COURT OF APPEAL FOR ONTARIO

CITATION: J.K. v. Ontario, 2017 ONCA 332

DATE: 20170426

DOCKET: C63171, M47411

MacFarland, van Rensburg and Huscroft JJ.A.

BETWEEN

J.K.

Plaintiff

(Appellant/Responding Party)

and

Her Majesty the Queen in Right of the Province of
    Ontario

Defendant

(Respondent/Moving Party)

Heather Burnett and Jonathan Sydor for the moving party

Kirk M. Baert and James Sayce for the responding party

Heard: February 17, 2017

On motion to quash an appeal from the order of Justice Paul M.
    Perell of the Superior Court of Justice, dated December 22, 2016, with reasons
    reported at 2016 ONSC 8040.

ENDORSEMENT

[1]

This is a motion to quash the within appeal on the basis that the order
    which is the subject of the appeal is interlocutory as opposed to final and any
    appeal from it lies to the Divisional Court with leave, pursuant to s. 19(1)(b)
    of the
Courts of Justice Act
, R.S.O. 1990, c. C.43.

[2]

J.K. is the representative plaintiff in a proposed class proceeding
    brought against Her Majesty the Queen in Right of the Province of Ontario (HMQ)
    on behalf of all persons who were/are detained and/or incarcerated at one of
    the [youth detention centres] from January 1, 2007 to the present and were placed
    in secure isolation while under the age of 18. He was at various times
    detained at three different youth detention centres.

[3]

As noted by the motion judge at para. 3 of his reasons:

For the purposes of the pending certification motion, J.K.
    delivered an affidavit in which he recounts some of his experiences, including
    a description of the youth detention centres and of his confinements in secure
    isolation, which is also described as solitary confinement.

[4]

The issue dividing the parties is set out in paras. 4 through 6 of the
    motion judges reasons as follows:

[4] The Crown wishes to cross-examine J.K., and it wishes to
    obtain production of a variety of what are described as Youth Records under
    the
Youth Criminal Justice Act
, S.C. 2002, c.1. J.K., however, refuses
    to produce the documents, and he submits that the Superior Court does not have
    jurisdiction to order him to produce the documents because of s. 118 of the
Youth
    Criminal Justice Act
, which prohibits access to Youth Records unless
    authorized under that
Act
.

[5] In response to J.K.s motion for certification, the Crown
    seeks an order: (1) declaring that the Youth Records are necessary for the fair
    determination of the certification motion; and (2) directing J.K. to consent to
    an application in the Youth Justice Court for access to all of his records
    maintained by the three facilities, his probation records and various other
    records maintained by the Ministry of Community and Youth Services (the MCYS).

[6] Authorizations are available from judges of the Youth
    Justice Court and J.K. submits that the Superior Court does not have
    jurisdiction to order him to consent to an application by the Crown to obtain
    the Youth Records. Further, J.K. submits that if this court has jurisdiction to
    order him to produce the requested Youth Records, the court ought not to
    exercise that jurisdiction because the Crown has not satisfied the onus on it
    to show that the Records are relevant to the certification motion and that, in
    any event, the request is too broad and beyond what might be produced for the
    certification motion.

[5]

The records that the Crown seeks production of are set out in para. 18
    of the motion judges reasons. There are ten different types of documents
    requested that the motion judge notes are a small subset of the set of
    documents that comprise youth records. Additionally, the Crown requested
    production of the Serious Occurrence Reports from J.K.s probation records, as
    well as the Secure Isolation Report Summaries and related correspondence from
    the MCYS offices and, finally, J.K.s criminal history file from the Canadian
    Police Information Centre (CPIC).

[6]

The Crown argued that the Youth Records were relevant to the
    certification motion with respect to:

(a) Whether
    J.K. was in secure isolation;

(b) If J.K.
    was in secure isolation, particulars of the institution and the time in
    isolation;

(c) Whether
    the placement was in conformity with the governing legislation;

(d) Whether
    J.K. is an appropriate representative plaintiff; and

(e) To test
    J.K.s credibility on the matters about which he deposed in his affidavit.

[7]

The motion judge was satisfied that the Crown had shown the relevance
    of its request for Youth Records. The only exception among the requested records
    was J.K.s CPIC record, which he concluded would offer little relevant
    information.

[8]

The motion judge was further satisfied that he was not precluded by the
Youth
    Criminal Justice Act
from directing a litigant before him to make an
    application to the Youth Justice Court. A conclusion on the propriety of that
    determination is not necessary for the disposition of this motion to quash.

[9]

The motion judge concluded, at para. 39:

If J.K. does not apply to the Youth Justice Court or if he does
    not apply in good faith making a sincere request for the requested Youth Records,
    which documents are needed for the purposes of his own proposed class action,
    then I will stay his proposed class action. If he applies in good faith and the
    Youth Justice Court judge dismisses his request, then once again I will stay
    his proposed class action.

[10]

The formal order provides:

THIS COURT ORDERS that this action shall be stayed unless the Plaintiff
    produces the following Youth Records: [thereafter follows a listing of the records
    ordered produced]

[11]

The order is an unusual one. In mandatory language it orders the action
    stayed unless a condition is met - that condition being that J.K. produce the
    Youth Records.

[12]

More usually, where a party brings a motion for the production of documents,
    an order issued in response will provide for the production of certain
    documents, failing which some penalty or other will be imposed on the
    defaulting party.

[13]

The Crown, in the motion that it brought in response to J.K.s
    certification motion, sought an order that would achieve two things:

(1)

Declare that the Youth
    Records were necessary for the fair determination of the certification motion;
    and

(2)

Direct J.K. to consent to an
    application in the Youth Justice Court for access to all of his records maintained
    by the three facilities where he had been incarcerated, his probation records
    and various other records maintained by MCYS.

[14]

In its materials, the Crown refers to the order as the production
    order and says in its factum that:

The Production Order requires the Appellant to produce to the
    defendant Crown certain records relating to his experiences with SI at the Facilities
    (J.K.s SI Records), failing which the case management judge shall stay the
    action.

[15]

It further states that it is a matter of settled law that production
    orders are interlocutory and thus that this court does not have jurisdiction to
    hear the appeal.

[16]

The responding party submits at para 18 of his factum that the Young
    Offender Records Order is final for four reasons:

(a)

The Young Offender Records
    Order is impossible to fulfill;

(b)

J.K. has lost substantive
    rights that could be determinative of the action;

(c)

Jurisdictional matters such
    as this are final; and

(d)

Non-party production orders
    are final.

[17]

Courts long have repeated the mantra that originated in
Hendrickson
    v. Kallio
, [1932] O.R. 675 (C.A.), at p. 678:

The interlocutory order from which there is no appeal is an
    order which does not determine the real matter in dispute between the
    partiesthe very subject matter of the litigation, but only some matter
    collateral.

[18]

Nevertheless, the question whether an order is final or interlocutory
    continues to vex courts. Had the order in question been differently worded and
    followed the more usual form for such orders resulting from a motion for production
    of documents, I think that there would be little doubt but that the order was
    interlocutory. If, for example, the order read that J.K. was to produce his
    Youth Records, failing which the action would be stayed, such order would be
    interlocutory. As Sharpe J.A. noted in
Inforica Inc. v. CGI Information
    Systems and Management Consultants Inc.,
2009 ONCA 642, 97 O.R. (3d) 161,
    at para. 26:

I recognize that failure to satisfy an order for security for
    costs may lead to a dismissal of the claim, but the sanction for non-compliance
    with an order cannot alter the nature of the order itself. Many procedural or
    interlocutory orders  for particulars, for production of documents, for the
    payment of costs ordered in interlocutory proceedings  may carry the ultimate
    sanction of dismissal of the non-complying partys claim. But if the claim is
    dismissed, the dismissal flows from the partys failure to comply with the
    interlocutory or procedural order, not from the order itself, and does not
    alter the interlocutory or procedural nature of the order that led to
    dismissal: see
Laurentian Plaza Corp. v. Martin
(1992), 7 O.R. (3d)
    111 (C.A.).

[19]

In my view, to suggest that the order in issue is anything more than a
    production order with a sanction in the event of non-compliance would be to put
    form over substance.

[20]

As was said by this court in
Fram Elgin Mills 90 Inc. v. Romandale
    Farms Limited
, 2016 ONCA 404, 131 O.R. (3d) 455, at para. 30:

The nature of the underlying motion is an important
    consideration in deciding whether an order is final or interlocutory.

[21]

The order was made in the context of a production motion brought within
    the motion for certification. What was sought was a declaration that the Youth
    Records were necessary for the fair determination of the certification motion
    and that the plaintiff be required to produce them. That was the substance of
    the motion; it was not a motion for a stay of proceedings. The stay was to be
    imposed only if the Youth Records were not produced.

[22]

This analysis would not change even if compliance with the order by J.K.
    were impossible, as J.K. alleges.
Laurentian Plaza Corp. v. Martin
(1992),
    7 O.R. (3d) 111 (C.A.), at p. 116, clearly holds that an order otherwise
    interlocutory will not be a final order merely because non-compliance with a
    part of the relevant order would determine a substantive right. The application
    of this rule even to an interlocutory order with which compliance allegedly is
    impossible is appropriate because, as the same passage of
Laurentian Plaza
    Corp.
explains, the purpose of the categorization of orders in this
    context is to provide an efficient method through which to divide labour
    between this court and the Divisional Court.

[23]

Therefore, the response to the four arguments raised by the responding
    party is as follows:

(a)

The impossibility concern,
    in the context of this motion, is irrelevant to the categorization of this
    order;

(b)

J.K. has not, by the terms
    of this order, lost any substantive rights that could be determinative of the
    action;

(c)

There is no jurisdictional
    issue engaged by the terms of the order at this stage;

(d)

J.K. is a party to the
    proceeding and he is the person ordered to produce the documents.

[24]

For these reasons, in my view, the order in question is interlocutory, and
    any appeal lies to the Divisional Court with leave. Accordingly, the appeal is
    quashed.

[25]

Costs to HMQ fixed in the sum of $5,192.50, inclusive of disbursements,
    plus HST where appropriate.

J. MacFarland J.A.

K. van Rensburg
    J.A.

Grant Huscroft
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Jansen v.
    Niels Estate, 2017 ONCA 312

DATE: 20170418

DOCKET: C61687

Simmons, Pepall and
    Huscroft JJ.A.

BETWEEN

Marjolein Jansen

Applicant (Appellant)

and

The Estate of Theadora
    Anna Robertina Niels by her Estate Trustee, Richard Eugene Jan Niels, Richard
    Eugene Jan Niels personally,
Ingrid Niels
, Arend Karel Frans Shoemaker,
    Jessica Shoemaker, Albert Jan Shoemaker and Alan Melville John Stephens

Respondents (
Respondent
)

Colin A. Brown, for the
    appellant

Judith L. Turner for the
    respondent, Ingrid Niels

Heard: November 14, 2016

On appeal from the judgment of
    Justice Hugh K. OConnell of the Superior Court of Justice, dated January 12,
    2016, and from the cost order dated November 1, 2016.

By the Court

[1]

This appeal concerns the estate of Theadora Niels, who died in November
    2010. The principal issue is whether her interest in her house passed by right
    of survivorship to her daughter-in-law, Ingrid Niels, pursuant to a joint
    tenancy established by gift, or became part of her estate that is to be shared among
    her children.

[2]

Theadoras daughter, Marjolein Jansen, brought an application seeking a
    declaration that the house is part of the estate and should be distributed
    under a will and codicil made in 2004. Her application was dismissed by the
    application judge. She appeals from that decision and seeks leave to appeal the
    application judges costs award.

[3]

The appeal is dismissed for the reasons that follow. Leave to appeal the
    costs award is granted but the appeal is dismissed.

A.

Background

[4]

Theadora Niels made two wills prior to the 2004 will and codicil, one in
    1998 and one in 1999. These wills divided her estate into three shares, one for
    her son Richard, one for Marjolein, and one to be divided between her son Arend
    (Frank) and his children.

[5]

Marjoleins relationship with Richard was not good. She and her mother were
    once close, but this changed when her mother began a relationship with a
    live-in companion in 1998.

[6]

Things came to a head in 2004, when Marjolein noticed a for sale sign
    on Theadoras property. On November 29, 2004, Marjolein wrote a provocative
    letter to her mother asserting that the sale of the property was her business;
    that Theadora had always said that the house belonged to her and her brothers
    Richard and Frank; and that it was wrong for Theadora to sell the house.

[7]

Marjolein also criticized Ingrid, who was married to Richard at the
    time, and her motives, stating that Ingrid and Richard had succeeded in getting
    rid of her and Frank. Marjolein said that Ingrid was interested only in her
    inheritance and would not care for Theadora, but, instead, would put her into a
    nursing home before she knew it. The letter concluded: You better tell me to
    my face that you have disinherited me.

[8]

Marjolein received no response to her letter. She and her mother never
    spoke again.

[9]

On December 1, 2004  two days following Marjoleins letter  Theadora
    made a new will. She removed Marjolein as an executor but continued to leave
    her a one-third share of her estate. Richard remained executor and Carol Harding,
    the assistant to Theadoras lawyer, was added as an alternate executor.

[10]

Theadora
    had purchased the property that is the subject of this appeal  2425 Flos Road
    10 East, Elmvale Ontario (Flos Road property)  but the sale had not yet
    closed when she made her new will. A codicil dated December 1, 2004 was
    executed providing that if Theadora died before title was taken to this
    property, title would be taken by Richard and the purchase would be funded by
    Theadoras estate.

[11]

Theadora
    took title to the Flos Road property on April 29, 2005. However, title was
    converted to a joint tenancy in two subsequent transactions. On July 18, 2005,
    Theadora transferred title to herself and Richard as joint tenants. On March 5,
    2007, Theadora and Richard transferred title to Theadora, Richard, and Ingrid
    as joint tenants.

[12]

Following
    the purchase of the Flos Road property, an addition of approximately 2800
    square feet was built, which Richard and Ingrid occupied.

[13]

On
    February 28, 2009, Richard and Ingrid signed a separation agreement that
    Richard prepared from a form he obtained on the Internet (2009 separation
    agreement). The agreement, which was made without legal advice, provided that
    Richard would transfer his interest in the Flos Road property to Ingrid following
    the death of Theadora and, among other things, stated that the Flos Road
    property was to be the inheritance of their children. The separation agreement
    also provided (presumably in error) that until transfer  Party 1 [Richard]
    would have the right to exclusive occupation and possession of the matrimonial
    home.

[14]

Theadora
    was diagnosed with cancer in 2010 and given 6-12 months to live. She asked
    Ingrid to take care of her and Ingrid did so. Shortly before her death on November
    22, 2010, Theadora made a phone call to her alternate executor, Carol Harding
    (dialing the number with Ingrids assistance), seeking assurance that the Flos
    Road property would go to Richard and Ingrid when she died. Ms. Harding assured
    her of this.

[15]

On
    October 31, 2011, Richard and Ingrid signed an Amending Agreement to their 2009
    separation agreement. The Amending Agreement, prepared by a lawyer, stated that
    they jointly owned the Flos Road property and that Richard was transferring his
    right, title and interest to Ingrid. On December 12, 2011, a transfer was
    registered, transferring title from Richard and Ingrid to Ingrid alone.

[16]

On February 17, 2012, Marjolein brought her application seeking a
    declaration that the Flos Road property is part of Theadoras estate.

B.

The application judges decision

[17]

The
    application judge flatly rejected Marjoleins allegation that Ingrid had, in
    essence, taken advantage of Theadora and thereby deprived Marjolein of her
    share of the Flos Road property as an inheritance.

[18]

The
    application judge found that Ingrid was a caring and loving daughter-in-law and
    accepted her evidence completely. He found that Ingrid cared for Theadora, in
    contrast to what he described as the callousness shown to Theadora by Marjolein
    and her husband. Where the evidence conflicted, the application judge accepted
    the evidence of Ingrid over that of Marjolein and her husband.

[19]

The
    application judge found that although she did not say specifically that she was
    gifting the Flos Road property, Theadora clearly intended to do so and
    completed her gift in accordance with the requirements set out by this court in
McNamee v. McNamee
,
2011 ONCA 533, 106 O.R. (3d) 401 and
Foley v. McIntyre
, 2015 ONCA 382,
    125 O.R. (3d) 721. The gift was fully and freely informed and the presumption
    of undue influence was rebutted. The application judge found, at para. 187,
    that to the end, Mrs. Niels was cognitively engaged, unfettered by persuasion
    and did what she wanted. The evidence is clear on this point. There is simply
    no evidence to suggest otherwise. Consequently, the resulting trust
    presumption was rebutted.

[20]

The application judge found that Theadora acted with legal advice
    in creating the joint tenancy, first with Richard and then with Richard and
    Ingrid, and that Theadora understood the difference between joint tenancy and
    tenancy in common. The application judge stated, at para. 180: There is not
    one scintilla of evidence to suggest that the parties intended to mutually
    treat the tenancy as constituting a tenancy in common. He stated, further,
    that the 2009 separation agreement between Ingrid and Richard did not evidence
    a course of conduct to sever the bona fide joint tenancy. The application
    judge did not address the concept of severance in detail. Instead, he adopted the
    submissions of counsel for Ingrid that the joint tenancy had not been severed, submissions
    that were based on this courts decision in
Hansen Estate v. Hansen
,
2012 ONCA 112, 109 O.R. (3d) 241.

[21]

The
    application judge found that no shenanigans, or manoeuvres of title were used
    to deprive the estate of an asset. He found no unjust enrichment and no
    constructive trust. The application judge summarized his decision as follows,
    at para. 191:

[T]his case [concerns] an inter vivos gift meant to be
    accomplished outside of the estate stream, and I am completely satisfied that
    the gifting and the intent of the testatrix make for bona fide ownership of the
    property in the hands of Ingrid Niels.

C.

Issues on appeal

[22]

Marjolein
    submits that the application judge made several errors in his judgment and
    costs award. The issues may be summarized and addressed as follows:

1.

Did
    the application judge err in concluding that the joint tenancy had not been
    severed?

2.

Did
    the application judge err in concluding that Theadora gifted the property to Richard
    and Ingrid?

3.

Did
    the application judge err in concluding that Theadora was not subject to undue
    influence?

4.

Did
    the application judge err in awarding costs against her and not the estate, or,
    in the alternative, err in the amount that he awarded?

D.

Analysis

Was the Joint Tenancy Severed?

[23]

It
    is well established that severance of a joint tenancy may be achieved in one of
    three ways  described as the three rules in
Hansen
, at para 34, and
    summarized as follows:

Rule 1: unilaterally acting on ones own share, such as selling
    or encumbering it;

Rule 2: a mutual agreement between the co-owners to sever the
    joint tenancy; and

Rule 3: any course of dealing sufficient to intimate that the
    interests of all were mutually treated as constituting a tenancy in common.

[24]

Marjoleins
    primary submission is that that the joint tenancy was severed by the 2009
    separation agreement, pursuant to which Richard agreed to transfer his interest
    in the property to Ingrid on the death of Theadora and, which, in any event,
    included a grant of exclusive possession of Richard and Ingrids matrimonial
    home. This, it is said, means that Theadoras interest is no longer identical
    in nature, extent, and duration to Richards or Ingrids, and that both Richard
    and Ingrid hold their interests as tenants in common. Marjoleins submission
    relies on Rules 1 and 3.

[25]

This
    submission must be rejected.

[26]

First, as to Rule 1, assuming that the 2009 separation agreement
    between Richard and Ingrid was valid and enforceable  a matter not addressed
    by the application judge  it did no more than express an intention to convey
    Richards interest in the Flos Road property in the future. It is not clear
    that an expression of intention is sufficient to achieve severance: see Kevin
    Gray and Susan Francis Gray,
Elements of Land Law
,
    5th ed. (
Oxford: Oxford University Press, 2009), at p. 950.

[27]

The
    agreement is ambiguous, as might be expected given the parties lack of legal
    advice. But the submission that conveyance of Richards interest, and the grant
    of exclusive possession, severed the joint tenancy fails in any event, for a
    more fundamental reason. Where, as here, there are three joint tenants, the
    conveyance of one joint tenants interest to another, or the grant of exclusive
    possession by one joint tenant to another, severs only the interest of the
    joint tenant making the conveyance or granting exclusive possession. It does
    not sever the whole of the joint tenancy.

As
    Latham C.J. explains in
Wright v. Gibbons
, [1949] 78 C.L.R. 313 (H.C.A),
    at p. 324-325:

If there are three joint tenants, A, B and C, and one joint
    tenant A transfers his interest to another joint tenant B, the result is that A
    then has no interest in the land, B becomes a tenant in common as to one-third
    interest in the land, and remains a joint tenant with C as to a two-thirds
    interest.

See also:
Megarry & Wade: The Law of Real
    Property
, 8th ed.
(London:
    Sweet & Maxwell, 2012), at p. 513; Gray, at pp. 947-948, Bruce Ziff,
Principles of Property Law
, 6th ed. (Toronto: Carswell,
    2014), at pp. 344-345; and
Anger & Honsberger
, loose-leaf, 3rd ed.
    (Toronto: Thomson Reuters, 2016), at para. 14.20.120.

[28]

Thus,
    the 2009 separation agreement could sever no more than Richards one-third interest
    in the joint tenancy. The joint tenancy held by Theadora and Ingrid over their two-thirds
    interest of the Flos Road property would subsist, with Richard holding a
    one-third interest as a tenant in common. When Theadora died, the two-thirds interest
    she held jointly with Ingrid passed to Ingrid by survivorship, leaving no
    portion of the property to pass to her estate.

[29]

If, on the other hand, the separation agreement
    did not have the effect of severing Richards interest in the joint tenancy
,
then the joint
    tenancy continued. On Theadoras death, her one-third interest would have
    passed to Richard and Ingrid by right of survivorship, leaving no portion of
    the property to pass to her estate. Richard and Ingrid would have become joint
    tenants of the whole of the Flos Road property.

[30]

Thus,
    in either case, no part of the Flos Road property would become part of the
    estate.

[31]

Marjoleins
    submission that the joint tenancy was severed by the provision in the 2009
    separation agreement that Richard and Ingrids children would inherit the
    property must also be rejected. In general, a joint tenancy is unaffected by a
    will, because property is conveyed pursuant to the joint tenancy outside the
    terms of the will: see Ziff, at pp. 345-346. However, even assuming that the
    simultaneous execution of mutual wills could have the effect of severing a
    joint tenancy, no finding was made that mutual wills were executed in this case.

[32]

Marjoleins
    submission that the parties made a mutual decision to sever the joint tenancy
    must also be rejected.

[33]

As
    the court explained in
Hansen
, at para. 7:

A proper application of the course of dealing test for severing
    a joint tenancy requires the court to discern whether the parties intended to
    mutually treat their interests in the property as constituting a tenancy in
    common. It is not essential that the party requesting a severance establish
    that the co-owners conduct falls into a formulation found to have had the
    effect of severing a joint tenancy in other cases. The courts inquiry cannot
    be limited to matching fact patterns to those in prior cases. Rather, the court
    must look to the co-owners entire course of conduct  in other words the
    totality of the evidence  in order to determine if they intended that their
    interests were mutually treated as constituting a tenancy in common. This
    evidence may manifest itself in different ways.

[34]

In
    short,
Hansen
requires a court to determine,
    having regard to all of the evidence, whether the parties intended to treat
    their interests as constituting a tenancy in common. This is a fact-specific
    inquiry that is subject to deference on appeal.

[35]

As
    noted above, the application judge found not one scintilla of evidence that
    the parties intended to mutually treat the tenancy as a tenancy in common. He
    found, further, that Richard and Ingrids 2009 separation agreement did not
    evidence a course of conduct to sever the bona fide joint tenancy. This was so
    in spite of any divided living or exclusive possession arrangements related to the
    occupation of the property.

[36]

These
    findings were open to the application judge on the record before him and they
    are fatal to this submission.

Was the Property Gifted?

[37]

Marjolein
    submits that the application judge erred in several respects in concluding that
    Theodora gifted the Flos Road property to Richard and Ingrid. For example, Marjolein
    notes that Richard claimed to have purchased the property; that Ingrid did not
    claim that a gift had been made to her until the hearing; that neither
    Theadoras lawyer nor her alternate executor, Carol Harding, testified that a
    gift had been intended; that there was no explanation for the exclusion of
    Frank from the will; and that the will, at the time of the transfers, had
    divided both real and personal property into thirds for the three children.

[38]

Marjolein
    adds that the application judge erred in assuming that Theadoras action in
    placing her property into joint names was evidence that a gift was being made. Finally,
    Marjolein argues that the application judge wrongly relied on notes documenting
    a visit and phone call Theadora made to her lawyers office in determining her
    intention concerning the gift.

[39]

These
    submissions must be rejected.

[40]

The
    application judge applied the proper test for a gift, as set out in
McNamee
and summarized in
Foley
at para.
    25
: To establish a gift, one must show intention to donate,
    sufficient delivery of the gift, and acceptance of the gift.

[41]

As
    the application judge noted, it was not necessary for Theadora to state that
    she was gifting the property. Her intention to gift the property was evident
    from her instructions to her solicitor and his assistant and the executed
    documents, all of which supported this finding. This included:

·

her
    advice to her solicitor that she would take title alone and add Richard to the
    deed later;

·

the
    codicil to her will, making it clear that the home would not form part of her
    estate;

·

her
    request that the joint tenancy between herself and Richard be created on his
    return to Canada;

·

the
    absence of any request to revert the title to tenancy in common; and

·

her
    call to Carol Harding seeking assurance that her home would pass to Richard and
    Ingrid on her death.

[42]

Furthermore,
    the application judge found that Theadora received legal advice from a lawyer
    who knew her well; that she understood the consequences of joint tenancy as
    opposed to tenancy in common; and that she was mentally engaged and cognitive
    until her death.

[43]

The
    application judge did not wrongly rely on evidence of notes documenting
    Theadoras visit to her lawyers office in September 2004 and a phone call made
    to the office in November, 2004, in determining her intention concerning the
    gift. The application judges reasons, and in particular para. 148, do not
    reflect acceptance of the notes on Theadoras visit as evidence of intention.
    Rather, the notes were part of the narrative explaining the steps that led to
    title being in the names of Theadora and Richard and the contents of the
    codicil. This would also help explain why the appellant took no objection at
    trial to the admission of the notes.

[44]

As for the note documenting the
    November, 2004 call, although it was not admissible for the truth of its
    contents, its use was limited and served to provide a chronology of a visit
    that Marjoleins husband admitted he made to Theadora. Theadoras upset could
    reasonably be inferred from: the evidence proffered by the appellant including
    her incendiary letter sent to her mother dated November 29, 2004; the will and
    codicil made two days later; the appellant's testimony that her mother would
    not talk to her; and the fact that November 29, 2004 was the last time the
    appellant talked to her mother. We note also the application judge's finding of
    Theadora's independence and capacity; Theadoras estrangement from the
    appellant; and the application judges credibility findings favouring Ingrid.
    In sum, the note of the telephone call had no material bearing on the outcome
    of the application.

Was Theadora Subject to Undue Influence?

[45]

Marjolein
    submits that the application judge erred by, in effect, requiring her to
    establish undue influence rather than simply demonstrate that the relationship
    of the parties gave rise to a potential for undue influence.

[46]

There
    is no merit to this submission.

[47]

The
    application judge applied the law as set out in
Foley
, in which this
    court noted, at para. 28, that the presumption of undue influence applies [w]here
    the potential for domination inheres in the relationship between the transferor
    and transferee, citing
Goodman Estate v. Geffen
,
    [1991] 2 S.C.R. 353, at p. 378. Where the presumption applies, the transferee
    must establish that a gift was the result of the full, free, and informed
    thought of the transferor. Evidence that the transferor received qualified and
    independent advice can be used to rebut the presumption, although it is not
    required in every case. But corroborating evidence is required in order to
    rebut the presumption, whether direct or circumstantial in nature.

[48]

The
    application judge applied the presumption that undue influence was exerted, but
    based on his factual findings concluded, at para. 184, that the potential for
    domination and therefore undue influence is completely rebutted. The application
    judge emphasized the independence of Theadora. He found that her advanced age
    was not a trigger for domination. This was not a case in which a totally new
    estate plan had been entered by a person facing a terminal illness. Theadora
    was pursuing an intention to gift the property that she developed in 2004 and
    never wavered from. She was cognitively engaged and unfettered by persuasion.

[49]

Although
    the application judge said that Marjolein provided no evidence of undue
    influence, when his decision is read as a whole, it is clear that he did not
    reverse the burden of proof and require Marjolein to prove undue influence. On the
    contrary, the application judge acknowledged the operability of the presumption
    but found that it was rebutted. As the application judge put it, at para. 179:
    Nothing in the evidence causes me any concern that the direction and eventual
    registration of the tri joint tenancy deed, was done with anything less than
    the full acquiescence, acceptance and complete concurrence of Mrs. Niels.

[50]

This
    ground of appeal must be rejected.

Costs Award

[51]

The
    application judge awarded the respondent costs of $55,951, inclusive of taxes
    and disbursements.

[52]

Marjolein
    submits that the application judge erred in awarding costs against her and not
    against the Estate. She says that the Estate was a party to the proceedings and
    the application judge erred in concluding otherwise. She submits, further, that
    Theadora was at fault for failing to spell out her intentions with regard to placing
    the property into joint names, and a hearing was required to determine the matter
    as a result. In these circumstances, public policy considerations require the
    Estate to pay costs.

[53]

We
    would reject this submission.

[54]

The
    Estate had minimal involvement in the proceedings and was not represented at the
    hearing. The litigation was brought by Marjolein in an attempt to undo
    arrangements Theadora had made in order to ensure that no part of the Flos Road
    property would pass to her. Marjoleins submissions were rejected
    comprehensively by the application judge and her application was dismissed. We
    see no public policy considerations that warrant relieving her of the
    responsibility to pay costs normally borne by the losing party: see
McDougald
    Estate v. Gooderham
(2005), 255 D.L.R. (4th) 435 (Ont. C.A.).

[55]

As
    to the quantum, the application judge considered the fairness, reasonableness,
    and proportionality of the costs in all the circumstances. As the application
    judge noted, the parties cost outlines were within $1,000 of each other, with counsel
    for Marjolein seeking the slightly higher amount. In all of these
    circumstances, we would not interfere with the exercise of the application
    judges discretion.

E.

Disposition

[56]

The
    appeal is dismissed.

[57]

The
    respondent is entitled to her costs on the appeal, fixed in the amount of $9,000,
    inclusive of taxes and disbursements.

[58]

Leave
    to appeal the costs awarded on the application is granted, but the appeal is
    dismissed.

Released: SEP APR 18 2017

Janet Simmons J.A.

S.E. Pepall J.A.

Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Jarbeau v. McLean, 2017 ONCA 294

DATE: 20170411

DOCKET: C61681

Simmons, LaForme and Pardu JJ.A.

BETWEEN

Darren Jarbeau and Lilian Jarbeau

Plaintiffs
    (Respondents)

Appellants by Cross-Appeal

and

Ian McLean

Defendant
    (Appellant)

Respondent by Cross-Appeal

Paul J. Pape, Shantona
    Chaudhury and Justin H. Nasseri, for the appellant

Mark H. Arnold, Chris G.
    Paliare and Alex Young, for the respondents

Heard: September 27, 2016

On appeal from the judgment
    of Justice R. Dan Cornell of the Superior Court of Justice, dated January 21,
    2016, and from the costs order, dated June 9, 2016, with reasons reported at
    2016 ONSC 3789.

COSTS ENDORSEMENT

[1]

The issue of costs remains. McLean was
    unsuccessful on the appeal; Darren and Lilian Jarbeau were successful on the
    cross-appeal. There is no dispute that costs should follow the result; the
    substance of the dispute is about quantum.

[2]

The Jarbeaus ask for costs for both appeals
    totaling $97,331.97. Mr. McLean submits that this is excessive, and that costs
    should not exceed $40,000.00

[3]

The Jarbeaus had to retain separate counsel for
    the cross-appeal, because the conduct of their trial counsel was in issue. In assessing
    a fair and reasonable amount for costs, I also consider the amounts in issue,
    the complexity of the legal issues raised, as well as the single day required
    for the hearing of this appeal.

[4]

I would allow $75,000 in costs to the Jarbeaus,
    allocated, $18,000 to the cross-appeal and $57,000 to the appeal, both amounts
    inclusive of disbursements and applicable taxes.

[5]

The Jarbeaus also ask that this court fix the
    amount of the prejudgment interest. I see no reason why that should be
    necessary, as the amended judgment will bear interest in accordance with the
Courts
    of Justice Act
.

[6]

They also ask this court to reconsider the costs
    award granted by this court for the trial, on the basis that as a result of
    this courts decision they bettered not only their second offer, but also an
    earlier offer to settle. They submit that this should increase the costs
    awarded for the trial by a further $14,586. In all the circumstances, I would
    not vary the judgment of this court awarding trial costs of $231,000.00.

Janet Simmons J.A.

H.S. LaForme J.A.

G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Jones Collombin Investment Counsel Inc. v.
    Collombin, 2017 ONCA 288

DATE: 20170406

DOCKET: C62947

Doherty, MacFarland and Rouleau JJ.A.

BETWEEN

Jones Collombin Investment Counsel Inc. and
    2466043 Ontario Inc.

Plaintiffs (Appellants)

and

Beverley Collombin and David W. Fickel

Defendants (Respondents)

AND BETWEEN

David W. Fickel

Plaintiff by Counterclaim

and

Jones Collombin
    Investment Counsel Inc. and 2466043 Ontario Inc.

Defendants to the Counterclaim

Jaan E. Lilles and Sam Johansen, for the appellants,
    Jones Collombin Investment Counsel Inc.

Allison Buchanan, for the respondent, Beverley Collombin

Paul Le Vay and Carlo Di Carlo, for the respondent,
    David Fickel

Heard:  April 4, 2017

On appeal from the order of Justice Michael A. Penny of
    the Superior Court of Justice, dated October 26, 2016.

APPEAL BOOK ENDORSEMENT

[1]

We cannot accept the appellants submissions.  The trial judge was alive
    to the relevant legal principles. He focused, although not exclusively, on the
    language of the key passage in the agreement.  He did not find the language
    ambiguous, and gave it its plain meaning.  He did so with an appreciation of
    the rest of the provisions and the circumstances giving rise to the agreement.
    We cannot say that the trial judges interpretation of the provisions (see
    para. 34) is unreasonable.  Absent an error in law, our inquiry can go no
    further.

[2]

The appeal is dismissed.  Costs to the respondent in the amount of
    $20,000 all in.


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: K.R. v. M.R., 2017 ONCA 339

DATE: 20170428

DOCKET: C63036

Blair, Juriansz and Miller JJ.A.

BETWEEN

K.R.

Appellant (Appellant)

and

M.R.

Respondent (Respondent)

and

Windsor-Essex Childrens
    Aid Society

Friend of the Court

Jo-Ann J. Avery, for the appellant

No one appearing for the respondent

Jack Sullens, for the Windsor-Essex Childrens Aid
    Society

Heard and released orally: April 24, 2017

On appeal from the judgment of Justice Kirk W. Munroe of
    the Superior Court of Justice, dated September 2, 2016.

ENDORSEMENT

[1]

This appeal is moot. The appellant
    recognizes that by observing, at the outset, that the appeal is not about the
    return of the child. The appeal involves a question of law considered in the
    absence of a concrete dispute between the parties. While the appellant
    sincerely pressed the importance of that question of law, the decision of the
    appeal court below to refuse to entertain the appeal because it is moot is
    discretionary. An overriding and palpable error must be demonstrated before we
    can interfere with a discretionary decision.
We are not persuaded that
    there was any such error. The judge below considered and applied the proper
    factors as set out in
Borowski v. Canada (Attorney General)
, [1989] 1 S.C.R. 342.

[2]

The appeal must be dismissed.

R.A. Blair J.A.

R.G. Juriansz J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Ken Jackson Construction Limited v. Macklin, 2017
    ONCA 324

DATE: 20170421

DOCKET: C62865

Weiler, Pardu and Roberts JJ.A.

BETWEEN

Ken Jackson Construction Limited

Plaintiff (Respondent)

and

Geoffrey
    Macklin, Jeremey Macklin and Macklin Bros.

Construction
    Ltd., sometimes known as Macklin Bros.

Construction, and
    sometimes known as MBC

Defendants
    (Appellants

Robert J. Reynolds, for the appellants

Douglas A. Grace and Sha Habi, for the respondent

Heard: April 13, 2017

On appeal from the order of Justice Gibson of the
    Superior Court of Justice, dated September 20, 2016

AMENDED ENDORSEMENT

[1]

At the request of the appellants, respondent not opposing, this court’s
    endorsement of April 21, 2017 is modified to increase the costs awarded to the
    appellant to $8,500 for fees plus $1,539 for disbursements plus HST.

“K.M. Weiler J.A.”

“G. Pardu J.A.”

“L.B. Roberts J.A.”

COURT OF APPEAL FOR ONTARIO

CITATION: Ken Jackson Construction Limited v. Macklin, 2017
    ONCA 324

DATE: 20170421

DOCKET: C62865

Weiler, Pardu and Roberts JJ.A.

BETWEEN

Ken Jackson Construction Limited

Plaintiff (Respondent)

and

Geoffrey
    Macklin, Jeremey Macklin and Macklin Bros.

Construction
    Ltd., sometimes known as Macklin Bros.

Construction, and
    sometimes known as MBC

Defendants (Appellants)

Robert J. Reynolds, for the appellants

Douglas A. Grace and Sha Habi, for the respondent

Heard: April 13, 2017

On appeal from the order of Justice Gibson of the
    Superior Court of Justice, dated September 20, 2016,

ENDORSEMENT

[1]

The appellants appeal the dismissal of their motion to set aside the
    noting in default and default judgment obtained by the respondent. In its action,
    the respondent sought payment of outstanding invoices for work rendered as the
    corporate appellant's subcontractor on various construction projects.

[2]

We agree that the motion judge erred and that his decision should be set
    aside, for the following reasons.

[3]

Firstly, the Registrar signed judgment against the individual appellants
    for the amounts of the invoices billed to the corporate appellant. The claims
    pleaded by the respondent against the individual appellants were for breach of
    trust and conversion. There was no basis pleaded that would make the individual
    appellants liable for invoices billed to the corporation. The respondent did
    not seek to pierce the corporate veil: see
Mitchell v. Lewis
2016 ONCA
    903. In any event, personal liability like this would not amount to a debt or
    liquidated demand in money within the judgment signing jurisdiction of the
    Registrar: see
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194, r. 19.04(1).

[4]

Secondly, the Registrar had no jurisdiction to grant judgment against the
    individual appellants on the claim against them for breach of trust and
    conversion, as this was also not for a debt or liquidated demand in money.

[5]

Specifically, in its statement of claim, the respondent sought
    unspecified damages for breach of trust and conversion. It did not plead any
    facts which would have allowed a court to conclude that the appellants had
    misapplied trust funds or the amount of any wrongful use of trust funds.
    Moreover, it is clear from the statement of claim that the claim against the
    individual appellants is merely contingent; it is only in the event that they
    have failed to retain sufficient trust funds that the claim is made. To that
    end, the respondent sought an accounting.

[6]

Further, the Registrar erred in awarding interest on the judgment
    against the appellants at the rate of 2 per cent per month when the statement
    of claim failed to plead the respondent's entitlement to such a rate. There was
    no basis pleaded in the statement of claim that would allow interest to be
    awarded at a rate other than in accordance with ss. 128 and 129 of the
Courts
    of Justice Act
, R.S.O. 1990, c. C.43.

[7]

In summary, where, as here, with respect to the liability of the
    individual appellants and the rate of interest claimed, the statement of claim
    did not contain the particulars required to sign default judgment for a debt or
    liquidated demand of money, the default judgment is granted without
    jurisdiction. The appellants were entitled to have the judgment set aside as of
    right in the interests of justice. See
Schill & Benninger Plumbing and
    Heating v. Gallagher Estate
, [2001] O.J. No. 260 (C.A.), paras. 8-10. The
    motion judge erred in not doing so.

[8]

Where a Registrar has jurisdiction to sign default judgment, a motion judge
    has discretion to set aside a default judgment after weighing and balancing the
    following five factors, which were set out in
Intact Insurance Co v. Kisel,
2015 ONCA 205, 125 O.R. (3d) 365, at para. 14:

(a) whether the motion was brought
    promptly after the defendant learned of the default judgment;

(b) whether the defendant has a
    plausible excuse or explanation for the default;

(c) whether the defendant has an
    arguable defence on the merits;

(d) the potential prejudice to the
    defendant should the motion be dismissed, and the potential prejudice to the
    plaintiff should the motion be allowed; and

(e) the effect of
    any order the court might make on the overall integrity of the administration
    of justice.

[9]

Here, the Registrar had jurisdiction to sign judgment against the
    corporate appellant for the amounts invoiced to it by the respondent. Although
    the motion judge enumerated the five well-known criteria from
Kisel
,
    he applied them too rigidly and erred in failing to consider the overarching
    factor of whether the justice of the case required him to allow the action to
    be adjudicated on its merits.

[10]

The appellants' evidence met the air of reality test and demonstrated an
    arguable defence on the merits in relation to the issues of whether the
    respondents action was statute-barred, whether the rate of interest claimed
    was sustainable and whether there was any claim for breach of trust against the
    individual appellants. Further, the respondent filed no evidence that it would
    suffer any prejudice if the noting in default and default judgment were set
    aside.

[11]

Having regard to the arguable defences on the merits and absence of
    prejudice, as well as the relatively short delay of about four months between
    the service of the statement of claim and the appellants' retaining counsel to
    deal with the claim, together with the appellants' explanation for the delay,
    the criteria to set aside the noting in default and default judgment are
    satisfied.

[12]

The motion judge erred in principle, and his exercise of discretion refusing
    to set aside the noting in default and default judgment was unreasonable.

[13]

Accordingly, the appeal is allowed. The decision of the motion judge is
    set aside. The default judgment and the noting in default of the appellants are
    set aside.

[14]

The appellants shall serve and file their statement of defence within
    thirty days of the release date of these reasons.

[15]

With respect to costs, the appellants are entitled to the costs of this
    appeal which we fix at $8,500.00 inclusive of disbursements and taxes.

[16]

Any order for costs on the motion below in favour of the respondents on
    the appeal is set aside, and in its place will be substituted an order of costs
    in favour of the appellants in an amount equal to 66% of the costs awarded by
    the motion judge. This reduced amount is awarded to recognize that the
    appellants failure to file a timely defence contributed to the issues giving
    rise to the appeal.

K.M.
    Weiler J.A.

G.
    Pardu J.A.

L.B.
    Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Lawrence v. International Brotherhood of Electrical
    Workers

(IBEW) Local 773, 2017 ONCA 321

DATE: 20170420

DOCKET: C62621

Sharpe, Lauwers and Hourigan JJ.A.

BETWEEN

Pamela Lawrence

Plaintiff (Respondent)

and

International Brotherhood of Electrical Workers
    (IBEW) Local 773, Karl Lovett, Ken Gelinas, Jeff McPherson, Mark Stobbs, Sean
    Bristow, Robert Duby, Norm Ball, and Fred Bloomfield

Defendants (Appellants)

Dan Shields and Brandin OConnor, for the appellant

Robert D. Reynolds, for the respondent

Heard: February 28, 2017

On appeal from the order of Justice Pamela L. Hebner of
    the Superior Court of Justice, dated August 18, 2016.

Sharpe J.A.:

[1]

The issue on this appeal is whether a statement
    of claim improperly naming a trade union as a defendant, contrary to the
Rights
    of Labour Act
, R.S.O. 1990 c. R.33, s. 3(2), may be
    amended after the expiry of the governing limitation period by obtaining a
    representation order to make individual co-defendants, already named,
    representatives of the members of the trade union local.

BACKGROUND

[2]

Pamela Lawrence, the respondent in this appeal,
    was terminated from her employment with the appellant, the International
    Brotherhood of Electrical Workers, Local 773 (Local 773). She brought this
    action for damages for wrongful dismissal, naming Local 773 as defendant. She
    subsequently obtained a consent order adding the individual appellants, all
    directors of Local 773, as defendants, and amended the statement of claim to
    plead that the individual respondents were jointly and severally liable for her
    claim as against Local 773.

[3]

In its statement of defence, Local 773 pleaded
    that as a trade union, it could not be named as a party. It relied on the
Rights
    of Labour Act
, s. 3(2) which provides that:

A trade union shall not be made a party to any
    action in any court unless it may so be made a party irrespective of this Act
    or of the
Labour Relations Act
.

Local 773 reiterated that position in
    its amended statement of defence, filed after the joinder of the individual
    defendants.

[4]

No doubt, at that stage the respondent should
    have taken the required steps to amend the proceedings by way of a
    representation order under r. 12.07. The question this court must now answer is
    whether, in the circumstances of this case, the respondents failure to do so
    prior to the expiration of the limitation period is fatal to her claim as
    against Local 773.

[5]

The action proceeded through the normal discovery,
    mandatory mediation and pre-trial conference phases. Local 773 and the
    individual appellants were all represented by the same counsel. A
    representative of Local 773 was produced and examined for discovery. The action
    was set down for trial. The appellants participated in all of these steps
    without reiterating the objection made in their statement of defence that Local
    773 was not a suable entity.

[6]

After the expiry of the two-year limitation
    period, the appellants moved under r. 21 for an order dismissing the action on
    the ground that Local 773 was not a suable entity. They argued that the only
    way a trade union could be sued was by way of a representation order pursuant
    to r. 12.07, under which the court may authorize one or more individuals to defend
    a proceeding as representatives of the members of the trade union. The
    appellants also argued that the individual defendants were not personally
    answerable for the respondents claim.

[7]

The appellants motion to dismiss the action was
    dismissed: 2015 ONSC 5817. The motion judge ruled that the respondents had
    failed to bring their r. 21.01(1)(b) motion to strike the statement of claim on
    the ground that it discloses no reasonable cause of action in a timely manner.
    They were not precluded by the passage of time from seeking to have the action
    stayed or dismissed pursuant to r. 21.01(3) on the ground that the defendant
    does not have the legal capacity to be sued. However, he refused to grant that
    request as he concluded that the issue of whether the defendant has the legal
    capacity to be sued was unsettled in the jurisprudence and that the matter
    should proceed to trial.

[8]

On that motion, the respondent did not bring a
    cross-motion asking for a representation order but she advanced that request in
    her factum. The motion judge refused to make a representation order in the
    context of the appellants motion and suggested that the prospect of success on
    a motion seeking that relief was doubtful given the limitations issue. The
    appellants motion to the Divisional Court for leave to appeal the dismissal of
    the r. 21 motion was dismissed: 2016 ONSC 497.

[9]

The respondent then brought a successful motion
    pursuant to r. 12.07 for the order that is the subject of this appeal, granting
    her leave to amend her statement of claim to add the individual appellants as
    representatives of all the members of Local 773. The motion judge ruled that
    the order the respondent sought was properly characterized as a motion to
    correct an error in the title of proceedings under r. 5.04(2), which provides
    that:

At any stage of a proceeding the court may by
    order add, delete or substitute a party or correct the name of a party
    incorrectly named, on such terms as are just, unless prejudice would result
    that could not be  compensated for by costs or an adjournment.

[10]

The motion judge rejected the argument that the result of a
    representation order would be to add all of the individual members of Local 773
    as parties to the action, She  found that the union is, by definition, the sum
    of its members (para. 16) and, in this case, the union was already named as a
    defendant. The motion judge also took into account what she described as the
    appellant unions tactical conduct, having participated in the action until
    the limitation period had expired and only then moving to dismiss the action in
    an attempt to avoid a determination of the plaintiffs claim on its merits
    (para. 21).

[11]

The appellants appealed the motion judges
    ruling to this court. The respondent moved to quash this appeal on the ground
    that the order is interlocutory and therefore not within the jurisdiction of
    this court. The panel scheduled to hear the motion to quash on January 20, 2017
    adjourned that motion to this panel on the ground that that the issue of
    whether the order is final or interlocutory was closely related to the merits
    of the appeal.

ISSUES

[12]

The central issue before us is whether the
    motion judge erred by making a representation order authorizing the individual
    defendants to defend the proceeding as representatives of all the members of
    Local 773 after the expiry of the limitation period.

ANALYSIS

[13]

With respect to the motion to quash, given the
    earlier panels decision, the parties proceeded on the basis that they were to
    address the merits of the appeal in any event. I add that it appears to me that
    as the appellants were faced with an order that removed a substantive defence,
    they were entitled to treat is as a final order for the purposes of appeal:
Ball
    v. Donais
(1993), 13 O.R. (3d) 322 (C.A.).

[14]

The appellants argument that the motion judge
    erred in making a representation order rests upon two propositions. First, they
    say that the claim naming Local 773 was, in law, a nullity or, in other
    words, that it has no legal effect. They argue that, as Local 773 was named as
    a party contrary to the
Rights of Labour Act
,
    there was nothing to amend when the representation order was made. The second
    and related proposition is that the effect of the representation order was to
    add all the members of Local 773 as defendants to the action. That was improper,
    they submit, as the limitation period had expired.

[15]

It is well established that the
Rights
    of Labour Act
precludes a trade union from being named as
    a party and that an action brought in violation of the Act will be struck or
    dismissed:
Nippissing Hotel Ltd. et al. v. Hotel & Restaurant
    Employees & Bartenders International Union et al
.,
    [1963] 2 O.R. 169 (H.C.J.);
Dover Corp. (Canada) Ltd. v. CAW-Canada,
    Local 27
, [1996] O.J. No. 2319 (Gen. Div.);
Active
    Canada Inc. v. Formosa,
[2002] O.J. No. 2551 (S.C.J.);
Burley
    v. O.P.S.E.U.
, [2004] O.J. No. 4431 (S.C.J.)

[16]

The proper way to sue a trade union is to obtain
    a representation order pursuant to r. 12.07, authorizing one or more members of
    the union to defend a proceeding on behalf of all the other members. Rule 12.08
    facilitates a similar procedure by providing that a representative order may be
    made for members of an unincorporated association or trade union to bring a
    proceeding on behalf of all the members where a class action would be unduly
    expensive or inconvenient.

[17]

The appellants rely on two trial level decisions
    where an amendment to a claim by way of obtaining a representation order was
    refused on the ground that the action naming a trade union contrary to the
Rights
    of Labour Act
was a nullity. In
McGhie et
    al. v. Canadian Air Line Flight Attendants Association et al
. (1986), 58 O.R. (2d) 333 (H.C.J.), union members brought an
    application challenging the merger of their union with another union. Both
    unions were named as respondents. Gray J. held that the
Rights of
    Labour Act
applied to applications as well as actions. He
    refused a request for an amendment adding certain individuals as
    representatives of all members of the unions except the applicants on the
    ground that this application is a nullity so that there is nothing before me
    which can be amended (para. 37). In
International Alliance of Stage
    Employees, Local 58 v. Canadian Broadcasting Corporation
,
    [1972] 1 O.R. 161 (H.C.J.), a trade union, named as plaintiff, sought an
    interlocutory injunction. The defendant objected that the trade union was not
    an entity capable of commencing an action and the plaintiff responded with a
    request for an amendment by way of a representation order. Osler J. dealt with
    and dismissed the motion on the merits but also stated that, as the plaintiff
    was not an entity capable of suit, the writ commencing the action was a
    nullity and there was nothing before him that could be amended.

[18]

Neither decision is binding on this court and,
    in my view, the label nullity is inapt in the circumstances of this case for
    three reasons.

[19]

First, Local 773 did not treat the claim against
    it as a nullity. The union retained counsel, filed a statement of defence, and fully
    participated in the discovery process, a mandatory mediation and a pre-trial
    conference. The union did plead that it could not be made a party to the action
    and asked that the claim be dismissed on that account, but the statement of
    defence says nothing about nullity and goes on to plead substantive defences.
    I find it difficult to reconcile Local 773s normal litigation activity on this
    matter over the course of more than two years with its argument that the action
    against it was so seriously flawed as to constitute a nullity.

[20]

In my view, the motion judge correctly took
    Local 773s conduct of the action into account when deciding whether to grant
    the amendment and to make a representation order. I agree with the motion judge
    that Local 773s conduct was a carefully designed tactical ploy to avoid having
    the respondents claim adjudicated on the merits. I see no reason to reward
    that conduct.

[21]

Second, the concept of nullity expressed in the two trial
    decisions to which I have referred is difficult to reconcile with modern
    principles of civil procedure. There may well be proceedings that are so
    irregular as to qualify as nullities but the
Rules of Civil
    Procedure
suggest that those proceedings should be
    confined to a very narrow range. The Rules aim, in the words of r. 1.04(1), to
    secure the just, most expeditious and least expensive determination of every
    civil proceeding on its merits. The courts are directed by r. 2.01(1)(a) to
    grant all necessary amendments or other relief, on such terms as are just, to
    secure the just determination of the real matters in dispute. Treating procedural
    flaws or defects as fatal nullities, incapable of amendment, is inconsistent
    with that approach. As Kerans J.A. put it in
Bridgeland
    Riverside Community Association v. Calgary (City)
(1982)
,
135
    D.L.R. (3d) 724 (Alta. C.A.), at p.
730:

no concept is more sterile than that which says that a
    proceeding is a nullity for failure of compliance with a procedural rule and
    without regard to the effect of the failure.

no defect should vitiate a proceeding unless, as a result of
    it, some real possibility of prejudice to the attacking party is shown, or
    unless the procedure was so dramatically devoid of the appearance of fairness
    that the administration of justice is brought into disrepute.

[22]

Third, there is the question of how we should
    interpret and apply the
Rights of Labour Act
in the contemporary context of the labour relations regime. The respondent
    could not obtain a judgment against Local 773 in the face of the Act, but does
    that mean that we should treat an action naming Local 773 as a defendant as
    something that simply does not exist in law? Can it be that the
Rights
    of Labour Act
, s. 3(2), designed in the 1940s to protect
    unions against employers in the early days of trade unionism, should be rigidly
    interpreted in the modern era to protect a trade union against a claim for
    wrongful dismissal by one of its own employees?

[23]

The judgment of Goudge J.A. in
P.I.P.S.C.
    v. Canada (Attorney General)
(2003), 62 O.R. (3d) 682 (C.A.)
    puts the
Rights of Labour Act
in its proper
    historical context. The Act was passed in 1944, a time when trade unions were
    first emerging as important institutions, and the Act offered some protection
    to trade unions and the fledgling system of labour relations of which they were
    part (para. 17). In the words of the appellants own factum, the Act was
    designed to protect unions from the unforgiving common law, which viewed trade
    unionism as an unlawful combination in restraint of trade. Since that time,
    trade unions and collective bargaining have undergone an extraordinary
    evolution and for unions to be able to properly fulfill the functions now
    expected of them, courts must treat them as juridical entities (
P.I.P.S.C.
, at para. 27).

[24]

In
Berry v. Pulley
, 2002 SCC 40, [2002] 2 S.C.R. 493, the Supreme Court of Canada
    recognized unions as entities which possess a legal personality and which are
    endowed, subject to express legislative provisions to the contrary, with legal
    status to sue and be sued in their own name (paras. 3 and 46). The
s.
    3(2)
remains on the books and it is an express legislative
    provision providing that an Ontario trade union may not be named as a party in
    an Ontario proceeding, although in
P.I.P.S.C.
the
    application of s. 3(2) was narrowly interpreted to permit unions in Ontario that
    derive their status from non-Ontario legislation to be named as parties. In the
    words of Goudge J.A., s. 3(2) is something of an archaic legislative
    provision (
P.I.P.S.C.
, at
para. 15). While
    that does not mean the Act can or should be ignored, it is a factor to be taken
    into account when the court is asked to use another archaic concept, that of
    nullity, to characterize the effect of naming a trade union as a party.
    Irregularity or misnomer, certainly; but nullity, no.

[25]

The appellants place particular reliance on
Pal
    v. Powell
(2009), 303 D.L.R. (4th) 601 (Ont. Div. Ct.). In
    that case, the plaintiff sued several union members for personal injuries
    allegedly sustained during an encounter with a picket line of striking workers.
    After the two-year limitation period had expired, the plaintiff sought a
    representation order pursuant to r. 12.07 to permit the claim to be advanced
    against the individual defendants on behalf of all members of the union. The
    Divisional Court allowed an appeal from the representation order granted by the
    motion judge, holding that the effect of the order was really to add the Union
    because all the members become subject to the results of the action and that
    new parties could not be added after the limitation period had expired (para.
    14).

[26]

In my view,
Pal
is distinguishable on the ground that, in that case, the union was not initially
    named as a defendant. The action proceeded against individual union members and
    it was only after the limitation period expired that an attempt was made to add
    the union by way of a representation order. In the present case, however, the
    union was named as a party from the outset. It was improperly named, no doubt,
    but named nonetheless.

[27]

I agree with the motion judge that, as an unincorporated
    association, a union is the sum of its members. The members of Local 773
    would have known that the respondent intended to name the legal entity that
    they comprised as members. Local 773 possesses a legal personality. It cannot
    be sued in its own name but it can be sued by way of a representation order. I agree
    with the motion judge that the request for a representation order in this case could
    properly be characterized as a request to
correct the name of a party
    incorrectly named within the meaning of r. 5.04(2). While the form of the
    order states that the amendment is to add the individual Defendantsas
    representatives of all members of the DefendantLocal 773, the individual
    defendants were already named and all other members of the union were on notice
    that the respondent intended to sue the entity they collectively comprise. In
    my view, this brings the case squarely within the principle articulated by this
    court in
Lloyd v. Clark
, 2008 ONCA 343, [2008] O.J. No.
    1682, at para. 4:

The case law amply supports the proposition that where there is
    a coincidence between the plaintiffs intention to name a party and the
    intended partys knowledge that it was the intended defendant, an amendment may
    be made despite the passage of the limitation period to correct the
    misdescription or misnomer [citations omitted].

See also
Stechyshyn v.
    Domljanovic,
2015 ONCA 889, 129 O.R. (3d) 236, at para. 20:

The law treats the naming of the correctly named defendant as a
    substitution for the incorrectly named defendant and not the addition of a new
    party or the initiation of the action against the correctly named defendant.

[28]

Here, the respondent intended from the outset to
    name her employer as a defendant.
Local 773 and its
    members knew well before the expiry of the limitation period that the
    respondent had brought an action claiming damages for wrongful dismissal
    against the entity that had been her employer. Both Local 773 and the same individual
    parties named as representatives of the members participated in the action for
    over two years. The action is now ready for trial. No further procedural steps
    would be required as a result of the representation order and the appellants
    would suffer no prejudice as a consequence of the representation order.

[29]

I have now had the benefit of reading the dissenting reasons
    of my colleague Hourigan J.A. and offer the following comments on some of the
    authorities he cites.

[30]

In addition to the cases cited by Local 773 and discussed
    above, my colleague cites
Chapman v. 3M Canada Inc.
, [1995] O.J. No.
    4564 (Gen. Div.), affirmed (1997), 30 C.C.E.L. (3d) 102 (Ont. C.A.) and
Lukings
    v. International Molders and Allied Workers Union, Region #8
(1989), 33 O.A.R. 342 (Div. Ct.)
for the proposition that a
    failure to obtain a representation order necessarily renders any claim against
    a union a nullity. However, neither case uses the term nullity.
Chapman
involved a unionized employee attempting to avoid the exclusive statutory
    arbitration regime governing the claim under which the proceeding in question
    ought to have been brought. Here we have a claim that may be properly brought
    in the Superior Court. In
Lukings
, union employees sued for wrongful dismissal
    naming as defendants individual members as trustees of the employer union. The
    Divisional Court dismissed the action and cited
Wilkes v. Teichmann et al
.,
    (1985), 50 C.P.C. 151 (Ont. C.A.), where this court expressly declined to
    pronounce on the application of the
Rights of Labour Act
to the
    circumstances of that case. In
Wilkes
, this court held that the issue
    should be determined after a trial on the evidence and upon considering the
    scope of s. 3(2) of the
Rights of Labour Act
especially in relation to
    matters other than those pertaining to union-employer relations (p. 153).

[31]

Hourigan J.A. also cites cases involving the notice
    requirement found in the
Proceedings Against the Crown Act
, R.S.O.
    1990, c. P.27. I note that this court has expressly declined to adopt the
    strict approach advocated by my colleague to the interpretation of that
    requirement. In both
Mattick Estate v. Ontario (Minister of Health)
(2001),
    52 O.R. (3d) 221 (C.A.), at para. 14, and
Miguna v. Ontario (Attorney
    General)
(2005), 262 D.L.R. (4th) 222 (Ont. C.A.), this court took a
    purposive approach to the notice requirement and allowed the claims to proceed
    despite arguably inadequate notice, on the basis that there was no prejudice to
    the Crown. In
Toronto v. Longbranch Child Care
, 2011 ONSC 548, [2011]
    O.J. No. 738, the claim was struck by the Superior Court of Justice as a
    nullity for failure to give notice to the Crown. However, in that case, before
    filing a statement of defence, the Crown moved to strike the claim under r. 21,
    conduct consistent with the position that the action was a nullity.

[32]

My colleague also cites case law on the need to avoid
    uncertainty with respect to the limitation of actions. On that point, I note
    that in
Markel Insurance Company of Canada v. ING Insurance Company of
    Canada
, 2012 ONCA 218, (2012) 109 O.R. (3d) 652,

the principle of
    certainty with respect to discoverability under the
Limitations Act, 2002
,
    S.O. 2002, c. 24, Sch. B was invoked by this court in precisely the context of
    preventing a party from engaging in tactical litigation strategies like that of
    Local 773 designed to undermine another partys substantive rights.

DISPOSITION

[33]

I would dismiss motion to quash and the appeal
    with costs to the respondent fixed in the amount agreed to by the parties,
    $12,000 inclusive of disbursements and taxes.

Robert J. Sharpe
    J.A.

I agree. P. Lauwers
    J.A.

Hourigan J.A. (Dissenting):

[34]

I have had the opportunity to
    consider the reasons of my colleagues. I am unable to agree with their analysis
    or their disposition of the appeal.

[35]

Section 3(2) of the
Rights
    of Labour Act
, R.S.O. 1990, c. R.33 (the
    Act) provides:

A trade union shall not be made a
    party to any action in any court unless it may be so made a party irrespective
    of this Act or of the
Labour Relations Act
.

[36]

There are certain indisputable
    legal principles relevant to this appeal that bear repeating. First among them
    is that with the enactment of s. 3(2) of the Act in 1944, the only way to
    commence a civil proceeding against an Ontario union is to obtain a
    representation order. An action brought against a union without the benefit of
    a representation order is a nullity:
Re McGhie et al. and Canadian
    Air Line Flight Attendants Association et al.
(1987), 58 O.R. (2d) 333 (H.C.), at pp. 340-342. Such an action will be
    struck or dismissed:
Nippising Hotel Ltd. et al. v. Hotel &
    Restaurant Employees & Bartenders International Union et al.
, [1963] 2 O.R. 169 (H.C.J.), at pp. 170-176;
Lukings
    v. International Molders and Allied Workers Union, Region # 8
(1989), 33 O.A.C. 352 (Div. Ct.), at paras. 4-18; and
Chapman
    v. 3M Canada Inc
., [1995] O.J. No. 4564
    (Gen. Div.), at paras. 57-60, affd, (1997), 30 C.C.E.L. (3d) 102 (Ont. C.A.).

[37]

Second, in the seminal case of
Berry
    v. Pulley
, 2002 SCC 40, [2002] 2 S.C.R.
    493, the Supreme Court of Canada determined that trade unions have the capacity
    to sue or to be sued. See also
Fullowka v. Pinkertons of Canada
    Ltd.
, 2010 SCC 5, [2010] 1 S.C.R. 132, at
    para. 118. However, this capacity only exists absent express legislative
    provisions to the contrary:
Berry
, at para. 46.

[38]

Third, s. 3(2) of the Act is an
    express legislative provision to the contrary. Accordingly,
Berry
did not change the law with respect to suing Ontario
    unions, and a representation order under r. 12.07 of the
Rules of
    Civil Procedure
, R.R.O. 1990, Reg. 184, is
    still required:
Guilbeault v. Cornellier
, [2002] O.J. No. 4415 (S.C.), at para. 3;
Active Canada Inc.
    v. Formosa
, [2002] O.J. No. 2551 (S.C.), at
    para. 49; and
Burley v. Ontario Public Service Employees Union
, [2004] O.J. No. 4431 (S.C.), at para. 51. In
Pal
    v. Powell
(2009), 303 D.L.R. (4th) 601, at
    para. 11 (Ont. Div. Ct.), the Divisional Court stated:

The purpose of the Representation
    Order under Rule 12.07 in this case is to bind all members of the Union to any
    finding of liability against the representational defendants. Practically
    speaking, that is the only way a Union can be sued in Ontario. Each member of
    the Union becomes bound by any judgment in the action.

[39]

In
Professional
    Institute of the Public Service of Canada v. Canada (Attorney General)
(2002), 62 O.R. (3d) 682 (C.A.) (
P.I.P.S.C.
)
, at para. 45,
    Goudge J.A. expressed the view in
obiter
that there is a need for legislative reform in this area. However, he
    did not challenge the notion that s. 3(2) does not permit a suit against an
    Ontario trade union without a representation order.

[40]

Thus, the law in Ontario has been
    clear for over seventy years that without a representation order a union cannot
    be sued. In this case, the respondent did not obtain such an order

before the limitation period expired. For that reason,
    by operation of s. 3(2) of the Act, no suit could be brought against
the International Brotherhood of Electrical
    Workers, Local 773 (Local 773)
within
    the limitation period. The motion judge was obliged to strike the statement of
    claim as against local 773.

[41]

I am not persuaded by the
    arguments proffered by the majority that there is any principled basis to
    conclude that this case should not be subject to the well-established rule
    prohibiting suits against unions absent a representation order. I will now
    consider each of the arguments supporting the majoritys decision.

[42]

The majority view the concept of
    nullity as being difficult to reconcile with modern principles of civil
    procedure. However, the concept of an action being a nullity if it is brought
    in violation of a statutory requirement is not at all foreign to contemporary
    Ontario law. To take one example, s. 7(1) of the
Proceedings Against
    the Crown Act
, R.S.O. 1990, c. P.2,
    prohibits a claim from being commenced against the Crown unless the claimant
    has given notice to the Crown at least sixty days before commencing the claim.
    This court has held that failure to comply with this section renders the
    action a
nullity
:
Mattick Estate v. Ontario (Minister of
    Health)
(2001), 52 O.R. (3d) 221 (C.A.), at
    para. 21 (emphasis added). See also
Miguna v. Ontario (Attorney
    General)
(2005), 262 D.L.R. (4th) 222 (Ont.
    C.A.), at paras. 7-8; and
Toronto (City) v. Longbranch Child Care
, 2011 ONSC 548, at para. 38. Although courts have
    been flexible in defining what a claimant against the Crown must do to give
    adequate notice under s. 7(1), where notice is inadequate courts continue to
    treat the concept of a claim against the Crown being a nullity as a viable and
    legally legitimate one.

[43]

Relying on r. 2.01 of the
Rules
    of Civil Procedure
and the Alberta Court of
    Appeals decision in
Bridgeland Riverside Community Association v.
    Calgary (City
) (1982),
135 D.L.R. (3d) 724 (Alta. C.A.),
the majority asserts that
treating procedural flaws or defects as fatal
    nullities, incapable of amendment, is

inconsistent with the
    courts obligation to secure the just determination of the matters in dispute
.

[44]

This conclusion ignores the
    critical fact that
the respondents
    failure to obtain a representation order in time was
not a mere procedural defect or flaw.
The need for a representation order is a substantive
statutory requirement
; without one, s. 3(2) expressly bars suits against unions.
The requirement may be cumbersome, and it has been
    subject to criticism
(
see, for example,
P.I.P.S.C.
, at para. 45; and

Kiewning v. Communications, Energy and Paperworkers Union of
    Canada
, 2011 ONSC 712, at para. 32
),
but that does
    not
undermine
its validity.

[45]

The majoritys reliance
on r. 2.01 is also misplaced. That sub-rule is
    limited to situations where there has been non-compliance with
Rules
    of Civil Procedure
. It cannot operate to
    excuse non-compliance with a
statute
.

[46]

Both the reasons of the majority
    and the endorsement of the motion judge are also critical of the appellants
    conduct in this case. The majority finds that Local 773 has engaged in a carefully
    designed tactical ploy to avoid having the respondents claim adjudicated on
    the merits.

[47]

It is important at this stage to
    review the chronology. The respondent sued Local 773 and in its statement of
    defence Local 773 pleaded and relied upon the Act. Instead of moving for a
    representation order so as to avoid the operation of the Act, the respondent
    brought a motion for an
order
    amending her statement of claim to add the individual appellants as defendants.

[48]

Thus, once the respondent was
    served with Local 773s statement of defence, she was put on notice of her
    failure to comply with the Act. This was approximately twenty months before the
    limitation period expired. The respondent subsequently took an incorrect step
    in an attempt to remedy her non-compliance with the Act. At some point in
    litigation, a party must live with the consequences of their action or
    non-action.

[49]

In any event, the alleged desire
    of the appellants to avoid a determination on the merits is hardly unique to
    this case. Sometimes parties exploit advantages that the law offers them in a manner
    that may offend our sense of fairness. Sometimes the application of the law
    leads to harsh results. But that does not mean that courts can disregard the
    will of the legislature and ignore a clear statutory requirement on the basis
    that its application would appear to be unfair.

[50]

The decision of the motion judge
    and the reasons of my colleagues inject a degree of uncertainty into the law.
    As a result of the majoritys decision, the statutory requirement for a
    representative order is no longer absolute, but dependent on the equities and
    circumstances of any given case. This court has stated that uncertainty is
    particularly unacceptable when it comes to the law of limitation of actions:
Markel
    Insurance Co. of Canada v. ING Insurance Co. of Canada
, 2012 ONCA 218, 109 O.R. (3d) 652, at para. 34.

[51]

Worse, the method chosen to
    achieve that result is ill-suited for its purpose. The motion judge
found that the order the respondent sought
    was properly characterized as a motion to correct an error in the title of
    proceedings under r. 5.04(2). In my view, she erred in so finding
. This is not a misnomer case, as there is no question
    that Local 773 was correctly named. This is a case where there has been
    non-compliance with a statutory requirement and a new party has been added. One
    need only look to the form of the order granted by the motion judge. She did
    not make an order under r. 5.04(2); rather she made a representation order.

[52]

Finally, the reasons of the majority
    raise the issue of how s. 3(2) of the Act should be applied
in the contemporary context of the labour
    relations regime.
The majority take the
    position that legislation enacted in the 1940s for the protection of trade
    unions should not serve to bar an employees wrongful dismissal suit in the
    present case. They reason that the law is archaic and that this fact should be
    borne in mind when considering whether the respondents action is a nullity.

[53]

I disagree with that analysis. It
    is not open to courts to ignore legislation on the basis that they feel it is
    outmoded or archaic. Such an approach is contrary to the basic rules of our
    parliamentary democracy because it usurps the legislative role of government.
    This, of course, is a role for which courts are untrained and unaccountable.
    This court expressed a desire for legislative reform of s. 3(2) of the Act in
P.I.P.S.C.
; it does not have the authority to make the desired
    change itself by declining to apply the provision.

[54]

The majority also reasons that because
    s. 3(2) is, in their view, archaic, that is a factor that can be taken into
    account in the analysis of whether
the respondents claim is a nullity. I disagree. Subsection 3(2) is not a
    mere factor to be balanced against others; it either applies or it does not. If
    it applies, and under the current state of law there is no doubt that it does,
    then that ends the analysis.

[55]

For
    these reasons, I would allow the appeal and strike the respondents statement
    of claim.

Released:
RJS APR 20
    2017

C.W. Hourigan
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Lochner v. Callanan, 2017 ONCA 283

DATE: 20170406

DOCKET: C62498 and C62704

Rouleau, Pepall and Roberts JJ.A.

BETWEEN

Lina Lochner, Paul Lochner
and George
    Lochner
by his litigation guardian  Public Guardian and Trustee

Plaintiffs (
Appellants
)

and

PC
    Gordon Callanan, Sgt Mark Armstrong, PC Domenic Bruzzese,
PC David Bragg, PC William Shikatani, PC Gissa Waters,
PC Stephen Carmichael and Toronto Police Services Board

Defendants (
Respondents in Appeal
)

Lina Lochner and Paul Lochner, acting in person

Walter Kim, for the Public Guardian and Trustee

Laura Day, for the respondents

Heard: March 23, 2017

On appeal from the orders of Justice Robert Goldstein of
    the Superior Court of Justice, dated July 8, 2016 and September 13, 2016.

ENDORSEMENT

[1]

The appellants appeal the two orders of the motions judge and bring a
    motion to introduce fresh evidence on appeal.

[2]

These proceedings arise out of an altercation between the appellants,
    George Lochner, and the police, during which George Lochner was tasered by the
    police. The appellants and George Lochner brought an action for damages against
    the police. The appellants claims were dismissed when they failed to attend at
    the trial of their action.

[3]

George Lochner is a person under a disability. The Public Guardian and
    Trustee is his litigation guardian in the proceedings arising from his
    altercation with the police. The proposed settlement of George Lochners claim
    received court approval by order of Justice D. Wilson (the settlement approval
    judge) on March 9, 2016 (the settlement order).

[4]

The appellants take issue with the settlement of George Lochners
    claim.  They brought a motion to set aside the settlement order under r. 37.14,
    and then brought another motion to set aside that order, this time relying on
    r. 39.01(6).  Both motions were dismissed. The motions judge also ordered that
    they were prohibited from filing any further motions in the Superior Court
    absent leave. They appeal from each of the orders.

[5]

With respect to the dismissal of their r. 37.14 motion, the appellants
    submit that the motions judge erred in determining that they had no standing to
    bring that motion.

[6]

We disagree. Although the Public Guardian and Trustee provided the
    appellants with a copy of the notice of motion to approve the settlement as a
    courtesy, neither of the appellants was a party or other person who was
    affected by the order within the meaning contemplated by r. 37.14(1). To have
    standing to challenge the settlement order, the appellants had to demonstrate
    that their proprietary or economic interests were affected by the order:
Ivandaeva
    Total Image Salon Inc. v. Hlembizky
(2003), 63 O.R. (3d) 769 (C.A.). They
    failed to meet this burden. The motions judge determined that there was no
    evidence that the appellants interests were affected by the settlement order. We
    see no error in the motions judges finding, which is entitled to deference on
    appeal.

[7]

With respect to the appellants r. 39.01(6) motion, the appellants submit
    that the motions judge erred in dismissing their motion as an abuse of process
    and in ordering that they bring no further motions without leave of the court. The
    appellants maintain that the Public Guardian and Trustee failed to make full
    disclosure before the settlement approval judge.

[8]

We disagree. The motions judge correctly concluded that the appellants
    were attempting to re-assert their challenge to the settlement order and to re-litigate
    the same issue of standing that was the subject of their first motion, and that
    their second motion was therefore an abuse of process. Further, there is no
    basis for the argument that full disclosure was not made. The appellants were
    given the opportunity to make their views known to the settlement approval
    judge and the Public Guardian and Trustee filed a supplementary motion record
    which included the appellants arguments and objections to the settlements, and
    documents that they said were relevant. Finally, there was no error in the
    exercise of the motions judges discretion, based on the record before him, to
    make the order that the appellants bring no further motions without leave.

[9]

Lastly, the appellants proposed fresh evidence consists of the opinion
    of Liam Hendrikse concerning George Lochners taser injuries. This evidence
    relates to the question of George Lochners damages and has nothing to do with
    the issue of the appellants standing to challenge the settlement order. As a
    result, we would not admit this evidence because it could not possibly have
    affected the outcome of the motions to set aside the settlement order. It fails
    to meet the test for admission of fresh evidence. See
R. v. Palmer
, [1980]
    1 S.C.R. 759.  The motion for admission of fresh evidence is therefore
    dismissed.

[10]

For these reasons, the appeals are dismissed.

[11]

The appellants shall pay $3,000 in costs as follows: $750 to the Public
    Guardian and Trustee for each motion, for a total of $1,500, and $750 to the
    respondents for each motion, for a total of $1,500, for their partial indemnity
    costs of both appeals, inclusive of disbursements and taxes.

Paul Rouleau J.A.

S.E. Pepall J.A.

L.B. Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: McMurtry v. McMurtry, 2017 ONCA 296

DATE: 20170412

DOCKET: C62204

LaForme, Pepall and Pardu JJ.A.

BETWEEN

Mildred McMurtry

Plaintiff (Respondent)

and

John
    McMurtry
and
Mic Mac Realty
    (Ottawa) Ltd.

Defendants (
Appellant
)

AND BETWEEN

John McMurtry

Plaintiff

and

Jim
    McMurtry

Defendant

AND BETWEEN

Jim McMurtry

Plaintiff by Counterclaim

and

John
    McMurtry
, Brenda McMurtry, Barry Coons, Bouris Wilson
    LLP and Mic Mac Realty (Ottawa)

Defendants by Counterclaim

Jeff G. Saikaley, for the appellant

Mark W. Smith, for the respondent

Heard: February 21, 2017

On appeal from the judgment of Justice Sylvia Corthorn of
    the Superior Court of Justice, dated April 29, 2016, with reasons reported at
    2016 ONSC 2853.

ENDORSEMENT

[1]

This case involves a dispute concerning the control of a family company,
    Mic Mac Realty (Ottawa) Ltd. (MMR).

[2]

Mildred McMurtry and Keith McMurtry were married and had six children.
    After buying out his co-founder, Keith McMurtry was the sole owner of MMR. Out
    of a total of 22 shares, he gave four shares to each of his three sons, John
    (the appellant), Jim and Michael. Keith retained the remaining ten shares.

[3]

After Michael died in 1983, Jim and John each received half of Michaels
    shares; each then had six shares as of August 1984.

[4]

Keith died in 1998. Under his will, Mildred was the residuary
    beneficiary of Keiths estate. The will made no mention of Keiths ten shares
    (the Disputed Shares).

[5]

Mildred and John each claim ownership of the Disputed Shares. Mildred
    claims they are hers as the residuary beneficiary of her husbands estate. John
    claims that his father gifted the shares to him before he died.

[6]

The dispute over the shares has given rise to two actions. In 2011, John
    brought an action against Jim, seeking a declaration of ownership of the
    Disputed Shares and various oppression remedies. In response, Jim filed a
    defence and a counterclaim against various parties including John and his wife
    Brenda. His pleading asserts that he and John each own six shares and Mildred
    owns ten shares of MMR. In 2012, Mildred sued John, seeking a declaration of
    ownership of the Disputed Shares. She is also seeking an oppression remedy and
    related relief. The trial judge is presiding over both Johns and Mildreds
    actions.

[7]

A case management master ordered that Mildreds action be tried first. Before
    her trial began, the parties agreed that the only aspect of the claims made on
    behalf of Mildred to be decided at this stage was the request for declaratory
    relief with respect to ownership of the Disputed Shares. That determination was
    to be binding on the parties to the companion action. In essence, the matter
    proceeded as a trial of the issue of share ownership.

[8]

This issue was tried over eight days. John argued that Keith had given
    him the Disputed Shares
inter vivos
, or had an intention to give the
    Disputed Shares to John that persisted until Keiths death, and his executors
    had subsequently completed the gift. He also submitted that Mildreds claim for
    a declaration was statute barred.

[9]

The trial judge ruled that there had been no gift to John. In addition,
    Mildreds claim to the declaration of ownership was not statute barred.
    Accordingly, Mildred was the beneficial owner of the Disputed Shares as the
    residuary beneficiary of Keiths estate. The trial judge went on to hold that
    because of certain statements made by Mildred, she held the shares in a
    constructive trust for John.
[1]

[10]

John appeals from the April 29, 2016 judgment declaring that Mildred is
    the beneficial owner of the shares. He does not raise the constructive trust
    issue that is also the subject matter of that judgment and Mildred does not
    advance any cross-appeal of that portion of the judgment.

[11]

In light of the unusual procedure agreed to by the parties and their
    positions, we are addressing the appeal of the April 29, 2016 judgment in the
    absence of any additional judgment.

Analysis

[12]

We see no reason for this court to interfere with the trial judges conclusion
    that the Disputed Shares were not gifted to John.

[13]

On our review of the record, including the trial transcripts, the trial
    judges finding that there was insufficient evidence of a gift is entirely
    reasonable. For instance, the Declaration of Transmission that John executed
    on December 15, 1999 stated that the Disputed Shares remained vested in Keiths
    estate as of that date and that John was the beneficiar[y] properly entitled
    by law to receive the shares. The trial judge found that the declaration was
    intended to identify John as the beneficiary of the Disputed Shares pursuant to
    the will and not the owner by virtue of an
inter vivos
gift.  Since
    John knew the contents of the will, he swore a document he knew to be untrue,
    which hurt his credibility.

[14]

It follows from the finding that the Disputed Shares were not gifted to
    John that Mildred became the beneficial owner of the shares as the residuary
    beneficiary under the terms of the will.

[15]

John also submits the trial judge erred in finding that Mildreds claim
    was not statute barred. In our view, for the purposes of the trial of the issue
    of share ownership, it was unnecessary for Mildred to seek a formal declaration
    of ownership and as such, the limitation period was not relevant.

[16]

In the circumstances, what was necessary was a factual determination as
    to whether the Disputed Shares had been gifted to John. A factual determination
    that the shares were not gifted (and the legal conclusion flowing from that
    determination that the shares thus fell into the residue of the estate making
    Mildred the beneficial owner under the terms of the will) would have been
    sufficient to establish Mildreds status as a shareholder for the purposes of
    any action against John.

[17]

In essence, a declaration was not required. Declaration or no
    declaration the finding of no gift is now
res judicata
and binding in
    any further proceedings.

[18]

That said, it has yet to be decided whether Mildreds other claims are
    statue barred. As noted, the parties agreed that the only issue to be decided
    at this stage was the claim for declaratory relief. Whether Mildreds other
    claims are statute barred remains to be decided.

Disposition

[19]

The appeal is dismissed. Mildred is awarded her costs of the appeal in
    the amount of $12,000 inclusive of disbursements and HST as agreed to by the
    parties.

H.S.
    LaForme J.A.

"S.E. Pepall
    J.A."

G. Pardu J.A.

[1]
On its face, the trial judges formal judgment appears contradictory. She
    declares that Mildred is the beneficial owner of the Disputed Shares and she
    declares that Mildred has held them in a constructive trust for John since
    January 1999. However, the parties say that the trial judge will subsequently
    determine whether all, or only part of, the shares are held in constructive
    trust.