope of her investigation
    and therefore exceeded her jurisdiction.

[14]

We
    reject this argument. It is clear from the investigators report as a whole
    that the investigator understood that the matter before the respondent was a
    site alteration application, and not a site alteration agreement. The
    appellants have failed to establish lack of jurisdiction.

Should the investigators
    report be set aside because the municipality did not prove compliance with its
    duties under the
Act
in appointing the investigator?

[15]

The
    appellants third argument is that, even if the limitation in s. 223.16 applies
    to the investigator, such that the exercise by the investigator of her function
    under s. 239.2 cannot be challenged other than on the basis of lack of
    jurisdiction, it does not apply to the respondent municipality. They argue that
    the investigators report accordingly can and should be set aside because the
    respondent had a duty to demonstrate that it complied with s. 239.2(3) of the
Act
in appointing the investigator and it failed to discharge that duty. They submit
    that the respondent must prove the particular expertise of the investigator to
    investigate and advise whether the advice given in the closed meeting was
    subject to solicitor-client privilege.

[16]

Assuming
    but not determining that s. 223.16 does not limit the ability of an affected
    party to seek to set aside an investigators report because of a municipalitys
    non-compliance with s. 239.2(3), we nonetheless do not give effect to this
    argument.

[17]

Section
    239.2(3) requires that, in appointing an investigator, the municipality shall
    have regard to, among other matters, the importance of the matters listed in [s.
    239.2(5)]. Those matters are: (a) the investigators independence and
    impartiality; (b) confidentiality with respect to the investigators
    activities; and (c) the credibility of the investigators investigative
    process.

[18]

In
    oral submissions, the appellants concede that the respondent may well have
    complied with this section in appointing the investigator. Their argument is
    that the respondent has failed to prove that it did so. They argue that the
    respondent must prove the particular expertise of the investigator to
    investigate and advise whether the advice given in the closed meeting was
    subject to solicitor-client privilege. However, they provide no authority for
    their argument that a municipality is required to prove compliance with s.
    239.2(3).

[19]

We see no basis to impose such an onus on a municipality.
    Moreover, there is no reason to doubt that the respondent complied with s.
    239.2(3). The process in this case was transparent. The investigation was
    conducted by a lawyer. And, contrary to the appellants submissions, we would
    characterize the concept of solicitor-client privilege as a basic one.

Disposition and Costs

[20]

For
    the reasons set out above, we dismiss this appeal. The respondent shall be
    entitled to its costs of the appeal in the amount of $7500, inclusive of HST
    and disbursements.

Alexandra
    Hoy A.C.J.O.

G.
    Pardu J.A.

L.B.
    Roberts J.A.