COURT OF APPEAL FOR ONTARIO

CITATION: Doyle v. Zochem Inc., 2017 ONCA 130

DATE: 20170215

DOCKET: C62270

Weiler, Pepall and Trotter JJ.A.

BETWEEN

Melissa Doyle

Plaintiff (Respondent)

and

Zochem Inc., Horsehead Corporation, Horsehead
    Holding
Corporation, and Stephanie Wrench

Defendants (Appellants)

Martin A. Smith and Rachel C. Leck, for the appellants

Angela Assuras, for the respondent

Heard: January 13, 2017

On appeal from the judgment of Justice John R. Belleghem of
    the Superior Court of Justice, dated May 16, 2016.

Weiler J.A.

A.

Overview

[1]

The trial judge ordered the appellant, Zochem, to pay $60,000 in moral
    damages for the breach of its implied contractual obligation of good faith in
    the manner of dismissal of its employee, the respondent, Doyle. The overarching
    issue on this appeal is whether those damages should be reduced.

[2]

In addition to awarding moral damages, the trial judge held that Doyle
    was entitled to general damages of ten months salary in lieu of notice of
    termination and $25,000 damages for her sexual harassment claim under the
Human
    Rights Code
, R.S.O. 1990, c. H.19 (the
Code
). These amounts were
    not appealed.

[3]

Zochem accepts the trial judges findings of fact. However, it contends
    that the trial judge erred in law in the amount he awarded for moral damages
    because he considered pre and post termination conduct that was irrelevant to
    the manner of termination, as well as factors that did not breach Zochems
    obligation of good faith in dismissing Doyle. In addition, Zochem submits that
    the award of moral damages overlaps and duplicates the award for Doyles sexual
    harassment claim under the
Code
. As a result of these alleged errors,
    Zochem submits that the award for moral damages should be reduced to $20,000.

[4]

At the conclusion of the appellants oral argument, the panel held that
    the award of moral damages should not be reduced and dismissed the appeal with
    reasons to follow. We then heard submissions on costs.

[5]

These are the reasons for dismissing the appeal. In brief compass, while
    some of the factors the trial judge considered could not form part of a claim
    for moral damages, based on the relevant factors he did consider, the amount
    awarded is justified and in harmony with recent jurisprudence. The award of
    damages for sexual harassment under the
Human Rights Code
is not double counting because the award
serves a different purpose than the award of moral damages and the same conduct
    may ground separate awards.

[6]

The factual background and reasons for these conclusions are set out
    below.

B.

Factual background

[7]

For nine years, Doyle, worked for the respondent, Zochem, a company with
    about 50 employees that produces zinc oxide. In the period leading up to
    Doyles termination, the plant where she worked was being prepared for sale. Doyle
    was the plant supervisor and health and safety coordinator, and had a total of
    20 years experience supervising employees. She was the only woman working in
    the plant. Wrench, the assistant general manager, worked in the office. Doyle
    was 44 when she was terminated and 48 at the time of trial.

[8]

In order to perform her job, Doyle needed the cooperation of Rogers, the
    plant maintenance manager. Zochem considered him to be irreplaceable. Rogers
    sexually harassed Doyle. At para. 68 of his reasons, the trial judge listed
    just a few of the examples of this harassment:

·

He
    would stare at her breasts and purport to take a picture of them;

·

He
    told her Philips [an independent contractor who had done work for the appellant
    and with whom Doyle had had a romantic relationship] had an
    "anaconda" in his pants and she should date him;

·

He
    said the "girls", referring to her breasts, looked "good";

·

He
    referred to their private parts as their "little friends";

·

He
    described "bunny ears", meaning her feet up behind her ears (as a
    sexual position);

·

He
    kept telling her she needed to get "laid", or needed "a little
    pounding", asking if she was "getting any";

·

He
    told her how another employee had "the best body";

·

A
    particularly gross example of this "locker room talk" related to her
    request to have him make a forklift attachment. When she later saw him with
    something with a chain on it, which appeared to be what she had asked him to
    make, he told her in fact it was just a device that he was going to put her
    feet in to pull over her head so he could "get at her". She said she
    felt like "a piece of meat".

[9]

At a July 14, 2011 production meeting, during which Doyle raised
    legitimate safety concerns, Rogers and another co-worker, who were aware that
    Doyle was to be terminated, felt free to ignore the safety issues she raised
    and demeaned and belittled her in front of the others. She left the meeting in tears.
    Doyle, unaware that Wrench was going to terminate her and that the termination
    letter was already in the making, turned to Wrench and made a complaint of
    sexual harassment. Wrench did a cursory investigation of the complaint and
    heard from Rogers, but did not give Doyle an opportunity to respond. Wrench
    knew that Doyle suffered from clinical depression for which she was being
    medicated.

[10]

Doyle was terminated without cause on July 19, 2011. The trial judge
    found that Doyles gender and her sexual harassment complaint were likely the
    most significant reasons for why she was terminated.

[11]

There was considerable evidence about the impact of the dismissal upon
    Doyle. She felt betrayed, abused, sad and upset. She was placed upon medication
    for anxiety as she had been shaking constantly. She had migraines, chest pains
    and sleep disturbances. A doctor at the Centre for Addiction and Mental Health
    (CAMH) recommended she be admitted to CAMH. Doyle declined but was placed
    under the care of a psychiatrist. She had significant sleep issues, including
    nightmares about Rogers harassment, and the workplace meeting of July 14. She
    was diagnosed as having a major depressive disorder, with anxiety.

C.

The law

[12]

Beginning with
Wallace v. United Grain Growers Ltd.
,

[1997] 3 S.C.R. 701, at para. 95, the
    Supreme Court of Canada recognized that there is an obligation of good faith in
    the manner of dismissal of an employee and, at paras. 88 and 98, specified that
    damages are available where an employer engages in conduct that is unfair or
    is in bad faith by being, for example, untruthful, misleading or unduly
    insensitive. Initially the award, now known as moral damages, involved compensation
    through an addition to the period of notice. However, in
Keays v. Honda
    Canada Inc.
,
2008 SCC 39, [2008]
    2 S.C.R. 362, at para. 59, the Court essentially did away with the distinction
    between aggravated damages and moral damages and held that these damages should
    be recognized through a fixed monetary award rather than through an extension
    of the notice period: see S.R. Ball,
Canadian Employment Law
,

loose-leaf
    (2016),
vol. 2 (Toronto: Thomson Reuters Canada Ltd., 2007), at § 22:
    20.19 (1.1), p. 22-59 and § 22:20.19 (1.2), p. 22-60.

[13]

The factors relevant to an award of moral damages are not limited to the
    examples in
Honda
, at para. 59

and
Wallace
,

at
    paras.
98, 101. Nor, is the time frame limited to the moment of
    dismissal. Pre and post termination conduct may be considered in an award for
    moral damages, so long as it is a component of the manner of dismissal:
Gismondi
    v. Toronto (City
), 64 O.R. (3d) 688 (C.A.), at para. 23, leave to appeal
    to S.C.C. refused [2003] S.C.C.A. No. 312; Ball, at § 22:20.19(1.1), p. 22-50.

D.

Factors considered in award of moral damages

[14]

The question of moral damages is a fact specific exercise. At the outset
    of the appeal and during oral argument, although arguing that the trial judge
    considered irrelevant factors, Zochem conceded that an award of moral damages
    could be grounded on certain factors relied upon by the trial judge, namely,
    that employees had been instructed by Wrench to dig up dirt on the
    performance of Doyle; that Doyle was told her job was not in jeopardy when, in
    fact, Wrench had already put the wheels in motion with respect to her
    termination; that an employee advised Wrench about Doyles medical condition in
    breach of her privacy; and that Doyles keys were taken from her purse and her
    car was brought around.

[15]

In my view, although the trial judge considered both factors that were
    relevant and irrelevant to an award of moral damages, the award was nonetheless
    justified.

[16]

As found by the trial judge at para. 13, Wrench mangled the termination
    process. Among other things, Wrench recruited employees to dig up dirt to
    discredit Doyle in order to justify her termination and created performance
    reviews to bootstrap the pre-existing determination to terminate Doyle.
    Ultimately, cause was not pursued. The trial judge found that Wrenchs dealings
    with Doyle were completely disingenuous. Wrench assured Doyle that her job
    was not in jeopardy when in fact the decision to terminate had already been
    made and the termination letter was probably already in the making.

[17]

After the termination decision had already been made, as found by the
    trial judge, Wrenchs response to Doyles sexual harassment complaint was
    insensitive to the point of verging on cruel.

[18]

The termination was cold and brusque. Moreover, in spite of being told a
    few days earlier that her job was not in jeopardy, on July 19, Wrench took
    Doyle to the board office. On the way, Wrench said to Doyle, We dont need you
    here anymore, and wish you all the best on your further endeavours. She then turned
    Doyle over to Cheryl Lang, a third-party Human Resources consultant, to do the
    actual termination. At some point during the meeting with Lang, Lang told Doyle
    that she was being irresponsible because Rogers reputation was on the line,
    the inference being that she should abandon her claim of sexual harassment
    against Rogers. The trial judge observed at para. 248:

This was like rubbing salt into a wound for Doyle. She was
    being asked to sign off any rights she may have had arising out of her years of
    harassment, and at the same time, if she chose to do so, add to her pain by
    doing something to reinstate the reputation of her harasser.

[19]

As the appellant acknowledges, when Doyle was terminated, her car was
    brought around without her permission. Her car keys had been taken from her
    purse in order to do so.

[20]

Although the letter of termination presented with a full release
    contained a sentence suggesting that Doyle seek legal advice before accepting
    the benefits offered, she was pressured to immediately sign the release without
    it. In addition, as stated by the trial judge at para. 249:

Numerous other relatively minor defects in the termination
    process were touched on by plaintiffs counsel.  The record of employment was
    not provided. The pension entitlement was at least a year late.  ESA severance
    was referred to in the termination letter, but not provided until later. Although
    Doyles pay was usually simply deposited to her account, the deposit was
    cancelled, and Lang was instructed to get a signed release in exchange for the
    cheques, rather than simply having the money deposited in the account.  When it
    was deposited, the ESA severance was missing for a couple of weeks. There was
    never any lucid explanation to Doyle about how her various financial claims
    were being calculated, and Zochems rationale for their calculations.  Wrench
    was focused entirely on getting Doyle terminated, and getting a release from
    her, in order to fulfill Humphries expectation, just as she had done with
    Chesiuk. The defects in the termination process constituted a model of
    ineptitude.

[21]

Zochem submits that the trial judges criticism of it for its failure to
    provide some form of progressive discipline before terminating Doyle violates
    a fundamental principle of employment law that an employer is not obligated to
    provide progressive discipline leading up to an employees dismissal if it is
    not alleging just cause. In support of its position, Zochem relies on
McNevan
    v. AmeriCredit Corp.
,

2008
    ONCA 846, 94 O.R. (3d) 458, at paras. 41, 43, 50, in which Epstein J.A., on behalf
    of the majority, held that failure to warn about dissatisfaction in job
    performance is not a relevant consideration when determining moral damages:

McNevans contract of employment contained no implied term to
    provide feedback - positive or negative - to an employee, as a necessary
    precursor to dismissal without just cause AmeriCredit does not allege that
    McNevan was dismissed for cause.

[22]

Doyle points out that, at para. 55 of her reasons, Epstein J.A. observed

On its own
,
that failure [to warn the
    employee] cannot amount to bad faith (emphasis added). As well, at para. 61, Epstein
    J.A. commented that when considering alleged bad faith, the employers conduct
    should be considered as a whole along with its overall impact on the
    employee.

[23]

As mentioned, the question of moral damages is a fact specific exercise.
    A significant distinguishing factor that was not present in
McNevan
,

is that, in this case, there is
    evidence of untruthful, misleading or unduly insensitive conduct. In the
    context of this case, the trial judge found at para. 231 of his reasons that
    Wrench held out to Doyle a promise that she would be given a chance to
    improve and also told her that her job was not in jeopardy even though the
    decision to terminate her had already been made. In these circumstances, it was
    open to the trial judge to consider the appellants conduct in this regard.

[24]

I also note that
Elgert v. Home Hardware Stores Ltd.
,

2010 ABQB 65, 486 A.R. 188, at para. 40,
    cited by the appellant, refers with approval to the decision in
Peoples v.
    Ontario (Ministry of Training, Colleges and Universities)
,

2008 Carswell Ont. 7706 (Ont. S.C.), at
    paras. 16-21, a case in which staff were critical of the plaintiffs management
    style. The Ministry commissioned an investigation, but it failed to review with
    the plaintiff the result or to give her an opportunity to respond before
    dismissing her. It was held that dismissal without giving the plaintiff an
    opportunity to respond, to take training to improve her skills, and the
    Ministrys failure to engage in progressive discipline were factors that
    entitled the plaintiff to moral damages.

[25]

Therefore, the trial judges consideration of Zochems
    misrepresentation, that Doyles job was secure and that she would be given a
    chance to improve, coupled with Zochems sudden termination of Doyle and the
    further representation that her services were no longer needed, were not
    improper considerations in the context of this case.

[26]

The appellant further submits that the trial judges consideration of
    the meeting on July 14, 2011 and the subsequent sexual harassment investigation
    were unrelated to the manner of termination, in part, because the decision to
    terminate Doyle had already been made. I would reject this submission. This
    courts decision in
Gismondi
holds that it is not just conduct at the
    moment of termination that may be considered, but conduct that is a component
    of the manner of dismissal.

[27]

Given that the decision to dismiss had already been made, Wrenchs
    cursory investigation and attendant dismissal of Doyles complaint of sexual
    harassment are proper considerations respecting moral damages. The trigger for
    that complaint and investigation was the July 14 meeting. Furthermore, at para.
    278 of his reasons, the trial judge accepted Doyles evidence that she became
    disabled and unable to perform the major duties of her job following the July
    14, 2011 meeting. Thus the July 14, 2011 meeting also served as the trigger for
    Doyles short term disability claim which was wrongfully denied.

[28]

Despite a letter from Zochems own doctor that Doyle would qualify for short
    term disability benefits of six months, Wrench, acting as the self-appointed
    claims adjudicator for Zochems self-funded benefits, denied them.

[29]

The appellant submits that the denial of short term disability benefits,
    while temporally related, is arguably a distinct decision made outside the
    manner of termination. In any event, Zochem submits that even if it was proper
    to include it within the framework of moral damages, at most, a nominal amount
    is warranted for two reasons. The first is that Doyle did not meet the test for
    an award for mental distress in that she suffered no specific or additional
    mental distress arising from the denial. Alternatively, Zochem submits that the
    financial consequences of the refusal to pay were negligible. She was able to
    return to work in six months. Further, the Supreme Court of Canada held in
Sylvester
    v. British Columbia
,

[1997]
    2 S.C.R. 315, at para. 2 that an employees short term disability payments
    received during the notice period should be deducted from damages awarded for
    wrongful dismissal.

[30]

I would reject Zochems arguments. The employers denial of short term
    disability benefits without adequate evidence has been considered a breach of
    the good faith obligation:
Youkhanna v. Spinals Steel Workers Co.
(2001),
    15 C.C.E.L. (3d) 99 (Ont. S.C.) per MacFarland J. as she then was.

[31]

Zochem accepts the trial judges findings. The trial judge found, at
    para. 253 of his reasons, that Zochems conduct in refusing short term
    disability benefits added to the breach of its obligation of good faith and
    perpetuated its tunnel vision approach to getting rid of Doyle. An excerpt from
    Doyles psychiatrists opinion is quoted by the trial judge in para. 92 of his
    reasons, to the effect that when an occupational problem is part of the constellation
    of factors, a circular situation can lead to delayed improvement. Re-engaging
    in a gradual return to work was a necessary part of Doyles rehabilitation and
    treatment but the combination of the denial of short term disability benefits
    and Zochems termination of Doyle made accommodation impossible.

[32]

Zochems argument that the financial consequences were negligible ignores
    the timing of the payments. Short term disability benefits would have started
    right away and would have been for the full amount of Doyles salary for six
    months. Although Doyle was dismissed in July, 2011, she did not receive the ten
    months salary payment in lieu of reasonable notice until after the trial judge
    made his award and gave his reasons in May 2016.

[33]

The trial judge found, at para 95 of his reasons, that Doyle could not
    keep up her mortgage payments and lost her home. She moved in with her mother,
    sleeping on the couch, and borrowed money from friends and her grandmother. Her
    credit cards went into default. She stored her furniture and, in addition to
    those charges, was constantly getting calls from collection agencies. The
    denial of Doyles short term disability benefits contributed to these losses.

[34]

Zochems argument respecting short term disability benefits is
    unsupported in law and on the facts.

[35]

I acknowledge that, as Zochem submits, the trial judge referenced some
    considerations that were irrelevant to an assessment of moral damages. I will
    give a few examples. The trial judge commented that the dismissal arose, in
    part, because the company was getting ready to be sold; the General Manager did
    not select the most logical choice for his successor, a person who would not
    have terminated Doyle; Zochem terminated at least four key employees; and the
    appellant planned the dismissals of two employees well in advance. These
    business considerations could not form the basis of a moral damages award.
    Although Doyle submits that the trial judge referred to this evidence to put
    the more important facts into perspective, it is not apparent from the reasons
    that was what he was doing.

[36]

The appellant also points to aspects of the termination meeting of which
    the trial judge was critical and submits that what took place is standard
    practice in employment law and not bad faith. An example is the trial judges
    criticism that payment of damages in lieu of notice was conditional upon the
    signing of a full release of all claims.

[37]

The trial judge found at para. 171 of his reasons that Doyle was not
    given an appropriate explanation of the release or sufficient time to consider
    it. Nor, despite her repeated requests, was Doyle given an explanation as to
    how the single figure mentioned was calculated.

[38]

In
Strudwick v. Applied Consumer & Clinical Evaluations Inc.
,

2016 ONCA 520, 34 C.C.E.L. (4th) 235, at
    para 101, Epstein J.A. awarded Strudwick aggravated damages for conduct that
    included:

Paperwork [which] had been prepared by the company that was
    designed to deprive her of various legal rights. When she would not sign, she
    was not given money the company then owed her. She was further humiliated by
    having to gather her belongings and leave under the stare of her co-workers.

[39]

Strudwick
illustrates that, while some conduct during a dismissal
    meeting viewed in isolation would not constitute bad faith, the same conduct
    when part of a course of conduct on the part of an employer that inflicts
    mental distress on an employee may legitimately inform the result. Zochem is
    attempting to parse too narrowly what is and is not a component of the manner
    of dismissal and to have this court look at various aspects of its conduct in
    isolation instead of considering it in context and as a whole.

[40]

It is trite law that a trial judges reasons must be read as a whole and
    in context: see
R. v. M. (R.E.),
2008 SCC 51, [2008] 3 S.C.R. 3, at
    para. 16. When that is done in this case, the trial judges conclusion at para.
    184 that Zochems letter of termination, coupled with the circumstances
    surrounding the termination process itself, echoed the hard line tone taken
    by Wrench throughout her dealings with Doyle, is amply supported.

[41]

The more serious aspects of Zochems conduct were appropriately
    considered by the trial judge. His assessment of moral damages is not
    diminished by the lesser irrelevant considerations he did take into account.
    The assessment of damages  is not the equivalent of a mathematical equation
    in which an error in a sub-calculation produces an error in the outcome:
Pate
    Estate v. Galway-Cavendish and Harvey (Township)
, 2013 ONCA 669, 368
    D.L.R. (4th) 193, at para. 82, per Lauwers J.A.in dissent but not with respect
    to this comment.

[42]

Zochems argument that the quantum of moral damages ought to be reduced
    on the basis that the trial judge took into account irrelevant considerations
    is dismissed.

E.

Awarding both moral damages, taking into consideration sexual harassment,
    and
Human Rights Code
damages for infringing Doyles right to freedom
    from harassment was not double recovery

[43]

Zochem submits that the $20,000 award of
Code
damages ought to
    be deducted from the $60,000 award of moral damages because the same conduct
    underlies both awards. With respect to both awards the trial judge commented
    that the investigation of harassment was too short, was unreasonable, was not
    impartial, and ignored advice to deal with the sexual harassment complaint
    before proceeding with termination. The tip line set up by the employer to deal
    with sexual harassment was inadequate as it did not provide anonymity to Doyle.
    The employer failed to implement compliance procedures required by law to
    address sexual harassment in the workplace.

[44]

I would reject this submission. While there is an overlap of conduct,
    the conduct relating to the award of moral damages and that relating to
Code
damages for sexual harassment is not identical. An example of bad faith conduct
    meriting moral damages given in
Honda,
at para.59 is attacking an
    employees reputation
.

Zochem submits
    that it did not engage in an attack on Doyles reputation at the time of
    dismissal. However,

telling Doyle during the termination meeting that
    she was being irresponsible towards Rogers and that his reputation was on the
    line was in effect an attack on Doyles reputation for veracity. This comment
    would be a consideration in the award of damages for bad faith in the manner of
    termination, but not for sexual harassment.

[45]

More importantly, the two judgments on which Zochem relies in support of
    its submission have no application to
Code
damages. In the first,
Honda
,
    at para. 60, the Supreme Court held that the award of moral damages duplicated
    the punitive damages, and that [t]he Court must avoid the pitfall of
    double-compensation or double-punishment that has been exemplified in this
    case. In the second,
Strudwick
, at para. 104,
Wallace
damages
    were deducted from aggravated damages to avoid overlap.

[46]

Neither of these decisions supports the submission that damages under
    the
Code
should be deducted from moral damages. In fact, in
Strudwick,
a separate award for
Code
damages was not deducted from either
    moral damages or aggravated damages.

[47]

What this jurisprudence does illustrate is that when damages vindicate
    the same interests in law, the courts take care to avoid double-recovery. Moral
    damages are awarded as a result of the manner of dismissal, where the employer
    engages in conduct during the course of dismissal that is unfair or is in bad
    faith, that caused mental distress:
Honda
, at para. 57
.
As
    indicated in that decision at para. 56, the normal distress and hurt feelings
    resulting from dismissal are not compensable.

[48]

In contrast,
Code
damages are remedial, not punitive in nature,
    and compensate for the intrinsic value of the infringement of rights under the
Code
.
    Such damages are compensation for loss of the right to be free from
    discrimination and the experience of victimization: see the decision of Ferrier
    J. on behalf of the Ontario Divisional Court in
Lane v. ADGA Group
    Consultants Inc.

(2008),
    91 O.R. (3d) 649
, at para. 148 (involving discrimination in
    the workplace and termination due to the employees bi-polar disorder), cited
    with approval in
Strudwick
, at paras. 57-60

(involving
    discrimination in the workplace and termination due to sudden loss of hearing).
    The right to be free from sexual harassment in the workplace is contained in s.
    7(2) of Part I of the
Code
under the heading, Freedom from
    Discrimination and the damages awarded under this provision serve the same
    purpose, namely, compensation for loss of the right to be free from
    discrimination and the experience of victimization.

[49]

Where, as here, the awards in question vindicate different interests in
    law, there will be no overlap in the damages awarded although the same conduct
    is considered:
Boucher v. Wal-Mart Canada Corp.
,

2014 ONCA 419, 120 O.R. (3d) 481, at
    para. 70.

[50]

Given that the awards in question vindicate different interests in law,
    the trial judge did not err in awarding both
Code
damages and moral
    damages.

F.

The quantum of moral damages should not be reduced

[51]

Zochem submits that the quantum of damages ought to be reduced to
    $20,000.

[52]

I have already rejected the bases for Zochems submissions that the
    award should be reduced.

[53]

In this case, the $60,000 awarded by the trial judge for
    moral damages is not so inordinately high as to warrant appellate intervention
    having regard to the conduct and the corresponding awards of damages in the
    jurisprudence  for example, an award of $200,000 for aggravated damages in
Boucher,
at paras. 72, 76, 77; $70,000 for aggravated damages in
Strudwick
,
    at para. 104; and $75,000 for aggravated damages and $25,000 in
Wallace
damages in
Pate Estate.

[54]

For these reasons the appeal was dismissed.

G.

Costs

[55]

Doyle served an offer to settle the appeal on Zochem. She offered to
    settle the appeal on the basis that if the offer was accepted prior to June 24,
    2016 the appeal would be dismissed without costs. If accepted after that date,
    costs were to be paid on a full indemnity scale. The offer was open for
    acceptance until one minute after commencement of the appeal. Based on her
    offer, Doyle seeks full indemnity costs of $43,600 plus disbursements and HST
    as well as the costs of a motion reserved to the panel hearing the appeal.

[56]

This court is not bound to give effect to rule 49 of the
Rules of
    Civil Procedure
, R.R.O. 1990, Reg. 194. Furthermore, while an offer to
    settle does not have to contain a compromise, the fact that it does not is a
    factor to consider. For these reasons, I would not award full indemnity costs.

[57]

I would, however, award costs on a substantial indemnity scale of
    $40,000 including the costs of the motion, plus HST of $69.99 and disbursements
    of $538.40 on the basis that Zochems conduct in pursuing this appeal was a
    continuation of its oppressive conduct towards Doyle.

Released: S.E.P. February 15, 2017

K.M. Weiler J.A.

I agree S.E. Pepall
    J.A.

I agree G.T. Trotter
    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: Family and Children's Services of the Waterloo
    Region v. K.F., 2017 ONCA 157

DATE: 20170222

DOCKET: M47470 (C63291)

Pardu J.A. (In Chambers)

BETWEEN

The Childrens Aid Society of the Regional
    Municipality of Waterloo

Applicant (Respondent)

and

K.F.

Respondent (Appellant)

Gloria Ichim, for the appellant

Jeffrey W. Boich, for the respondent

Heard: February 10, 2017

ENDORSEMENT

[1]

The appellant K.F. moves for interim access
    pending the hearing of an appeal to this court from the dismissal by the
    Superior Court of Justice of her appeal from a decision of the initial
    application judge making her son a Crown ward, without access.

[2]

She submits that there is a serious issue to be
    determined on appeal  namely, whether the Superior Court appellate judgment
    and the decision of the application judge were correct  and that irreparable
    harm may occur if access is not continued.

A.

Factual background

[3]

Z.A.F. was apprehended by the respondent Childrens
    Aid Society on July 27, 2013 at about eight weeks of age and has remained in
    the care of the same foster parents since that date, about three and a half
    years.

[4]

The Society subsequently brought a protection application
    in the Ontario Court of Justice under Part III of the
Child and
    Family Services Act
, R.S.O. 1990, c. C.11 (CFSA), which
    was heard between May and June of 2015.

[5]

Following a twelve-day trial, in reasons for
    judgment released December 1, 2015, the application judge made an order of
    Crown wardship with no access by either the father or the mother.

[6]

The application judge found that Z.A.F. was in
    need of protection. She accepted the expert testimony that the quality of the
    appellants parenting was hampered by her mental health issues, which made the
    appellant lack insight into Z.A.F.s emotional and developmental needs. The
    appellant had also exposed Z.A.F. to adult conflict and domestic between her
    and her partners.

[7]

The application judge also reviewed some of the expert
    evidence about the bond between the appellant and Z.A.F. She found that,
    although there was some level of affection expressed, there was no strong emotional
    bond between them, and the appellant at times exhibited emotional removal or
    detachment from Z.A.F.

[8]

Given these difficulties, as well as the
    unlikelihood that the appellant would make the changes necessary to become a
    successful parent and lacked significant community or family support, the application
    judge found that a supervision order would not adequately protect the child.

[9]

After concluding that the childs best interests
    required a Crown wardship order, the application judge held that there was no
    basis for an access order. Z.A.F. lived in the care of foster parents for most
    of his life, and there was no evidence that the relationship between K.F. or
    her partner was meaningful or beneficial.

[10]

The appellant appealed this decision to the
    Superior Court of Justice. She brought a motion for a stay pending that appeal,
    as well as an order for access pending the appeal.

[11]

On February 22, 2016, the Superior Court motion
    judge  ordered interim access pending the appeal for two hours once a week, to
    be monitored by the Society until disposal of the appeal.

[12]

This access continued until the mothers appeal
    was dismissed by The Superior Court appeal judge on January 3, 2017.

[13]

The appeal judge concluded, at para. 21 of his
    reasons, that the trial judge was correct in her decision; made the reasonable
    and proper inferences and findings based upon all of the evidence before her;
    and that such inferences and findings were reasonably drawn thereon; and that
    she made no palpable nor overriding error in fact; and was correct in her
    interpretation of the law. On the appeal, the appellants argument was
    essentially that the trial judge should have made different findings of fact.

[14]

The appeal judge dealt with the issue of access
    following an order for Crown wardship at paras. 28 and 33-35:

This issue was argued at trial and the field re-plowed at the
    appeal hearing. Despite certain further evidence being allowed and considered
    at the Appeal Hearing and despite the Agency filing uncontroverted (or even
    challenged) evidence regarding the quality of or impact upon Z.A.F. of
    continued, weekly, supervised access to the Appellant, no new (or any) evidence
    was offered by the Appellant that access was either meaningful or beneficial
    to Z.A.F.. It was argued by Agency counsel that continued access did indeed
    impair the childs opportunity for adoption (despite the 2011 amendments to
    the
Act
). I agree with this submission.

In this case, the trial judge carefully considered the
    evidence, the submissions, applied the legislation and addressed the s. 59(2.1)
    criteria and came to an appropriate decision.

No new evidence was offered on this issue other than counsels
    ingenious speculation that weekly access (since the Sloan J. Order of February
    22, 2016) has created in his mind a routine, so therefore continued access must
    be meaningful to Z.A.F.. Despite that leap, even if it were logical, it is
    refuted by the further evidence of the Agency workers regarding the nature of
    Z.A.F.s behaviour (and K.F.s) during the imposed access visits.

On the evidence, I find that continued access is neither
    meaningful nor beneficial to Z.F. and entirely impairs and obstructs Z.A.F.s
    possible placement for adoption. It is not in his interest (best or
    otherwise) to continue that invasion into his life.

[15]

There was a good-bye visit between the K.F. and
    Z.A.F. on January 9, 2017.

B.

Analysis

[16]

Section 59(2.1) of the CFSA sets out the
    conditions which must be satisfied before an access order can be made in favour
    of a parent, following an order for Crown wardship:

Access: Crown ward

(2.1) A court shall not make or vary an access order
    made under section 58 with respect to a Crown ward unless the court is
    satisfied that,

(a) the relationship between the person and the
    child is beneficial and meaningful to the child; and

(b) the ordered access will not impair the childs
    future opportunities for adoption.

[17]

Once
    a decision is made for Crown wardship, the burden of persuading a court that an
    access order should be made, and that the statutory conditions are met, is on
    the parent seeking access: see
Catholic Childrens Aid Society of
    Metropolitan Toronto v. M. (C.),
[1994] 2 S.C.R. 165, at p. 207; and
Childrens
    Aid Society of Toronto v. P. (D.)
(2006), 19 R.F.L. (6th) 267 (Ont. C.A.),
    at para. 8.

[18]

It
    is of course a very serious matter for the appellant to have had a Crown
    wardship order made without access to her child. I am not persuaded, however,
    that there is a substantial ground of appeal raised in this court. Again, the appellant
    takes issue with the factual findings made by the trial application judge and
    the appeal judge on the fresh evidence.

[19]

I
    have examined the appellants Notice of Appeal in this court. She requests that
    the child be placed with her subject only to a six-month supervision order. It
    is difficult to see how that relief could be granted in the circumstances of
    this case. She asks in the alternative that the child be placed with an 18-year-old
    sibling. This was not advanced at trial. She raises constitutional arguments
    suggesting that various sections of the
CFSA

are void on the ground they violate rights guaranteed by the
Charter
.
    These arguments were not advanced at trial.

[20]

I
    accept that the appellants onus to show that there are serious issues raised
    by the appeal is not a heavy one, but I do have difficulty in concluding that
    there is arguable merit in one of more of the grounds of her appeal. I
    recognize that a motion such as this does not permit a full examination of the
    grounds of appeal.

[21]

There
    are findings by two judges that no order for access should be made on the
    ground that the mother had not shown that the relationship between the person
    and the child is beneficial and meaningful to the child. A decision whether to
    grant access pending appeal must be based on the best interests of the child.

[22]

There
    has been a good-bye visit. Only a month has elapsed since then. Should access
    be resumed until this appeal is heard and decided?

[23]

I
    have reviewed the fresh evidence that was before the appeal judge describing in
    detail the interaction between the mother and her child during the weekly two
    hour access visits. I am not persuaded that those visits are in the childs
    best interests or that the child will suffer irreparable harm if there is no
    access until this appeal is decided. This court gives priority to appeals from
    decisions making Crown wardship orders and this appeal should be able to be
    heard within months. All transcripts have been prepared. In the event the
    appellant succeeds on appeal in obtaining an order for access to her child, I
    am not satisfied that a resumption of access would be traumatic for the child
    given the nature of their relationship.

[24]

For
    these reasons, the motion for access to the child pending the hearing of the
    appeal is dismissed.

G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Finamore v. Finamore, 2017 ONCA 84

DATE: 20170201

DOCKET: C62279

Weiler, Lauwers and Benotto JJ.A.

BETWEEN

Paul Robert Finamore

Applicant (Respondent)

and

Sylvia Catherine Finamore

Appellant (Respondent)

Sylvia Finamore, in person

No one appearing for the respondent

Heard: January 24, 2017

On appeal from the judgment of Justice J.R. Belleghem of
    the Superior Court of Justice, dated June 4, 2014.

ENDORSEMENT

[1]

Mrs. Finamore appeals the terms of a final judgment in a divorce
    application.

[2]

The parties separated in 2009 after 31 years of marriage.

They have a son and a daughter who has Downs
    syndrome and remains a child of the marriage living with the appellant. During
    the marriage, the parties mortgaged the matrimonial home to purchase a business
    which they operated until 2012 when it went bankrupt.

[3]

The appellant seeks to change the trial judges award with respect to
    the equalization payment and her spousal and child support. She also asks this
    court to order the respondent to provide health and dental insurance for her
    and the daughter.

Equalization Payment

[4]

The trial judge determined that the appellant was owed an equalization
    payment of $90,218.31. After the trial, the respondent declared personal
    bankruptcy. The appellant successfully moved before the trial judge to vary the
    final order to provide that the respondents two RRSPs, having a total value of
    $161,699.10, be vested in the appellant.

[5]

She now seeks a recalculation of the equalization payment primarily on
    the basis that certain debts should not have been treated as joint but rather
    attributed only to the respondent. There are two impediments to this assertion.
    First, any increase in the respondents debts would result in a lower, not
    higher equalization payment. Second, and most important, the equalization
    payment was eliminated by the respondents bankruptcy.

Spousal Support

[6]

The appellant submits that the trial judge erred in imputing an income
    of $12,500 to her for purposes of spousal support. In making this
    determination, the trial judge took into account the appellants 25 years
    working at a bank, her bookkeeping experience, and her testimony that her
    health was good and that she would like to return to work. He considered that
    her obligations to her daughter did not occupy all of her time as the daughter
    had a job at Shoppers Drug Mart. The trial judge concluded:

Absent any other evidence to guide me in this regard, I find
    that she is able to work, and ought to be imputed an income on a part-time
    basis of exactly one half of the $25,000 amount which [the respondent] argues I
    should impute to her.

[7]

We see no error in this analysis.

Child Support

[8]

The trial judge ordered child support based on the respondents income
    of $70,000. The appellant advised us that the respondent has a different job
    now, but his income is roughly the same. She, however, is concerned about the
    future for her daughter, in particular, that her health might deteriorate.

[9]

In the unfortunate event that her daughter develops health issues, the
    proper procedure would be a motion to change the child support amount at that
    time.

[10]

The appellant also argues that the trial judge failed to award
    retroactive child support for the period December 2009 to December 2012, prior
    to the interim support award. During that time, she submits that the respondent
    missed payments. However, the trial judge found that, until the interim order,
    the parties were effectively sharing income by drawing money from the company.
    In addition, the respondent was paying her $300 per week. It is clear from the
    trial judges reasons that he was satisfied that the childs needs were being
    adequately covered during the period before the interim order and a retroactive
    adjustment was not necessary.

Health and Dental Coverage

[11]

There was no evidence before the trial judge that the respondent had
    health and dental insurance so he had no basis to make the order. Likewise, there
    is no evidence before this court that his current job provides the health and
    dental insurance so we are unable to make the order requested.   Should
    circumstances change, the proper procedure here would also be a motion to
    change.

Disposition

[12]

For these reasons, the appeal is dismissed.

K.M. Weiler J.A.

P. Lauwers J.A.

M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Granger v. Granger, 2017 ONCA 110

DATE: 20170209

DOCKET: C61292

Cronk, Juriansz and Brown JJ.A.

BETWEEN

John Granger

Appellant (Respondent/Counter-Applicant)

and

Katarina Granger and Helena Granger

Respondents (Applicants/Counter-Respondents)

Saba Ahmad and Michael Hackl, for the appellant

Bruce Baron and Maija Pluto, for the respondents

Reasons released: December 15, 2016

On appeal from the order of Justice James F. Diamond of
    the Superior Court of Justice, dated October 20, 2015, with reasons reported at
    2015 ONSC 6238 and the application decision of March 23, 2015, with reasons
    reported at 2015 ONSC 1711.

COSTS ENDORSEMENT

[1]

On appeal, this court concluded the appellant should have been
    successful at trial and awarded him damages in the amount of
$438,113, in addition to
    other relief.

[2]

Before trial, the appellant made a r. 49 offer to settle for $180,000.
    He is entitled to the application of r. 49.10. As Morden J.A. noted in
Niagara
    Structural Steel (St. Catharines) Ltd. v. W.D. Laflamme Ltd.
(1987), 58 O.R.
    (2d) 773 (C.A.), at p. 777, r. 49.10 is intended to be an incentive to the
    settlement of litigation  the occasions for the application of the exception
    should not be so widespread or common that the result would be that the general
    rule is no longer, in fact, the general rule. It should only be departed from
    where the interests of justice require a departure.

[3]

This is not one of the unusual cases in which the general rule should
    not be applied. The appellant is entitled to partial indemnity costs to
    September 10, 2015, the date of his r. 49 offer, and to substantial indemnity
    costs thereafter to the end of the trial.

[4]

However, we also agree with respondents counsel that a significant
    portion of the trial was devoted to testing claims the appellant made which the
    trial judge found to be untrue. Many of those findings were undisturbed on
    appeal. In other words, even in light of the corrections this court made on appeal,
    the trial was not an unqualified success for the appellant. The costs award
    must reflect this.

[5]

After reviewing counsels detailed bill of costs, and taking into
    account the factors above, we conclude the appellant is entitled to partial
    indemnity costs to September 10, 2015 in the amount of $35,000 and substantial
    indemnity costs from September 10, 2015 to the end of trial in the amount of
    $32,000. The appellants costs for the proceedings below are fixed in the
    amount of $67,000 inclusive of disbursements and applicable taxes below.

[6]

The appellants costs of the appeal are fixed in the amount of $15,000,
    including disbursements and applicable taxes.

"E.A. Cronk J.A."

"R.G. Juriansz J.A."

"David Brown J.A."


COURT OF APPEAL FOR ONTARIO

CITATION: Hebditch v. Birnie, 2017 ONCA 169

DATE: 20170227

DOCKET: C61166

LaForme, Pepall and Pardu JJ.A.

BETWEEN

Jocelyn Hebditch

Plaintiff (Appellant)

and

Jeanne Birnie, Michael Birnie and Ted
    Seddon

Defendants (Respondents)

John J. Adair, for the appellant

Gary J. Marcuccio, for the respondent Michael Birnie

Andrew E. Steinman, for the Estate of Jeanne Birnie

Heard: February 21, 2017

On appeal from the order of Justice Alexander D. Kurke of
    the Superior Court of Justice, dated September 23, 2015.

ENDORSEMENT

[1]

Following oral argument, we
dismissed the appeal
    with reasons to follow. These are those reasons.

Chronology

[2]

The appellant was the personal caregiver for
    Jeanne Birnie, now deceased.  As a result of an accident on March 16, 2007, the
    appellant slipped and fell at the former residence of the deceased.  On July
    26, 2007, the appellant issued a statement of claim claiming damages against
    Jeanne Birnie as an incompetent person with Michael Birnie as her power of
    attorney. It was served on August 21, 2007.

[3]

Michael Birnie is Jeanne Birnies son and a
    senior lawyer in North Bay.  He spoke with counsel for the appellant and said that
    his mother was not incompetent.  The action was subsequently discontinued.

[4]

On February 25, 2008, the appellant issued a new
    statement of claim claiming damages from Jeanne Birnie, Michael Birnie, and
    another defendant.  On July 10, 2008, Michael Birnie wrote to counsel for the
    appellant advising that he and Jeanne Birnie could assure counsel that they had
    absolutely no responsibility, nor did they take any active role, in the
    maintenance of the premises.  In the event that the appellant did not agree to
    withdraw her action against him, he would be taking various steps including
    bringing a motion for summary judgment to dismiss the action as against him and
    would be obliged to seek costs.

[5]

On August 14, 2008, counsel for Jeanne Birnie
    wrote to the appellant advising that she was determining whether her client
    required a litigation guardian.  On September 2, 2008, counsel for Michael
    Birnies insurers wrote to counsel for the appellant advising that their
    instructions were to seek an immediate dismissal of the action against Michael
    Birnie.  By correspondence dated September 9, 2008, the statement of defence of
    Jeanne Birnie, a mentally incapable person, represented by her litigation
    guardian appears to have been sent to opposing counsel.  In the pleading, she
    admits that she was a patient in the care of the appellant and states that the
    appellant was hired to care for her personal welfare and for the care and
    maintenance of the house.  She denied the allegations of negligence and stated
    that the only duties and obligations required of her were those set forth in
    the
Occupiers Liability Act
, R.S.O. 1990, c.
    O.2 (OLA).  She denied any breach of those.

[6]

On September 10, 2008, counsel for the appellant
    wrote to counsel for Michael Birnies insurer stating that [f]urther to our
    conversation of last week, and your letter of September [1]2
th
,
    2008, I confirm that I am prepared to dismiss the action against Mr. Birnie.
    The consent to the dismissal was dated September 11, 2008.  The consent order
    dismissing the action and any cross-claims by and against Michael Birnie was
    dated September 26, 2008 (the Consent Order).  Jeanne Birnie died on December
    8, 2009.

[7]

Pursuant to the March 24, 2011 consent of the
    appellant, an order dated April 13, 2011 was issued permitting the Estate of Jeanne
    Birnie to amend her statement of defence to plead that she was not an occupier
    under the OLA.

Motion to Set
    Aside Consent Order

[8]

Approximately seven years after the September
    26, 2008 Consent Order, the appellant moved under r. 59.06(2)(a) to set aside
    the Consent Order on the basis of facts discovered after the order was made
    (Jeanne Birnies incompetence at the date of loss) and asked, in the alternative,
    that the Estate of Jeanne Birnie be estopped from taking the position that she
    was incompetent at the time of the accident.

[9]

The motion judge dismissed the motion. Among
    other things, he focused on whether the new facts were available by the
    exercise of reasonable diligence at the time of the consent order and
    determined that they were.

Grounds of Appeal

[10]

Before us, the appellant asserted that the
    motion judge misapprehended the record and never considered the deceaseds
    statement of defence in which the appellant alleges the deceased had admitted
    that she was an occupier under the OLA.  Secondly, the appellant submits that
    the motion judge misdirected himself in his application of the test under r. 59
    in failing to address the interests of justice.

[11]

We reject these submissions.

[12]

First, there was no clear and unambiguous
    admission in the statement of defence of the deceased.  Second, it would appear
    that this admission argument was not made before the motion judge nor was it
    advanced in the appellants factum. Third, we are not persuaded that
    consideration of such a factor would have made any difference to the outcome.

[13]

Whether one applies the dicta in
Tsaoussis
    (Litigation Guardian of) v. Baetz
(1998), 41 O.R. (3d) 257 (C.A.)

as the parties and
    the motion judge did or, more properly, the test applicable to setting aside a
    consent order (see for example
Rick v. Brandsema
, 2009 SCC 10, [2009] 1 S.C.R. 295 and
Monarch
    Construction Ltd. v. Buildevco Ltd
.
, 1988 CarswellOnt 369 (C.A.), the same result ensues.  As is
    evident from the chronology, there was no factual or legal basis reasonably
    available on which to set aside the Consent Order and the interests of justice
    do not suggest otherwise.

[14]

Before us, counsel advised that the appellant was
    not pursuing her argument based on estoppel.

[15]

For these reasons, the appeal is dismissed.  The
    appellant is to pay the costs of the respondent, Michael Birnie, fixed in the
    amount of $5,000, and of the Estate of Jeanne Birnie, fixed in the amount of $2,500,
    both sums inclusive of disbursements and applicable tax.

H.S. LaForme
    J.A.

S.E. Pepall J.A.

G. Pardu
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Hydro One Networks Inc. v.
    Ontario (Provincial Police), 2017 ONCA 112

DATE: 20170209

DOCKET: C62302

Feldman, Gillese and Pepall JJ.A.

BETWEEN

Hydro One Networks Inc.

Applicant (Appellant)

and

Ontario Provincial Police

Respondent (Respondent)

Robert Ryan, for the appellant

Christopher Diana and Hera Evans, for the respondent

Heard: February 3, 2017

On appeal from the order of Justice Gregory M. Mulligan
    of the Superior Court of Justice, dated May 19, 2016.

ENDORSEMENT

[1]

During the course of submissions, the court raised the issue of its
    jurisdiction to hear the appeal. Ultimately, the appeal was adjourned to
    receive written submissions on the jurisdiction issue. This is the courts
    endorsement respecting the adjournment.

[2]

Hydro One brought an application against the Ontario Provincial Police
    (OPP) to obtain a declaration that the OPP is required to provide to Hydro
    One, on request, when its property is damaged in a traffic accident, a copy of
    the accident report containing the names and addresses of the driver(s) and
    owner(s), the drivers licence number, insurance information and vehicle permit
    number. Hydro One requires this information to be able to seek compensation for
    its losses.

[3]

Initially, the application related to nine specific accident reports as
    well as the general declaration, but the OPP either consented to or did not
    oppose the order in respect of the specific reports. Those orders having been
    made, the only matter left to be determined was the general declaration.

[4]

The record consists of two affidavits filed by Hydro One, explaining
    that its property was damaged in each of the nine accidents and although it required
    the names of the parties to the accident and their contact information in order
    to be compensated for its loss, the OPP refused to provide a report containing
    all the necessary information without a court order. Therefore, in each case,
    Hydro One was required to commence court proceedings and obtain an order.

[5]

The OPP filed no record. However, its position on the application,
    contained in its factum, is that because of the
Freedom of Information and
    Protection of Privacy Act
, R.S.O. 1990, c. F.31 (
FIPPA
), it will
    not provide such reports containing the personal information of the persons
    involved in the accidents without the protection of a court order.

[6]

The court raised with counsel two issues respecting its jurisdiction to
    hear and determine the appeal as presented: 1) whether the court could make a
    declaration respecting the interpretation of a statute under rule 14.05(3)(d) of
    the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194 when there is no
    actual
lis
between the parties that is before the court; and 2) whether
    the court could make a declaration interpreting the provisions of the
FIPPA
when it is not hearing a judicial review of a decision of the privacy
    commissioner, and if it could, whether the privacy commissioner must be named
    as a party to the proceeding.

[7]

The appeal is adjourned to allow the parties the opportunity to provide
    written submissions to the court on these two jurisdictional questions as well
    as whether the record before the court is sufficient to consider the issue
    raised by the application and the appeal. Each party may provide a factum of a
    maximum of 15 pages within 15 days of the release of this endorsement.

K. Feldman J.A.

E.E. Gillese J.A.

S.E. Pepall J.A.