COURT OF APPEAL FOR ONTARIO

CITATION: Basandra v. Sforza, 2016 ONCA 251

DATE: 20160406

DOCKET: C60979

Strathy C.J.O., Lauwers and Benotto JJ.A.

BETWEEN

Subash Basandra

Plaintiff

(Appellant)

and

Giuseppe Sforza

Defendant

(Respondent)

Gary Mazin and Supriya Sharma, for the appellant

Bruce Chambers, for the respondent

Heard: March 17, 2016

On appeal from the order of Justice Wendy Matheson of the
    Superior Court of Justice, dated August 10, 2015.

Lauwers J.A.:

[1]

This action arose out of a motor vehicle accident. The jury questions, as
    negotiated between trial counsel and accepted by the trial judge, did not oblige
    the jury to structure its award of damages in a manner that reflected the requirements
    of s. 267.8 of the
Insurance Act
, R.S.O. 1990, c. I.8. That section
    requires the trial judge to reduce jury damages awards for pecuniary losses by
    the amount of collateral benefits paid to the injured plaintiff. The defendant had
    the onus of proof regarding both the entitlement to these reductions and their
    amounts. The appellant submits the trial judge erred by reducing the jurys
    awards for past and future attendant care, medical/rehabilitation, and
    housekeeping costs from $105,000 to nil, in the absence of clear evidence on
    the appropriate quantum of any reduction
[1]
.

[2]

For the reasons set out below, I would dismiss the appeal.

The Factual and Legal Context

[3]

The appellant was injured in a motor vehicle accident. The jury found
    the respondent liable and, consistent with the jury questions, awarded the
    following damages to the appellant:

1.       damages
    for pain and suffering in the amount of $137,000;

2.       damages
    for the cost of past care, medical/rehabilitation and    housekeeping in the
    amount of $55,000;

3.       damages
    for the cost of future care, medical/rehabilitation        and housekeeping
    in the amount of $50,000;

4.       damages
    for past loss of income of $45,000.

[4]

Section 267.8 of the
Insurance Act
, provides that pecuniary damages
    awarded in a tort action shall be reduced by payments that the plaintiff
    received as collateral benefits, such as statutory accident benefits including
    payments for health care expenses and other pecuniary losses. Since the
    defendant would benefit, the onus is on the defence to show whether and how the
    reductions should be made:
Bannon v. McNeely
(1998)
, 38 O.R. (3d) 659, 159 D.L.R. (4th)
    223 (C.A.), at para. 74.

[5]

An award can only be reduced by a corresponding statutory accident benefit,
    on a benefit-by-benefit basis, under s. 267.8 of the
Insurance Act
. This
    reflects the concept that apples should be deducted from apples, and oranges
    from oranges: see
Bannon v. McNeely
, at paras. 49, 74;
Gilbert v.
    South
,
2015 ONCA 712, 127
    O.R. (3d) 526, at para. 44. For example, an award for housekeeping can be reduced
    by a housekeeping benefit, but not by a medical rehabilitation benefit.

[6]

The jury questions in this case unfortunately lumped together damages
    for medical/rehabilitation, attendant care, and housekeeping. It was impossible
    for the trial judge to parse the jurys award in order to make the necessary
    statutory reductions on a benefit-by-benefit basis.

[7]

Some time after the jury rendered its verdict, counsel informed the
    trial judge that they were unable to agree on the impact of collateral benefits
    on the pecuniary damages award. They moved before the trial judge for an order
    determining whether and how the lumped-up jury awards of $55,000 for past loss
    of care, medical/rehabilitation and housekeeping and $50,000 for future care,
    medical/rehabilitation and housekeeping should be reduced under the provisions
    of s. 267.8(4) and (6) of the
Insurance Act
to account for the
    statutory accident benefits received by the appellant for healthcare and
    housekeeping.

The Trial Judges Reasons

[8]

The trial judge accepted the appellants evidence that he had received a
    total of $81,658.67 for medical rehabilitation benefits, $58,271.76 for
    attendant care benefits, and $6,939.84 for housekeeping benefits. These amounts
    included a 2009 lump sum settlement that allocated $30,000 for past and future medical
    rehabilitation and $5,000 for past and future attendant care.  The trial judge
    noted that the 2009 settlement did not set out the respective proportions
    related to past and future costs.

[9]

The trial judge acknowledged that in light of
Bannon v. McNeely
,
    there is no question that it is the defendant that bears the onus of
    establishing beyond dispute that the deduction should occur. She added: Using
    the words of
Bannon
, I must look at what is feasible. In doing so, I
    must consider the objective of avoiding double compensation and also the
    fairness to the plaintiff required by comparing like amounts. She noted that
    the sheer quantum of the collateral benefits already received under the three
    heads was significantly higher than the jury award.

[10]

This
    led the trial judge to the conclusion that the jurys awards for past and
    future attendant care, medical/rehabilitation, and housekeeping costs should be
    reduced from $105,000 to nil:

As I look at those actual figures, the evidence about what
    those actual figures were for and the timing of the settlement
vis-à-vis
the trial, I conclude that the jury award should be reduced under s. 267.8 by
    the amount of those collateral benefits in order to avoid what I conclude would
    be a substantial and indeed complete double recovery by the plaintiff.

The Positions of the Parties

[11]

The
    appellant argues that the defence had the onus to prove how the jury award
    should be reduced. In the absence of clear guidance from the jury, the trial
    judge erred by reducing the jurys awards for past and future attendant care
    medical/rehabilitation and housekeeping costs from $105,000 to nil. The
    appellants position throughout was that the respondent, having agreed to the
    jury questions, can now not seek the benefit from a lack of specific
    information needed to implement the s. 267.8 deductions on an apples and apples
    basis.

[12]

The
    respondent argues that the lack of clarity in the jury questions is the fault
    of the appellant who ... was content to ask the jury to make a combined award
    for all expenses related to his health care, medical rehabilitation and
    housekeeping needs, and who should not now be permitted to separate the
    various heads of expenses so as to frustrate the application of s. 267. The
    respondent submits that the amounts received by the appellant by way of
    accident benefits roughly match the categories of damages awarded by the jury
    so that the mandatory reductions under s. 267.8 of the
Insurance Act

can be made without any risk that doing so might deny the appellant full
    compensation.

The Issue

[13]

There
    is a single issue in this case: did the trial judge err by reducing the jurys
    awards for past and future attendant care medical/rehabilitation and housekeeping
    costs from $105,000 to nil in the absence of clear evidence about the quantum
    of each collateral benefit?

Analysis

The Governing Principles

[14]

I
    begin by setting the broader context within which this issue is placed.

[15]

The
    system of compensation for injuries suffered in motor vehicle accidents in
    Ontario is a hybrid of no-fault insurance coverage and traditional tort law. While
    the ability to sue for injuries is limited, injured parties have access to
    no-fault benefits. This court laid out the competing policy objectives of
    Ontarios system in
Meyer v. Bright
, 15 O.R. (3d) 129, at p. 134,
    [1993] O.J. No. 2446 (C.A.), at para. 6:

In our view, the Ontario legislature enacted s. 266 and other
    related amendments to the Act for the purpose of significantly limiting the
    right of the victim of a motor vehicle accident to maintain a tort action
    against the tortfeasor. The scheme of compensation provides for an exchange of
    rights wherein the accident victim loses the right to sue unless coming within
    the statutory exemptions, but receives more generous first-party benefits,
    regardless of fault, from his or her own insurer.

See also
Chisholm v. Liberty Mutual Groups
(2002),
    60 O.R. (3d) 776, 217 D.L.R. (4th) 145 (C.A.), at para. 7.

The Threshold

[16]

The
    restriction or limitation on an injured partys right to sue the at-fault party
    for personal injury of a motor vehicle accident is described as the
    threshold. Under ss. 267.5(3) and (5) of the
Insurance Act
, the
    right to sue is removed unless the injured person has died or has sustained
    permanent serious disfigurement or permanent serious impairment of an
    important physical, mental or psychological function.

The Reduction of No-fault Benefits from Damage Awards

[17]

The
    statutory scheme aims at full compensation for the injured party whose injuries
    exceed the threshold. It also aims to prevent double compensation. This was
    explained by Finlayson J.A. in
Bannon v. McNeely
,
at para. 51. If the plaintiffs
    injuries meet the threshold:

the injured party receives the first-party no-fault benefits
    and can still maintain an action in tort to the full extent of the law against
    the tortfeasor subject (as any tort action always has been) to the principle of
    recovery in tort, i.e. that the injured party is to be compensated for the full
    amount of his or her loss but no more, as encapsulated in s. 267(1).

However, Finlayson J.A. went on to state, at para. 51,
    that [o]nce a statutory exemption to the limitation on the right to sue is
    established, the no-fault benefits do not replace the tort award, but rather
    they are deducted from any tort award to the extent required to prevent double
    recovery.

[18]

The
    purpose of s. 267.8 of the
Insurance Act
is to prevent double recovery
    by the plaintiff, which would amount to unjust enrichment. As Stephen E.
    Firestone observed at p. 20 of his article Deductibility of Collateral
    Benefits under Ontarios Three Automobile Insurance Schemes, (1998) 21 Adv. Q.
    1, s. 267.8 of the
Insurance Act
is essentially a codification
    of the principles of this courts decision in
Bannon v. McNeely
.

The Division of Labour between the Trial Judge and the Jury

[19]

The
    statutory regime creates a division of labour between the trial judge and the
    jury. The trial judge has sole responsibility for determining whether the
    plaintiffs injuries meet the threshold under ss. 267.5(3) and (5) of the
Insurance
    Act
.  The trial judge does this without the intervention of the jury and
    may dismiss the case even where the jury makes an award of damages to the
    plaintiff: see
Kasap v. MacCallum
,

[2001] O.J. No. 1719;
DeBruge
    v. Arnol
, 2014 ONSC 7044.

[20]

The
    trial judge also has the sole responsibility to reduce the jurys award to
    account for the plaintiffs receipt of collateral benefits, as required by
    s. 267.8 of the
Insurance Act.
This
    task is performed
after the jurys verdict has been rendered.

The Responsibilities of Counsel

[21]

Section
    267.8 of the
Insurance Act

creates several categories of
    statutory accident benefits to be taken into account as possible reductions in
    a jury award: income loss and loss of earning capacity (s. 267.8(1)); health
    care expenses, which includes attendant care costs by definition under s.
    224(1) of the Act (s. 267.8(4)); and other pecuniary losses such as
    housekeeping costs (s. 267.8(6)). In view of the benefit-by-benefit basis
    of the reductions, these categories must be taken as silos.

[22]

For
    the statutory scheme to operate properly, counsel must ensure that any
    settlement of a statutory accident benefit claim allocates the settlement funds
    among the heads of collateral benefits applicable in the instant case.

[23]

Similarly,
    counsel must ensure that jury questions are structured to permit the trial
    judge to carry out the reductions on a benefit-by-benefit basis, as required by
    s. 267.8 of the
Insurance Act
,
    where that is an issue in the action
. In this case the jury
    questions were negotiated between counsel for the appellant and the respondent
    and were provided to, and accepted, by the trial judge. She noted that neither
    side raised an issue about the compounded nature of these jury questions.

[24]

Jury
    questions in motor vehicle actions related to pecuniary losses typically refer
    to past losses and to future losses. I make two observations about this
    distinction. First, separate jury questions for past and future losses are
    necessary because the plaintiff bears different burdens of proof for each. With
    respect to past losses, the burden of proof is on the balance of probabilities.
    For future losses, the burden is somewhat relaxed and can be proven on the
    basis of substantial possibilities based on such expert or cogent evidence:
Schrump
    et al. v. Koot et al.
, 18 O.R. (2d) 337, at p. 340, [1977] O.J. No. 2502
    (C.A), at para. 13. The distinction between past and future losses is also
    necessary since pre-judgment interest is granted only for past losses.

[25]

Second,
    the division of jury questions into past and future is relevant to the reduction
    of collateral benefits for each category of benefits listed in s. 267.8 of the
Insurance
    Act
.
At issue in this case are health care benefits under s. 267.8(4)
    of the
Insurance Act
:

(4)  In
    an action for loss or damage from bodily injury or death arising directly or indirectly
    from the use or operation of an automobile, the damages to which a plaintiff is
    entitled for expenses
that have been incurred or will be
    incurred for health care
shall be reduced by the following amounts:

1.       All
    payments in respect of the incident that the plaintiff
has
    received or that were available before the trial
of the action for
    statutory accident benefits in respect of the expenses for health care.

2.       All
    payments in respect of the incident that the plaintiff has received before the
    trial of the action under any medical, surgical, dental, hospitalization,
    rehabilitation or long-term care plan or law. [Emphasis added.]

[26]

Section
    267.8(4) of the
Insurance Act
recognizes that an award may include
    damages for expenses that have been incurred [past] or will be incurred
    [future] for health care. It provides that the sum of those awards must be
    reduced by the amount of payments the plaintiff has received or that were
    available before the trial of the action for statutory accident benefits in respect
    of the expenses for health care. The plaintiffs entitlement to future, that
    is, post-trial, collateral benefits for health care is addressed in ss. 267.8
    (9) - (13) of the
Insurance Act
.

[27]

Under
    s. 267.8(4) of the
Insurance Act
,
    the total amount of any statutory accidents benefits settlement for past losses
    or for future expenses is to be combined f
or the purpose of the
    reducing the jurys awards in respect of those benefits. There was accordingly no
    need for the trial judge to consider separately the effect of the 5-6 year
    period during which one might fairly say there were future amounts on the
    settlement, but past amounts as at the trial.

[28]

To
    summarize, trial counsel must ensure that jury questions are structured to
    permit the trial judge to carry out the reductions required by s. 267.8 of the
Insurance
    Act
, where that is an issue in the
    action
. There should be a separate jury question for each past and
    future award in respect of each of the collateral benefits listed in s.267.8 of
    the
Insurance Act
that may arise in
    the case.
Anything less would impair the trial judges ability to
    discharge her responsibilities under the section. I note that the trial judge
    has the authority to turn back inadequate jury questions and must approve the
    final version.

The Principles Applied

[29]

The
    trial judge was faced with a mandatory statutory direction to deduct collateral
    benefits under s. 267.8 of the
Insurance Act
. She was reasonably
    assured, by comparing the quantum of benefits awarded to the appellant by the
    jury with the benefits that he had already received, that the appellant had
    been fully compensated for the applicable heads of damage, even though they
    were lumped up. The appellant had received about $40,000 more than the jury
    awarded.

[30]

It
    was reasonable for the trial judge to consider that the defendant had met the onus
    of proof for the reduction of the jury award for pecuniary losses under both s.
    267.8 of the
Insurance Act
and under
Bannon v. McNeely
. As the
    trial judge noted, it would have been preferable for the jury questions to have
    reflected the statutory scheme. However, in the context of this case, she
    committed no error in proceeding as she did.  She reasonably gave effect to one
    policy objective in the statutory scheme  full compensation  while respecting
    another policy objective  no overcompensation. The trial judge reasonably
    apprehended that if she did not make the reductions sought by the defence, the
    appellant would have been overcompensated.

[31]

I
    would dismiss the appeal with costs to the respondent in the amount of
    $7,500.00 all inclusive, as agreed.

Released:  April 6, 2016  GS

P.
    Lauwers J.A.

I
    agree G.R. Strathy C.J.O.

I
    agree M.L. Benotto J.A.

[1]
Note that general damages for pain and suffering are called non-pecuniary
    losses by s. 267.8(7) of the
Insurance
    Act
, and are not subject to such reductions.


COURT OF APPEAL FOR ONTARIO

CITATION: Business Development Bank of Canada v. Aventura II
    Properties Inc., 2016 ONCA 300

DATE: 20160422

DOCKET: M46240, M46279 M46303 (C61854)

van Rensburg J.A. (In Chambers)

BETWEEN

Business Development Bank of Canada

Applicant

and

Aventura
    II Properties Inc., Pavilion Sports Clubs Inc.,

Pavilion
    Sports Ice Inc., Pavilion Sports Food and Beverage Inc.

and Pavilion Aquatic Club
    Inc.

Respondents

Sean N. Zeitz, for Revital Druckmann and Jean-Jacques
    Myara

Kelli Preston, for the receiver Pollard & Associates
    Inc.

Catherine Francis, for DUCA Financial Services Credit
    Union Ltd.

Heard: April 5, 2016

ENDORSEMENT

A.

The Motions

[1]

There are three motions before the court, in respect of an appeal and
    proposed appeal of the order of Hainey J. dated March 4, 2016 made in the
    context of a court-appointed receivership (the Order). Pollard &
    Associates Inc. is the court-appointed receiver (the Receiver) of the debtor companies
    (the Debtors). A receivership order was granted by McEwen J. on September 8,
    2014 (the Receivership Order).

[2]

The Order at issue on these motions extended a Mareva injunction against
    Revital Druckmann (Revital), who is the spouse of Johny Druckmann, the principal
    of the Debtors. The Order also directed that the Receiver is entitled to
    immediate possession or repatriation of certain monies, which are the
    proceeds of an HST refund paid to one of the Debtors and diverted in contravention
    of the Receivership Order. The Order dismissed the claim by Jean-Jacques Myara (Myara)
    to an interest in the monies.

[3]

Revital seeks leave to appeal the Order under s. 193(e) of the
Bankruptcy
    and Insolvency Act,
R.S.C. 1985, c. B-3 (the
BIA
). Importantly,
    she asserts no claim of her own to the monies in question and does not oppose
    the repatriation of the funds. Rather, she challenges the procedure followed by
    the Receiver in obtaining, on an
ex parte
motion, the original interim
    Mareva injunction against her.

[4]

In his appeal, Myara claims that the monies are his and resists the
    repatriation of the funds. The Receiver and the secured creditor, DUCA
    Financial Services Credit Union Ltd. (DUCA) each move for security for costs
    of Myaras appeal.

[5]

For the reasons that follow, I dismiss Revitals motion and grant an
    order for security for costs against Myara in favour of the Receiver and DUCA.

B.

Brief History

[6]

The history of this matter is described in some detail in the reasons of
    the motion judge reported at 2016 ONSC 1545. For the purpose of these motions,
    the relevant facts are as follows.

[7]

The Debtors and their representatives failed to advise a court-appointed
    monitor, contrary to its appointment order dated October 24, 2013 and a
    subsequent order dated January 23, 2014, that on December 4, 2013, one of the
    Debtors (Pavilion Sports Clubs Inc. or PSCI) was issued an HST refund by the
    Canada Revenue Agency (the CRA) in the sum of $986,594.96 (the HST Refund).

[8]

In September 2014, pursuant to an order dated August 20, 2014, the
    monitor made inquiries of the CRA and learned that the HST Refund had been
    issued to the Debtors eight months earlier. The monitor was then appointed as
    receiver by order dated September 8, 2014 in a contested receivership
    application. After obtaining an order dated October 28, 2014 requiring the
    Toronto-Dominion Bank (TD) to release certain information, the receiver
    traced the HST Refund from a new TD account opened in the name of PSCI into a
    TD account in the name of S. Stern (Revitals sister), over which Revital had
    power of attorney. That account had been debited by a bank draft issued to S.
    Stern in the amount of $1,016,007.50 on August 26, 2014.

[9]

On April 17, 2015, Pollard & Associates Inc. was substituted as receiver
    of the Debtors. The Receiver learned from TD that the bank draft had been
    cashed on March 6, 2015 and deposited into an unknown account.

[10]

On December 4, 2015, Hainey J. granted the Receivers
ex parte
motion
    for an interim freeze and disclosure order against Revital (the Mareva
    Order). The Mareva Order provided that it would cease to have effect if
    Revital provided security by paying the sum of $1,016,007.50 into court. The Mareva
    Order was later extended on consent to January 29, 2016.

[11]

As a result of obtaining the Mareva Order, the Receiver traced the HST
    Refund through the S. Stern account (the draft had in fact been held and then
    re-deposited into that account on March 6, 2015) to, among other things, two non-registered
    mutual fund accounts with TD and Royal Bank of Canada (RBC), a personal
    account at RBC, and a 2015 Volkswagen Jetta, all in the name of Revital. Some
    funds remained in the S. Stern account.

[12]

The Receiver brought a motion against Revital to repatriate the funds,
    also returnable on January 29, 2016. On January 26, 2016, counsel for Myara
    contacted the Receiver to advise that his client claimed an interest in the
    funds in the S. Stern account, and was seeking an adjournment.

[13]

The motion to extend the Mareva Order and to repatriate the funds was
    heard on February 26, 2016. Myara attended at the motion. He sought intervener
    status, claiming to be a former lender to the Debtors. He claimed a
    beneficial interest in all the funds that were in the S. Stern account and in
    the two mutual fund accounts. He claimed to be an investor in the Debtors and
    referred to loan advancements totalling $1,241,290.01 made between March 2003
    and August 2005 to Aventura II Properties Inc.
[1]
Myara said that after he wanted his money back in 2012, Johny Druckmann had
    promised to pay him the HST Refund, and he had directed it to be deposited into
    the S. Stern account. He had directed Revital to issue a bank draft in the name
    of S. Stern in August 2014, and seven months later to make investments on his
    behalf in her name. He claimed that internal records showing that he had been
    paid back were inaccurate.

[14]

Of course, Revitals dealings with the HST Refund, that Myara claims
    occurred on his behalf, took place after the appointment of the monitor and in
    violation of court orders requiring the disclosure of the HST Refund. At no
    time prior to January 26, 2016 did anyone suggest that the HST Refund had been
    received but belonged to Myara. Revitals affidavit of December 28, 2015 stated
    that the mutual funds were her property.

[15]

On March 4, 2016, Hainey J. granted the Order. He found that the
    diversion of the HST Refund was in breach of the order dated January 23, 2014, which
    required the Debtors to advise the monitor immediately on the receipt of any
    refund from the CRA and prohibited the deposit or disbursement of any refund
    received. The Debtors breached the order and Revital was party to the breach.
    They engaged in deliberate and blatant acts of fraud. Hainey J. also found that
    Revital was in breach of the Receivership Order. He referred to the Receivers powers
    under that order and para. 4, which required anyone with notice of the order to
    advise the Receiver of any property of the Debtors in their possession or
    control and to deliver such property to the Receiver at the Receivers request.
    He rejected Revitals arguments that the Mareva Order was procedurally
    defective.

[16]

Hainey J. rejected Myaras claim, which he characterized as a fraudulent
    attempt to divert the HST Refund away from the Receiver. Even if Myara had a
    claim to the funds, it would be as an unsecured creditor of a bankrupt company,
    and his alleged interest would be subordinate to the Receivers interest in the
    HST funds. He extended the Mareva Order until further order of the court, and
    granted the Receivers motion to repatriate the funds.

C.

REVITALS Motion for Leave to Appeal

[17]

Revital seeks leave to appeal the Order under s. 193(e) of the
BIA
.
    Leave is discretionary and the court must take a flexible and contextual
    approach. In deciding whether to grant leave, the court must consider whether
    the proposed appeal (a) raises an issue that is of general importance to the
    practice in bankruptcy and insolvency matters or to the administration of
    justice as a whole; (b) is
prima facie
meritorious; and (c) would
    unduly hinder the progress of the bankruptcy or insolvency proceedings:
Business
    Development Bank of Canada v. Pine Tree Resorts Inc.
, 2013 ONCA 282, at
    para. 29.

[18]

The second part of the test requires the applicant to convince the court
    that there are legitimately arguable points raised so as to create a realistic
    possibility of success on the appeal:
Re Ravelston Corp.
(2005), 24
    C.B.R. (5th) 256 (Ont. C.A.), at paras. 28-29; see also
Osztrovics Estate
    v. Osztrovics Farms Ltd.
, 2015 ONCA 463, at para. 11. Although this is a
    relatively low bar, I am not persuaded that there is any arguable merit to
    Revitals proposed appeal.

[19]

First, Revital does not claim any interest in the HST Refund, or in the funds
    in the S. Stern account, or, even now, the property and investments she
    acquired using such funds. As such, she does not and cannot appeal the
    repatriation part of the Order. Nor does Revital challenge the substantive
    grounds on which the Mareva Order was made and extended. Rather, as her counsel
    acknowledges, Revitals concerns are strictly procedural.

[20]

In her proposed appeal to this court Revital raises the same procedural
    issues she argued before the motion judge. She asserts that the motion judge
    erred in continuing the Mareva injunction against her because there were
    procedural defects in the
ex parte
Mareva Order dated December 4,
    2015.

[21]

Revital says that Hainey J. erred in granting the Order because (a) the
    Receiver had not made full and frank disclosure on the original
ex parte
motion;
    (b) he did not require an undertaking for damages from the moving party or
    grant an order dispensing with that requirement; and (c) the Order could not be
    made against her as a third party where there was no pending or intended proceeding
    against her.

[22]

I do not see any merit to any of Revitals arguments.

[23]

There is no question that the Receiver, in moving for the
ex parte
order,
    was required to make full and frank disclosure of material facts, and to inform
    the court of any material facts or points of law that favoured the other side:
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194, r. 39.01(6);
Chitel v.
    Rothbart
(1982), 39 O.R. (2d) 513 (C.A.);
United States of America v.
    Friedland
, [1996] O.J. No. 4399 (Gen. Div.). Revitals complaint is not
    with respect to the
facts
that were put to the court; rather, she says
    that the Receiver ought to have delivered a factum and provided the court with legal
    authorities on Mareva injunctions, in particular referring to the need for an
    undertaking as to damages and a pending legal action against the target of the
    order.

[24]

First, the obligation on a moving party to file a factum in an
    injunction motion applies in contested, but not
ex parte
,

motions:
    see r. 40.04(1). Second, the motion judges granting of the Mareva Order was
    based on the application of settled principles and entirely justified by the
    evidence placed before him. And, as I will explain, the points that Revital raises
    were not in fact impediments to the relief granted by the court in this case.

[25]

As for the failure to require the Receiver to provide an undertaking as
    to damages, the motion judge rejected this argument, on the basis that the
    order was made in a court-appointed receivership. The purpose of such an
    undertaking is to protect the defendant from the risk of granting a remedy
    before the substantive rights of the parties have been determined: Robert J. Sharpe,
Injunctions and Specific Performance
, loose-leaf (2015-Rel. 24), 4th
    ed. (Toronto: Canada Law Book, 2012), at para. 2.470. The Receiver is not a
    self-interested party. A receiver is an officer of the court with a fiduciary
    duty to comply with the powers granted in the receivership order and to act
    honestly and in the best interests of all parties, including the debtor:
Toronto
    Dominion Bank v. Usarco Ltd.
(2001), 196 D.L.R. (4th) 448 (Ont. C.A.), at
    para. 30, leave to appeal refused, [2001] S.C.C.A. No. 217. The Receiver has a
    duty to recover the property of the Debtors, including the HST Refund, and the
    order sought was in aid of powers granted to the Receiver by court order. The motion
    judge, under r. 40.03, was entitled to grant the Mareva Order without requiring
    an undertaking as to damages, and he did so for good reason in this case.

[26]

Finally, Revital says that the Mareva Order should not have been issued
    against her because there was no existing or proposed action in which she was a
    defendant. She relies on cases stating that such orders cannot be made in the
    absence of a law suit or litigation process in which she could assert her
    defences: see e.g.
Standal Estate v. Swecan International Ltd
. (1989),
    26 C.P.R. (3d) 421 (Fed. C.A.). Without commencing proceedings against her,
    Revital says it was impossible for the Receiver to meet the strong
prima
    facie
case requirement for a Mareva order.

[27]

Again, this argument has little merit, and I reject entirely the
    suggestion that the Receiver had an obligation to sue Revital in a separate
    action for recovery of the funds before moving for a Mareva injunction.

[28]

In the typical Mareva case, the moving party seeks security for a future
    judgment, where neither liability nor the amount of the judgment has been
    determined. Here, however, the order granted was contemplated by and expanded
    upon powers granted to the Receiver under the Receivership Order. Those powers authorize
    the Receiver to take possession and control of the Debtors property and proceeds
    from such property, receive and collect all monies owing to the Debtors, and
    apply to the court for assistance in carrying out its duties: see especially
    paras. 2, 3(a), 3(f), 12 and 28 of the Receivership Order. The Receiver had the
    duty and right to collect the HST Refund, and Revital was in breach of the Receivership
    Order when she placed it beyond the Receivers reach and failed to disclose its
    existence. Indeed, the misappropriation of the HST Refund precipitated the
    appointment of the Receiver and part of the Receivers mandate was to find and
    recover the HST Refund.

[29]

The Mareva Order was granted on the basis of overwhelming evidence. The
    Receiver not only had a strong
prima facie
case that Revital had
    misappropriated the HST Refund proceeds, but had directly traced the monies into
    the S. Stern account, the mutual fund accounts, Revitals personal RBC account,
    and the automobile. Revital admitted she had used or disposed of the remaining
    funds. Any requirement for a pending action is met by the fact that the motion
    was brought in the context of the receivership proceedings. This is the
    framework in which the Mareva Order was made, and contrary to Revitals
    assertions, this was the forum in which she could assert any available
    defences.

[30]

While this is sufficient to dispose of Revitals motion for leave to
    appeal, I also note that there is nothing in her proposed appeal that raises
    any issue of general importance to bankruptcy and insolvency practice or the administration
    of justice. Contrary to Revitals submission, the motion judge did not apply a
    new test for the order he granted, exempting receivers from the usual
    requirements for a Mareva injunction. The motion judge applied settled legal
    principles to the facts of the case that demanded the relief he granted.

D.

Security for Costs MotionS

[31]

The Receiver and DUCA are respondents to Myaras appeal and both move
    against him for security for costs of his appeal. Their motions are under r.
    61.06(1)(a). The moving party must establish that there is good reason to
    believe that the appeal is frivolous and vexatious and that the appellant has
    insufficient assets in Ontario to pay the costs of the appeal.

[32]

The second part of the test is not in dispute. Myara lives in Florida
    and apparently owns a casino in Peru. There is no evidence that he has assets
    in Ontario.

[33]

The first part of the test involves a consideration of [t]he apparent
    merits of the appeal, the presence or absence of an oblique motive for the
    launching of the appeal, and the appellants conduct in the prosecution of the
    appeal as well as other factors that may be specific to the case:
Schmidt
    v. Toronto Dominion Bank
(1995), 24 O.R. (3d) 1 (C.A.), at para. 18.

[34]

The moving parties rely on the fact that the motion judge found Myaras
    version of events had no air of reality and did not accord with common sense,
    and that his story was simply another fraudulent attempt to divert the HST Refund
    away from the Receiver. They say there is no merit to his appeal and that its
    purpose is to simply further delay the Receivers recovery of the Debtors
    property.
[2]

[35]

Myara contends that his appeal has merit. He says that, because he was
    not cross-examined on his affidavit, his evidence about his claim to the HST
    Refund was uncontroverted and ought to have been believed by the motion judge. He
    argues that DUCA lacks standing to bring the motion for security for costs.
    Finally, he says that an order for security for costs should not be made
    against him because he was forced into the jurisdiction: see
Diversitel
    Communications Inc. v. Glacier Bay Inc.
(2004), 181 O.A.C. 6, at para. 8
    (C.A.).

[36]

I am satisfied that each of the Receiver and DUCA is entitled to
    security for costs of Myaras appeal. The appeal appears to have little chance
    of success. Myara seeks to overturn the motion judges factual findings, which
    were made on a compelling record with little, if anything, to support Myaras
    claim and much to contradict it.

[37]

The fact that DUCA is a respondent to Myaras appeal and that Myara
    seeks costs of the appeal and of his motion in the court below from DUCA, is
    sufficient to satisfy the standing requirement for its motion for security for
    costs.

[38]

Myaras reliance on the
Diversitel
case is misguided. In that
    case, this court considered a motion for security for costs of an appeal under
    r. 61.06(1)(b), which allows this court to make an order for security for costs
    where it appears that an order for security for costs could be made against
    the appellant under rule 56.01. Interpreting the combined effect of those
    provisions, this court in
Diversitel
held that r. 61.06(1)(b) is
    confined to making an order for security for costs against an appellant who was
    the plaintiff or applicant in the initial proceeding. A respondent on appeal
    may not rely on rule 61.06(1)(b) to obtain an order for security for costs
    against an appellant who was the defendant or respondent in the initial
    proceeding. Armstrong J.A. explained that [t]he policy rationale is not to
    impose security for costs upon foreign or impecunious defendants who are forced
    into court by others. See also
Donaldson International Livestock Ltd. v.
    Znamensky Selekcionno Gibridny Center LLC
, 2010 ONCA 137.

[39]

Here, the motions are brought under r. 61.06(1)(a), which permits
    security for costs to be ordered against an appellant where there is good
    reason to believe that the appeal is frivolous and vexatious and that the
    appellant has insufficient assets in Ontario to pay the costs of the appeal. Application
    of this subrule is not restricted to appeals by appellants who were plaintiffs
    or applicants in the initial proceedings. In any event, Myara was not forced
    into court by anyone. He brought himself into the jurisdiction to assert a claim
    to the HST Refund proceeds, by attempting to intervene in the motion below.

[40]

I fix the amount to be paid by Myara as security for the costs of his
    appeal in the sum of $15,000 for each of the Receiver and DUCA. This is a
    reasonable estimate of the party and party costs each of these respondents
    might expect to recover if successful in responding to Myaras appeal.

E.

DISPOSITION

[41]

For the foregoing reasons, Revitals motion for leave to appeal the
    Order is dismissed and the Receivers and DUCAs motions for security for costs
    are granted. I order Myara to pay into court as security for the costs of his
    appeal the sum of $30,000 on or before May 2, 2015, failing which a judge of
    this court may dismiss the appeal on motion. No assets covered by the
    Receivership Order may be disposed of or pledged in order to post security for
    costs.

[42]

The Receiver and DUCA shall have their costs of responding to Revitals
    motion fixed in the sum of $10,000 each, inclusive of HST and disbursements. The
    Receiver and DUCA shall have their costs of their motions for security for
    costs against Myara fixed in the sum of $5,000 each, inclusive of HST and
    disbursements. These costs amounts are inclusive of the costs of the March 27,
    2016 attendances before Roberts J.A.

K. van Rensburg J.A.

[1]
Myara explained that the loans were recorded on the ledger of Aventura
    Properties Inc., which is not one of the Debtors, but claimed that this
    corporation and Aventura II Properties Inc. are in fact the same corporate
    entity.

[2]
They also contend that Myara has no standing to appeal the repatriation order.
    That issue was directed by Roberts J.A. on consent to be heard by the panel
    hearing the appeal.


COURT OF APPEAL FOR ONTARIO

CITATION:  Candito v. Nmezi, 2016 ONCA 293

DATE: 20160422

DOCKET: C61046

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

BETWEEN

Marilena Candito

Plaintiff

and

Chinedu Nmezi, Paulette Rhoden and
Economical
    Insurance Group

Defendants (
Appellant
)

and

State Farm Mutual
    Automobile Insurance Company

Third Party (Respondent)

Karim N. Hirani and James B. Tausendfreund, for the
    appellant

Philip Pollack, for the respondent

Heard and released orally:  April 19, 2016

On appeal from the order of Justice Kelly P. Wright of
    the Superior Court of Justice, dated August 20, 2015.

ENDORSEMENT

[1]

This appeal arises out of a coverage dispute between insurers.

[2]

At issue was whether the defendant in an action that arose out of a
    motor vehicle accident had cancelled her automobile insurance policy with the
    respondent, State Farm Mutual Insurance Company, before the accident occurred.

[3]

Section 11(2) of
Statutory ConditionsAutomobile Insurance
, O.
    Reg. 777/93, a regulation under the
Insurance Act
, R.S.O. 1990, c. I-8,
    provides as follows:

This contract may be terminated by the insured at any time on
    request.

[4]

The motion judge concluded that the defendant had terminated her automobile
    policy with the respondent. While not convinced that s. 22(2) of the
Insurance
    Act
imposed an elevated onus on the respondent to prove that the
    cancellation was clear and unequivocal, the motion judge found that if there
    were such an elevated onus, the respondent had satisfied it. Accordingly, the
    plaintiff was entitled to uninsured motorist coverage under the plaintiffs
    policy with the appellant, Economical Insurance Group. The motion judge granted
    summary judgment in favour of the respondent and dismissed the appellants
    cross-motion for summary judgment.

[5]

On appeal, the appellant argues that: (1) the motion judge erred in
    concluding that there was no onus on the respondent to prove that the
    cancellation was clear and unequivocal; (2) the motion judge committed a
    legal error by relying on what it says is inadmissible hearsay evidence in the
    respondents evidence; (3) the motion judge erred by failing to draw an adverse
    inference against the respondent because it did not adduce affidavit evidence
    of the defendant confirming that she had cancelled the policy; and (4) the
    motion judges conclusion that she was fully satisfied that the policy was
    cancelled and not in effect on the date of the accident amounts to a palpable
    and overriding error.

[6]

In the circumstances, it is not necessary for us to address whether
    there is an elevated onus on an automobile insurer to prove that the insured
    has terminated the policy. As we have indicated, the motion judge found that even
    if there were an elevated onus, the respondent had met that onus. There is no
    basis for this court to interfere with that determination.

[7]

In making that determination, the motion judge relied on the evidence of
    an underwriter with the respondent, provided in substantial part in reliance on
    records of the respondent and its insurance agent. Those records show that
    before the accident occurred, the defendant requested that her policy be
    cancelled. The respondent sent the defendant a computer manually generated
    Acknowledgment of Cancellation Request, which indicated the effective date of
    cancellation, and a credit was given, reflecting the cancellation of the
    policy.

[8]

The appellant did not argue before the motion judge that the
    respondents evidence amounted to inadmissible hearsay. It is not appropriate
    for it to make this argument for the first time on appeal. In any event, to the
    extent that the respondents evidence amounted to hearsay, it was admissible
    via the business records exception.

[9]

The defendant at no time denied that she cancelled her insurance before
    the accident and the appellant adduced no evidence to suggest that the
    defendant was in fact insured by the respondent on the date of the accident.  On
    the record before her, the motion judge did not err in failing to draw an adverse
    inference against the respondent because it did not obtain an affidavit from
    the defendant. The motion judges conclusion that she was fully satisfied that
    the policy had been terminated and was not in effect on date of the accident is
    amply supported by the record.

[10]

This appeal is accordingly dismissed. The
    respondent shall be entitled to its costs of the appeal, fixed in the amount of
    $7,500, including disbursements and HST.

Alexandra
    Hoy A.C.J.O.

R.A.
    Blair J.A.

L.B.
    Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Carpenter v. Carpenter, 2016 ONCA 313

DATE: 20160427

DOCKET: M44691

van Rensburg J.A. (In Chambers)

BETWEEN

Merle Carpenter

Applicant (Moving Party)

and

Jamie Lee Carpenter

Respondent (Respondent)

Gordon S. Campbell, for the moving party

Jamie Lee Carpenter, acting in person

Kenneth Younie,
duty counsel
for the respondent

Heard: April 6, 2016

ENDORSEMENT

A.

Introduction

[1]

This is a motion for an extension of time to appeal two orders made in a
    matrimonial proceeding. The first is dated November 13, 2013, and provided for
    the striking of the moving partys pleadings in the event that he did not pay
    $2,000 in costs within ten days. The second is dated April 17, 2014 and is a
    final order in an uncontested trial.

B.

Facts

[2]

The parties were involved in high-conflict matrimonial proceedings.
    There were interim orders, including an order of Minnema J. dated July 9, 2013,
    requiring Mr. Carpenter to pay Ms. Carpenter an amount for retroactive child
    and spousal support and $7,000 in costs.

[3]

The matter was scheduled for trial. On November 13, 2013 the parties
    appeared on a motion and counter-motion. Mr. Carpenter brought a motion for
    disclosure of certain financial documents. Ms. Carpenter brought a counter-motion
    asking that the trial date be adjourned, and for an order striking Mr. Carpenters
    pleadings if he failed to pay the amounts required by the Minnema J. order by
    December 15, 2013.

[4]

Although Mr. Carpenter was self-represented, he was assisted at the
    hearing of the motions by his former counsel, Mr. Coderre. Mr. Coderre
    confirmed that neither party was ready for trial and that an adjournment of the
    trial until the May 2014 court sittings was in order. Ms. Carpenter was
    represented by counsel.

[5]

After the motion to strike Mr. Carpenters pleadings had been addressed
    at some length, Mr. Coderre requested an adjournment of the motion so that
    Mr. Carpenter, who had not delivered any responding materials since being
    served ten days earlier, could respond with evidence about his efforts to pay
    the arrears. Ultimately, Pelletier J. adjourned both motions to be heard no
    later than January 17, 2014, and ordered Mr. Carpenter to pay $2,000 in costs
    within ten days, failing which his pleadings would be struck and the matter
    could proceed by way of affidavit for uncontested trial. If costs were paid and
    the motions were to proceed, Mr. Carpenter was to serve and file responding
    materials at least ten days before the motion return date.

[6]

Mr. Carpenter did not pay the costs ordered by Pelletier J. As a result,
    his pleadings were struck without further notice to him. On December 10, 2013,
    he made an assignment in bankruptcy.

[7]

In March 2014 the trial proceeded as an uncontested trial before
    Labrosse J., resulting in a final order dated April 17, 2014 (the Final
    Order).

[8]

The Final Order, among other things, provided for:

·

shared
    custody of the two children of the marriage (there is also a foster child but
    she was not addressed in the order);

·

payment
    by Mr. Carpenter to Ms. Carpenter of $143,500 representing 50% of Mr.
    Carpenters pension credits accumulated during the marriage, to be effected by
    way of a
Pension Benefits Division Act
, S.C. 1992, c. 46, Sch. II
rollover. The order required
    the plan and administrator to transfer $143,500 into a qualified retirement
    savings vehicle chosen by Ms. Carpenter, and stated the amount is based
    on [Mr. Carpenters] unsworn NFP calculation, being the best available evidence;

·

child
    support of $1,659 per month commencing April 1, 2014, based on Ms. Carpenters
    income being $20,000 and Mr. Carpenters income being $145,936, being his three
    year average for 2010 to 2012, and removing severance pay he received in 2012
    from his 2012 income;

·

spousal
    support fixed at $2,640 per month from April 1, 2014;

·

arrears
    of child support and spousal support due under the order of Minnema J. fixed at
    $25,357 and required to be paid at the rate of $500 per month commencing April
    1, 2014 until paid in full;

·

retroactive
    spousal support fixed in the amount of $36,923 to be paid by way of a transfer
    from Mr. Carpenters pension and effected by way of a
Pension Benefits
    Division Act
rollover;

·

payment
    of the outstanding costs orders of Minnema J. and Pelletier J.; and

·

payment
    of Ms. Carpenters costs of the application (with the portion of costs related
    to the issues of child and spousal support enforced by the Family
    Responsibility Office (FRO) as support forthwith).

C.

The Test for an Extension of Time

[9]

Whether to extend time to appeal is in the discretion of the court. The
    relevant factors are (a) whether the appellant formed an intention to appeal
    within the relevant period; (b) the length of the delay and the explanation for
    the delay; (c) any prejudice to the respondent; (d) the merits of the appeal;
    and (e) whether the justice of the case requires the extension. The governing
    principle is simply whether the justice of the case requires that an
    extension be given:
Rizzi v. Marvos
, 2007 ONCA 350, at paras. 16 and
    17.

D.

Positions of the Parties

[10]

Mr. Carpenter contends that the fact that he was self-represented meant
    that he did not understand the implications of having his pleadings struck. He
    submits that he did not learn of the Final Order until May 29, 2014, and thereafter
    brought the motion as soon as he was able to retain counsel. He has not moved
    forward with the motion in the past year because he was trying to settle with
    the respondent. Mr. Carpenter asserts that important issues were determined
    without his involvement, that there were numerous factual and legal errors,
    and he is suffering from the financial burden of the enforcement by FRO of the Final
    Order.

[11]

Ms. Carpenter resists the motion. She relies on the chronology of what
    occurred leading to the order to strike Mr. Carpenters pleadings, which
    included significant defaults in payment of child and spousal support. She
    notes that Mr. Carpenter has complied with few of the provisions of the Final
    Order, including the return of her items of sentimental value, and the transfer
    of the required part of his pension. She says that, although he was not at the
    uncontested trial, Mr. Carpenters evidence was considered by the court. She
    would be prejudiced if the appeal were to proceed, as she paid for legal representation
    in the proceedings below (and still owes her counsel money), but cannot afford a
    lawyer for the appeal and any future proceedings.

E.

ANALYSIS

(1)

Intention to appeal and explanation for delay

[12]

Mr. Carpenter contends that he always intended to appeal the orders and
    that he has a reasonable explanation for his delay. To a significant extent he
    relies on the fact that he has been self-represented.

[13]

I do not accept Mr. Carpenters claim that he failed to understand the
    implications of Pelletier J.s November 13, 2013 order because he was
    self-represented. He was in court that day with a lawyer. He had been served
    ten days earlier with a motion to strike his pleadings but had filed no
    responding materials. His lawyer only requested an adjournment after
    significant argument had been addressed to the very issue of whether his
    pleadings should be struck because of the outstanding arrears. The transcript
    reveals that almost the entire hearing was devoted to whether Mr. Carpenters pleadings
    should be struck, and the necessary consequence that the trial would proceed as
    an uncontested trial was fully discussed in his presence.

[14]

When the sum of $2,000 was proposed for Ms. Carpenters costs
    thrown away as a condition of the adjournment of the motion, his counsel
    demurred, but Mr. Carpenter objected to the amount. Although he contends he
    could not pay any amount for costs because he was about to become bankrupt, nothing
    was said at the hearing about his impending bankruptcy. In these circumstances,
    the uncontested trial that followed was not, as Mr. Carpenter states, a
    tactic adopted by Ms. Carpenters lawyer. He knew that if he failed to pay
    $2,000 in costs within ten days the trial would proceed on an uncontested
    basis.

[15]

With respect to the Final Order, I accept Mr. Carpenters evidence
    that he did not learn of it until he received a copy from the respondents
    counsel. That does not mean that he had no knowledge that such an order would
    be made, but simply that he did not know that the uncontested trial had taken
    place, and of its results, until May 29, 2014. Mr. Carpenter contends that
    he took steps promptly to try to retain counsel to launch an appeal. He
    contacted various lawyers, until in September 2014 he retained his present
    counsel, and after several months was able to initiate his motion to extend
    time in February 2015.

[16]

The fact that Mr. Carpenter was self-represented does not excuse his
    failure to comply with the necessary time limit or, once he was aware of the Final
    Order, to move promptly for an extension of time. Any participant in
    litigation, including a self-represented party, has a responsibility to
    familiarize himself or herself with the procedures relevant to the case:
McDowell
    v. Cavan-Millbrook - North Monaghan (Municipality)
, 2016 ONCA 193, at
    paras. 20 and 21. As such, the fact that Mr. Carpenter took several months to
    seek out and then retain counsel to bring this motion is an answer but not a
    full and satisfactory explanation for his delay.

[17]

The final period of delay is that of more than a year between when Mr. Carpenter
    first brought his motion before this court and when it was heard. On February
    11, 2015, the motion was adjourned so that the respondent could have the
    assistance of counsel. Mr. Carpenter says that thereafter he was trying to
    settle. Although the respondent says she never agreed to a suspension of time
    during this period, I accept that there is a reasonable explanation for Mr. Carpenters
    delay in bringing the motion back before the court.

[18]

In all the circumstances, however, I do not find that Mr. Carpenter
    moved promptly before this court to seek an extension of time to appeal the two
    orders in question. That said, delay is only one factor. I turn now to consider
    other factors relevant to the justice of the case.

(2)

The justice of the case

[19]

With respect to the merits of his proposed appeals, Mr. Carpenter says
    that striking pleadings is a remedy of last resort that ought not to have been
    imposed for his failure to pay a costs order. I accept that an order to strike
    pleadings is an exceptional order that should be made only as a last resort,
    and that it is preferable that the court hear from both sides when determining
    matrimonial proceedings. See
Chiaramonte v. Chiaramonte
, 2013 ONCA 641,
    at paras. 31-32.

[20]

That said, the
Family Law Rules
, O. Reg. 114/99 provide for
    such a sanction, which is frequently exercised where there has been a repeated
    failure to comply with court orders, especially for disclosure. And a motion
    judges decision to strike pleadings and deny participation at trial is entitled
    to deference if exercised on proper principles:
Chiaramonte
, at para.
    33. It is impossible to tell from the record before this court whether in all
    the circumstances it would have been appropriate for the motion judge to strike
    Mr. Carpenters pleadings for failure to comply with Minnema J.s order, or
    whether that automatic sanction for Mr. Carpenters failure to pay Ms.
    Carpenters costs thrown away was an appropriate exercise of the motion judges
    discretion.

[21]

As such, I am unable to say that Mr. Carpenters proposed appeal is
    entirely devoid of merit. If he were successful in setting aside the order
    striking pleadings, then it would follow that there was no legal basis for an
    uncontested trial.

[22]

There are, however, other important considerations in this case.
    Permitting an appeal at this stage would prejudice the respondent. She took the
    necessary steps to bring the litigation to a close, and she has no financial
    resources to retain counsel to respond to an appeal. More importantly, I am not
    satisfied that the Final Order has unfairly benefited Ms. Carpenter or resulted
    in any real injustice to Mr. Carpenter. While he argues a denial of procedural
    fairness in the uncontested trial process, there is nothing to suggest that the
    substantive results of the trial would have been any different had Mr.
    Carpenter participated.

[23]

Mr. Carpenter provides no evidence at all to support his contention that
    the trial judge made numerous factual and legal errors or that the trial
    judge erroneously calculated arrears and support payments or made a
    seriously flawed pension division calculation.

[24]

A review of the transcript discloses that the trial judge carefully
    considered all relevant evidence, including evidence favourable to Mr.
    Carpenter. Extensive reference was made to Mr. Carpenters available financial
    disclosure, including his income tax returns and an estimate of the revised
    valuation of his pension taken from his unsworn net family property statement.
    The trial judge imputed income to Ms. Carpenter, who was working inconsistently
    on a part-time basis. He took into consideration where the children were
    living, and the parties agreement respecting parenting. He considered the
    implications of Mr. Carpenters bankruptcy, including the trustees
    communication to Ms. Carpenters counsel that the pension was an exempt
    asset (which Mr. Carpenter does not dispute), and the fact that Mr.
    Carpenters obligations for the parties debts would be discharged. The trial
    judge awarded retroactive spousal support at the midpoint of the mid to low
    range of the Spousal Support Advisory Guidelines (SSAGs), in light of Mr.
    Carpenters significant debts prior to his bankruptcy. Going forward, he
    awarded spousal support at the mid range of the SSAGs, calculated using Ms.
    Carpenters imputed income and an average of Mr. Carpenters income over three
    years (excluding a severance payment), and based child support on the parties
    shared custody of the children.

[25]

Mr. Carpenters affidavits sworn in January 2015 and January 2016
    suggest that the child and spousal support awards are too high in view of his
    recent earnings, and his obligations in respect of the children. He also contends
    that the order made would not permit him the time and ability to travel with
    the children to the Northwest Territories, to be exposed to their aboriginal
    heritage. But changes in Mr. Carpenters income and the residence of the
    children, as well as any travel and holiday considerations for the children, can
    be addressed through a motion to change the Final Order.

[26]

Finally, I note that Mr. Carpenters affidavits emphasize that it was
    his preference to settle matters with Ms. Carpenter, rather than to proceed
    with litigation. That was what he told Pelletier J. in November 2013, and even
    in the past year he did not proceed with his motion for an extension of time
    while he tried to settle. Whether Mr. Carpenter would have preferred a
    settlement is not the issue. Ms. Carpenter was entitled to proceed to court,
    and once court orders were made they were binding on Mr. Carpenter, who was not
    entitled to disregard them in favour of further efforts at negotiation.

F.

Disposition

[27]

In all the circumstances, I have concluded that the justice of the case
    does not require this court to grant an extension of time for the moving party
    to appeal the subject orders. His motion is therefore dismissed, without costs.

K. van Rensburg J.A.


WARNING

THIS IS AN APPEAL UNDER THE

CHILD AND FAMILY SERVICES ACT

AND IS SUBJECT TO S. 45 OF THE ACT WHICH
    PROVIDES:

45(7)  The court may make an order,

(a) excluding a particular media representative
    from all or part of a hearing;

(b) excluding all media representatives from all
    or a part of a hearing; or

(c) prohibiting the publication of a report of the
    hearing or a specified part of the hearing,

where the court is of the opinion that the presence
    of the media representative or representatives or the publication of the
    report, as the case may be, would cause emotional harm to a child who is a
    witness at or a participant in the hearing or is the subject of the proceeding.

45(8)
No person shall publish or
    make public information that has the effect of identifying a child who is a
    witness at or a participant in a hearing or the subject of a proceeding, or the
    childs parent or foster parent or a member of the childs family.

45(9)
The court may make an order
    prohibiting the publication of information that has the effect of identifying a
    person charged with an offence under this Part.

COURT OF APPEAL FOR ONTARIO

CITATION: Children's Aid Society of Toronto v. A.F., 2016
    ONCA 267

DATE: 20160411

DOCKET: C61577

Sharpe, Juriansz and Roberts JJ.A.

IN THE MATTER OF the
Child and Family
    Services Act
, R.S.O. 1990, c. C.11, as amended and The Evidence Act,
    R.S.O. 199, c. E-23, as amended

AND
    IN THE MATTER OF AN APPEAL FROM THE ONTARIO COURT OF JUSTICE Under the said
Child and Family Services Act
as related to:

S.F.

J.F.

J.F.

BETWEEN

Childrens Aid Society of Toronto

Applicant
    (Applicant in the Ontario Court of Justice)

Respondent

and

A.F. (Mother)

Respondent (in
    the Ontario Court of Justice)

Appellant

Ghina Al Sewaidi, for the appellant

Justine Sherman, for the respondent

Lauren Israel, for the Office of the Childrens Lawyer

Heard and released orally: April 8, 2016

On appeal from the order of Justice Craig Perkins of the Superior
    Court of Justice, dated December 15, 2015.

ENDORSEMENT

[1]

This is an appeal from the dismissal of the appellants appeal from a Crown
    wardship order in relation to three of the appellants children. The
    appellants position is that an order should be made placing her children with
    her mother. In lengthy and detailed reasons, the trial judge rejected that
    position and provided fully considered reasons explaining why she concluded
    that a placement with the maternal grandmother would be inappropriate. The
    appeal judge found no error in the trial judges reasons and upheld her
    decision.

[2]

In her factum for this appeal, the appellant argues that she was
    inadequately represented by her trial counsel. We were advised at the opening
    of the appeal that trial counsel had not been served with notice of the hearing
    of this appeal. As this is a second-level appeal involving child protection, it
    is in the interests of justice that it proceed and we therefore declined to
    adjourn the appeal so that the appellants trial counsel could be served. We
    have reviewed the appellants written argument on the inadequacy of assistance
    point and the affidavit filed by the appellants trial counsel in answer to
    this allegation. We agree with the appeal judge that there is no merit to this
    ground of appeal.

[3]

The appellant argues that the trial judge erred in relation to her use
    of past parenting evidence regarding the childrens maternal grandmother. The
    appellant further submits that the respondent Childrens Aid Society failed in
    its duty to investigate the possibility of placing the children with the
    maternal grandmother.

[4]

We are unable to accept these submissions. There was considerable
    evidence before the trial judge as to the lengthy and concerning history of the
    maternal grandmother with child protection agencies. Indeed, at the time of
    trial, she was involved in ongoing child protection proceedings with another Childrens
    Aid Society in relation to her own children. The maternal grandmother had shown
    limited interest in the children, and she had been uncooperative with the
    respondent society leading up to the trial.

[5]

In her very thorough reasons, the trial judge expressed serious concerns
    about the suitability of the maternal grandmother as a caregiver for these
    children given her own child protection history, her limited relationship with
    the children and the poor judgment she demonstrated in relation to the children
    in her care.

[6]

We do not agree with the submission that the respondent society failed in
    its statutory duty to investigate the possibility of a placement with the
    maternal grandmother. Moreover, we are satisfied on the record before us that
    any investigation would not have altered the outcome in this proceeding.

[7]

In our view, the trial judge did not make inappropriate use of the
    maternal grandmothers prior parenting history. While the grandmothers own
    child protection file was closed following the trial, that fact alone did not
    alter the troubling evidence demonstrating the grandmothers lack of
    suitability for a custodial placement.

[8]

Accordingly the appeal is dismissed.

Robert J. Sharpe
    J.A.

R.G. Juriansz
    J.A.

L.B. Roberts
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Cushnaghan v.
    Kwan, 2016 ONCA 312

DATE: 20160428

DOCKET: C60940

Doherty, MacPherson and Miller JJ.A.

BETWEEN

Robert Cushnaghan

Plaintiff (Respondent)

and

Ying Kwan

Defendant
    (Appellant)

Andrea M. Habas, for the appellant

Craig Losell, for the respondent

Heard and released orally:  April 25, 2016

On appeal from the judgment entered by Justice S.E.
    Healey of the Superior Court of Justice, dated July 24, 2015.

ENDORSEMENT

[1]

The respondent sold his marina to the appellant.  She did not make the
    required payments and the respondent served notice of sale under the mortgage.
    The parties entered into Minutes of Settlement.  The appellant failed to make a
    payment required under the Minutes of Settlement.  The respondent sued and
    moved for summary judgment on the Minutes of Settlement.

[2]

The appellant defended, in part, by claiming a set-off arising out of
    damages caused to parts of the marina by a severe snow storm.  The damage
    occurred after the marina had been sold to the appellant, but while the
    respondent, at the appellants request, was still in possession of the marina.
    The appellant maintained that the respondent was under a legal obligation to maintain
    the property and insure the property against damage caused by the snow fall.
    She argued that the damages caused to her property should be set-off against
    the amount owing to the respondent under the terms of the Minutes of
    Settlement.

[3]

The motion judge granted summary judgment to the respondent.  We agree.

[4]

The motion judge in her reasons provided several reasons for allowing
    the motion and granting summary judgment.  We focus on one.

[5]

The motion judge was satisfied on the evidence that there was no duty
    owed by the respondent to maintain the property or to insure the property.  The
    appellant argues that the duty arose out of the respondents status as a
    mortgagee in possession.  This issue was not addressed in the court below,
    presumably because it was not pleaded.  We would not give effect to the
    argument in this court.

[6]

Nothing in the Minutes of Settlement can be read as imposing any duty on
    the respondent to maintain the property or to insure the property beyond the
    insurance that was on the property at the time of the Minutes.  Consequently,
    the motion judge properly granted summary judgment to the respondent in the
    entire amount of the claim.

[7]

The appeal is dismissed.

[8]

Costs are awarded to the respondent in the amount of $11,600, inclusive of
    disbursements and relevant taxes.

Doherty J.A.

J.C. MacPherson J.A.

Bradley W. Miller
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Delgado-Cruz (Re), 2016 ONCA 261

DATE: 20160408

DOCKET: C60827

MacPherson, MacFarland and LaForme JJ.A.

IN THE MATTER OF:  MAURICIO ANTONIO DELGADO-CRUZ

AN APPEAL UNDER PART XX.1 OF THE
CODE

Dean Embry, for the appellant

Eric Siebenmorgen, for the Crown

Kathryn Hunt, for the Person in Charge of the Centre for
    Addiction and Mental Health

Heard: April 6, 2016

On appeal against the disposition of the Ontario Review
    Board dated July 20, 2015.

ENDORSEMENT

[1]

The appellant, Mauricio Antonio Delgado-Cruz, appeals from the decision
    of the Ontario Review Board dated 20 July 2015 ordering that he remain under a
    conditional discharge. The conditions in the discharge were substantially
    reduced from those in the 2014 Order. The conditions in the 2015 Order are:

(a)

Reside at 100 Lower Ossington, Toronto;

(b)

Report to the person in charge of the Centre for Addiction and Mental
    Health, Toronto or his or her designate, not less than once every two weeks;

(c)

Refrain from having in his possession any firearm, ammunition or other
    offensive weapon, or being in the company of any person possessing a firearm
    other than a peace officer;

(d)

Upon notice, attend before the Ontario Review Board as required; and

(e)

Keep the peace and be of good behaviour.

[2]

The appellant seeks an absolute discharge and submits that in failing to
    grant it to him, the Board made an unreasonable decision not supported by the
    evidence. The appellant advances two arguments in support of this position.

[3]

First, the appellant asserts that there was no positive evidence on
    which the Board could have made a finding that he continues to pose a
    significant risk to the public.

[4]

We do not accept this submission. The unanimous decision of the Board
    was principally based on the opinion of the appellants treating physician, Dr.
    V. Duff, who was of the opinion that the appellant continued to pose a
    significant risk. Dr. Duff was concerned that, if granted an absolute
    discharge, the appellant would discontinue his medication. She testified that
    if this occurs and the appellant becomes ill, there is no question that he
    will also become dangerous. Since the appellants medication regime had
    recently been changed, Dr. Duff thought it advisable to monitor it under a
    conditional discharge order, at least for one more year. We cannot say that the
    Boards decision to accept this opinion was unreasonable.

[5]

Second, the appellant contends that the Boards disposition was not
    necessary and appropriate and, specifically, did not sufficiently take account
    of the appellants liberty interest.

[6]

We are not persuaded by this submission. The Board was alive to the
    appellants encouraging improvements and responded to them by deleting several
    restrictions on the appellants liberty, including non-medical use of alcohol
    or drugs and submitting urine samples to CAMH.

[7]

In the end, the Board recorded and accepted Dr. Duffs advice: Before
    making any significant changes to the current Disposition, Dr. Duff feels that
    Mr. Delgado-Cruz needs to have another good year under his belt. We cannot say
    that this is unreasonable. We also observe that in this passage, and in another
    portion of its reasons, the Board made it clear that, if the appellant has
    another good year under the current conditional discharge order, the
    possibility of an absolute discharge order is very much in the cards for the
    2016 hearing which is now scheduled for May 16, 2016.

[8]

The appeal is dismissed.

J.C. MacPherson J.A.

J. MacFarland J.A.

H.S. LaForme J.A.