COURT OF APPEAL FOR ONTARIO

CITATION: Romania v. Boros, 2020 ONCA 216

DATE: 20200320

DOCKET: C66606

Strathy C.J.O., Miller
    and Trotter JJ.A.

BETWEEN

The Minister of Justice and the Attorney General of
    Canada on Behalf of Romania

Respondent

and

Clara Eva Boros

Applicant

Julianna A. Greenspan and Brad Greenshields, for the applicant

Adrienne Rice, for the respondent

Heard: March 4, 2020

On judicial review of the decision
    of the Hon. David Lametti, ordering the applicants surrender, dated February
    19, 2019.

REASONS FOR DECISION

Introduction

[1]

Romania seeks the extradition of Clara Eva Boros for fraud and forgery
    offences allegedly committed between 1993 to 1998.

[2]

Ms. Boros was committed for extradition on April 21, 2017. The Minister
    of Justice (the Minister) signed a surrender order on February 19, 2019. The
    applicant applies for judicial review of the Ministers order under s. 57 of
    the
Extradition Act
, S.C. 1999, c. 18. For the following reasons, we allow
    the application and remit the case back to the Minister for further
    consideration.

Background

[3]

Ms. Boros, a Romanian citizen at the time, was charged with offences
    related to embezzlement and forgery in the course of her employment. It was
    alleged that she committed these offences between 1993 and 1998, resulting in
    losses to her employer of roughly CAD $100,000 at the time (estimated to be
    approximately $217,000 today).

[4]

Ms. Boros was employed as a cashier and was responsible for making
    deposits on behalf of her employer into a corporate bank account. It is alleged
    that she falsified documents (i.e., deposit slips and company ledgers), enabling
    her to skim off some of the money that ought to have been deposited to the
    credit of her employer. The employer claims that it had to obtain an
    interest-bearing loan to cope with the loss and that there has been no
    recovery.

[5]

In the Authority to Proceed (ATP), issued under s. 15 of the
Extradition
    Act
, the Minister lists the Canadian offences corresponding to the alleged
    Romanian offences as fraud (
Criminal Code
, R.S.C. 1985, c. C-46, s.
    380) and forgery (s. 368(1)).

[6]

Ms. Boros arrived in Canada on September 24, 1998 and sought refugee
    status, which was granted on October 26, 1999. She obtained permanent resident
    status on December 27, 2000, and Canadian citizenship on August 15, 2005. Ms.
    Boros is currently 54 years old, married, and has three children.

[7]

The applicant was tried and convicted
in absentia
in Romania on
    January 10, 2000. On the same day she was sentenced to 10 years imprisonment,
    fined, and ordered to pay restitution. Her appeal from sentence was dismissed
    on April 13, 2000. As the extradition judge observed in her Reasons for
    Judgment (
Romania v. Boros
, 2017 ONSC 1656), at para. 10, Ms. Boros
    was represented by counsel throughout the proceedings in Romania. However, she
    also notes that Ms. Boros denied being properly summoned. Documentation from
    the Romanian court states that Ms. Boros was legally summoned and has failed
    to appear in court, as she has been absconding from both prosecution and from
    trial.

[8]

There is a serious dispute as to when the Romanian authorities became
    aware that Ms. Boros was in Canada. Ms. Boros takes the position that, by
    virtue of a September 23, 1998 police statement given by a manager of the applicants
    former employer (Ola Ioan), Romanian authorities were aware that she was in
    Canada at that time. In that statement Ms. Ioan said: from unofficial sources
    the cashier Boros Clara is assumed to be in Canada attempting to abscond from
    the offence committed. In fact, Ms. Boros arrived in Canada the very next day,
    on September 24, 1998. The respondent asserts that Romania only learned of Ms.
    Boros whereabouts as a result of receiving an August 11, 2008 Interpol
    notification.

The Extradition Hearing

[9]

On December 4, 2008, the Minister of Justice received provisional
    materials from Romania seeking Ms. Boros extradition. An ATP was issued on May
    13, 2015. An
ex parte
summons was not served on Ms. Boros until November
    16, 2016. This was roughly 18 months after the issuance of the ATP, and almost
    eight years after Romanias request.

[10]

In
    thorough reasons, the extradition judge concluded, at paras. 34-36, that there
    was sufficient evidence to establish a
prima facie
case that the extradition
    crimes listed in the ATP were committed: see
Extradition Act
, s.
    29(1)(a). The extradition judge considered other arguments advanced by Ms.
    Boros, including whether a stay should be granted for an abuse of process
    because of the delay in seeking her extradition. The extradition judge declined
    to stay the committal order on this basis. As she said, at para. 60:

As the cases above demonstrate, a lengthy delay on the part of
    a foreign government, without any impact on the fairness of the extradition
    hearing, does not constitute an abuse of process warranting a stay of
    proceedings. This is so even when the requesting state is aware of the
    whereabouts of the person sought, and the person was convicted and sentenced
in
    absentia
.

While I am sympathetic to the respondents predicament of being
    sought for extradition years after having settled in Canada, I find that the
    respondent has not demonstrated a negative impact on the fairness of the
    extradition hearing.

[11]

Ms.
    Boros was ordered committed for extradition. She has not appealed this order.

The Decision to Surrender Ms. Boros

[12]

Since
    her committal, Ms. Boros has made numerous submissions to successive Ministers
    of Justice, requesting that they exercise their discretion not to order her
    surrender. These submissions have variously related to the following issues: the
    delay by Romania and Canada in the extradition process; Ms. Boros personal
    circumstances; poor Romanian prison conditions; Ms. Boros medical conditions
    that require ongoing treatment; Ms. Boros Hungarian-Roma minority status that
    is said to attract persecution in Romania; the stark disparity between Romanian
    and Canadian sentences; and the lack of integrity of the
in absentia
trial and sentencing proceedings in Romania.

[13]

In
    a lengthy letter (20 pages), the Minister rejected each of these claims and
    provided reasons. Based on his conclusions, the Minister determined that it
    would be appropriate to surrender Ms. Boros for extradition. In terms of the
    delay occasioned in the proceedings, the Minister said, in my view, this is
    not one of those clearest of cases where the overall delay was occasioned by,
    or constitutes, conduct that is so offensive to notions of fair play and
    decency that surrender would undermine the extradition process. Referencing
    the language of s. 44(1)(a) of the
Extradition Act
, the Minister concluded
    that the applicants surrender would not be unjust or oppressive; with regard
    to the
Charter
, it would not shock the conscience of Canadians or
    unjustifiably violate the principles of fundamental justice.

[14]

The
    Minister ordered that Ms. Boros be surrendered.

The Arguments on the Judicial Review Application

[15]

Ms.
    Boros submits that the Minister exercised his discretion unreasonably in
    concluding surrender would not be unjust or oppressive (
Extradition Act
,
    s. 44(1)(a)) and contrary to s. 7 of the
Charter
, having regard to the
    15-year delay between the
in absentia
foreign proceedings and the
    Authority to Proceed. This submission encompasses both the time it took
    Romanian authorities to request Ms. Boros extradition (8 years from when the
    offences were discovered), as well as Canadas delay in issuing an ATP (7 years
    after Ms. Boros extradition was requested by Romania). Ms. Boros also relies
    on the additional 18 months that elapsed between the issuance of the ATP and
    the summons.

[16]

Ms.
    Boros submits that, in relation to the delay in Romania, the Minister failed to
    make appropriate inquiries of Romanian officials to properly resolve the conflicting
    evidence concerning when Romania first became aware that she was in Canada. With
    respect to Canadas delay, Ms. Boros contends that this lengthy time period is
    not properly accounted for and the manner in which the Minister addressed the
    issue lacks transparency.

[17]

The
    respondent submits that there was no untoward delay on the part of the Romanian
    government. It acted promptly after learning of Ms. Boros location upon
    receiving the August 11, 2008 Interpol notification. Moreover, it takes the
    position that the delay at the Canadian end was not unreasonable, and certainly
    not sufficient to prevent the applicants extradition.

Analysis

[18]

On
    an application for judicial review under the
Extradition Act
, the
    Ministers surrender decisions are to be afforded substantial deference and
    assessed on a standard of reasonableness. In
Lake v. Canada (Minister of
    Justice)
, 2008 SCC 23, [2013] 1 S.C.R. 761, LeBel J. described the
    applicable standard, at para. 41:

Reasonableness does not require blind submission to the
    Ministers assessment; however, the standard does entail more than one possible
    conclusion. The reviewing courts role is not to re-assess the relevant factors
    and substitute its own view.
Rather, the court must determine whether the
    Ministers decision falls within a range of reasonable outcomes. To apply this
    standard in the extradition context, a court must ask whether the Minister
    considered the relevant facts and reached a defensible conclusion based on
    those facts.
[Emphasis added.]

Moreover, in conducting this type of review, this court
    must acknowledge the Ministers superior expertise in Canadas international
    relations and foreign affairs: see
India v. Badesha
, 2017 SCC 44,
    [2017] 2 S.C.R. 127, at para. 39.

[19]

In
    its recent decision in
Canada (Minister of Citizenship and Immigration v.
    Vavilov
, 2019 SCC 65, the Supreme Court considered the nature of the
    reasonableness standard of review. As part of its analysis, the majority
    addressed transparency in decision-making and its place within a reasonableness
    review framework. As the majority said, at paras. 13, 15, and 95 of its
    reasons:

Reasonableness review is an approach meant to ensure that
    courts intervene in administrative matters only where it is truly necessary to
    do so in order to safeguard the legality, rationality and fairness of the
    administrative process. It finds its starting point in the principle of
    judicial restraint and demonstrates a respect for the distinct role of
    administrative decision makers.
However, it is not a rubber-stamping
    process or a means of sheltering administrative decision makers from
    accountability. It remains a robust form of review.

. . .

In conducting a reasonableness review, a court must consider
    the outcome of the administrative decision in light of its underlying rationale
    in order to ensure that the decision as a whole is transparent, intelligible
    and justified.
What distinguishes reasonableness review from correctness
    review is that the court conducting a reasonableness review must focus on the
    decision the administrative decision maker actually made, including the
    justification offered for it, and not on the conclusion the court itself would
    have reached in the administrative decision makers place.

That being said, reviewing courts must keep in mind the
    principle that the exercise of public power must be justified, intelligible and
    transparent, not in the abstract, but to the individuals subject to it
. It
    would therefore be unacceptable for an administrative decision maker to provide
    an affected party formal reasons that fail to justify its decision, but
    nevertheless expect that its decision would be upheld on the basis of internal
    records that were not available to that party. [Emphasis added.]

We return to the issue of transparency below when evaluating
    the Ministers response to claims of unreasonable delay by the Romanian
    authorities, and the delay in Canada.

[20]

As
    a preliminary matter, it is clear that s. 11(b) of the
Charter
has no
    direct application to extradition proceedings. However, delay is among the
    relevant factors the Minister may take into account under s. 44(1)(a) of the
Extradition
    Act
: see
United States of America v. Cavan
, 2015 ONCA 664, 329
    C.C.C. (3d) 485, at para. 46. In order to foreclose surrender, the delay must
    amount to an abuse of process: see
Argentina v. Mellino
, [1987] 1
    S.C.R. 536, at pp. 547-548;
United States of America v. Allard
, [1987]
    1 S.C.R. 564, at p. 571.

[21]

In
    his letter of February 19, 2019, the Minister acknowledged that delay in
    seeking extradition is a relevant factor. The Minister wrote: I have reviewed
    the delay in seeking Ms. Boros extradition and conclude that it does not
    constitute an abuse of process.

[22]

The
    Minister referenced the conflicting evidence as to when the Romanian
    authorities knew that the applicant was in Canada. He considered the police
    statement given by Ms. Boros former manager on September 23, 1998. The
    Minister wrote:

The Romanian authorities were clearly aware of Ms. Boros
    residence in Canada as of 2008. The evidence presented in the ROC is
    unequivocal on that point.
The brief speculation of Ms. Ioan in her
    statement to police investigators in 1998 is not evidence that the government
    of Romania had knowledge of Ms. Boros residence in Canada.

There is no other evidence to suggest that Romania was aware of
    Ms. Boros location before 2008. [Emphasis added.]

[23]

This
    passage conveys two ideas. First, Ms. Ioans statement amounted to mere
    speculation about Ms. Boros whereabouts. Second, even though Ms. Ioans
    statement was given to a police officer investigating criminal offences, it was
    not evidence that the government of Romania knew of her whereabouts.

[24]

We
    accept Ms. Greenspans submission that the Minister acted unreasonably in purporting
    to resolve this issue without making inquiries of Romanian officials concerning
    knowledge of Ms. Boros whereabouts. It was never properly explained why Ms.
    Ioans statement to the police was not some evidence that, as early as September
    23, 1998, Romanian officials had knowledge that Ms. Boros had travelled to
    Canada.

[25]

Given
    Ms. Ioans said that she assumed that Ms. Boros was in Canada, it was not
    unfair to characterize this information as speculative in nature. Ms. Rice for
    the Respondent also argues that Ms. Ioans statement was inaccurate because Ms.
    Boros was not in Canada at the time. That is true  Ms. Boros did not land in
    Canada until the next day. While the statement was technically inaccurate, it
    was remarkably prescient.

[26]

There
    is no indication that Romanian authorities took any steps to follow up on this
    information. While it would appear that the Interpol notification in 2008
    prompted the Romanian government to make its extradition request a few months
    later, this does not speak to the question of whether any efforts were made to
    follow up on the very helpful Ioan statement, made 10 years earlier. More
    importantly, the Minister appears to have made no inquiries on this issue. This
    type of information could not reasonably be obtained by Ms. Boros. Out of fairness
    to Ms. Boros, and the integrity of the process, it is incumbent upon the
    Minister to make inquiries and get to the bottom of this troubling issue.

[27]

In
    reaching this conclusion, we note that the Minister had his officials make
    inquiries of the Romanian authorities about numerous other matters (e.g., the
    conditions of confinement to which Ms. Boros will be subjected; her access to
    medical treatment while incarcerated; whether Ms. Boros would be at risk of
    persecution in Romania; whether Ms. Boros has the right to request a re-trial
    if returned to Romania; and whether the enforcement of Ms. Boros prison
    sentence is time-barred). Yet, there was no effort to address the dispute
    discussed above. The failure to make this inquiry undermines the reasonableness
    of the Ministers decision.

[28]

In
    terms of the delay between Romanias request of December 4, 2008, and the
    issuance of the ATP on May 13, 2015, Ms. Boros submits that the Minister
    provided no meaningful explanation for the delay. She argues that the
    Ministers approach to this issue lacks transparency. Ms. Greenspan argues that
    the Minister did not properly explain the delay and merely parroted language
    from the Supreme Court of Canadas decision in
Mellino
.
We set
    out below the relevant paragraphs of
Mellino
and the Ministers
    letter:

Mellino
, at para. 23

Ministers letter

23. In assessing the issue, a court must not overlook
          that extradition proceedings must be approached with a view to
conform
          with Canada's international obligations
. The courts have on many
          occasions reiterated that the requirements and technicalities of the criminal
          law apply only to a limited extent in extradition proceedings. One cannot
          view delay resulting from the
complexity
involved in dealing with
          activities that reach across national boundaries and involve
different
          systems of law
and several levels of bureaucracies in the same way as
          that in local prosecutions. This is especially so when one considers that
          extradition proceedings are but a small part of the many and variegated
          responsibilities of diplomatic officials. It is interesting that the time
          schedule set forth in article XIV has been described as hectic and criticized
          as too onerous. [Citations omitted.]

Between December 4, 2008, and
          the issuance of the ATP in 2015, my officials worked with the Romanian
          authorities to prepare extradition request materials in English that
conform
          to Canadian legal requirements
. This delay is attributable to the
complex
,
          time-consuming, and expensive dialogue of treaty partners working together to
          overcome
differences in
language, resources and
legal systems
.
          Romania has a judge-led process for making extradition requests. The
          materials generated by this process, which are often lengthy as they are in
          this case, require translation. This process is often slow. Revisions and
          supplements to materials can be lengthy undertakings in light of the
          differences between Canadian and Romanian administrative approaches to
          extradition.

[29]

We
    are not persuaded that the Minister merely parroted
Mellino
as Ms.
    Boros claims. However, we are not satisfied that the Minister addressed this
    concern transparently. The above-quoted passage from the Ministers letter
    covers a long period of time, but sheds very little light on what happened. This
    general approach denies Ms. Boros the opportunity to understand why the process
    took so long. It also deprives this court of the ability to gauge the
    reasonableness of the Ministers decision in terms of whether his officials
    could have advanced this file more expeditiously and what efforts were made, if
    any, to encourage Romanian officials to act with diligence in responding to
    requests from its Canadian counterparts. Moreover, the 18-month delay between
    the issuance of the ATP and the summons is not explained. The combined Canadian
    delay of nearly 8 years is not addressed beyond an implicit general claim that
    these matters take a long time. In our view, this is inadequate.

[30]

The
    delay between Ms. Ioans statement of September 23, 1998 and the issuance of the
    summons on November 15, 2016  more than 18 years  has not been properly
    investigated, nor properly explained. In the circumstances, the surrender order
    cannot stand. On the existing record, we are unable to determine whether the
    decision to order Ms. Boros surrender was reasonable. More information is
    required before we can properly conduct this analysis.

Disposition

[31]

Accordingly,
    the application for judicial review is allowed and the case is referred back to
    the Minister for reconsideration in light of these reasons: see
Extradition
    Act
, 57(6).

[32]

We
    respectfully request that the Minister make inquiries of the Romanian
    authorities as to when its officials
first

became aware that
    Ms. Boros resided in Canada, especially in light of the police statement given
    by Ms. Ioan on September 23, 1998. After these inquiries are complete, it would
    be appropriate to disclose the results to Ms. Boros and permit her to make
    submissions.

[33]

We
    further direct the Minister to provide a detailed explanation for Canadas
    delay following the issuance of the ATP and leading up to the issuance of the
    summons.

G.R. Strathy C.J.O.

B.W. Miller J.A.

Gary Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Rubner v. Bistricer, 2020 ONCA 226

DATE: 20200317

DOCKET: C65323

Feldman, Pepall and Miller JJ.A.

In the Matter of the Appointment of a
    Litigation Guardian for Eda Rubner and
The Substitute Decisions Act
,
    1992

BETWEEN

Joseph Rubner (also known as
    Yossi Rubner) and Marvin Rubner, in their capacity as Joint Attorneys for
    property acting under a Continuing Power of Attorney for Property granted by
    Eda Rubner dated January 12, 2003

Applicants/Respondents

and

Alexander Bistricer
,
Brenda Bistricer
, Eda Rubner, in her personal capacity, in
    her capacity as a Trustee of the Bistricer/Rubner Family Trust, and in her
    capacity as Bare Trustee through Eda Rubner Realty a sole proprietorship in the
    Lower Fourth Joint Venture, Michelle Levinson and 975273 Ontario Limited

Respondents/
Appellants

Anne Posno and Amy Sherrard, for the
    appellants, Alexander Bistricer and Brenda Bistricer

David Steinberg, for the respondent
    Brahm Rosen in his capacity as Litigation Guardian for Eda Rubner

Arieh Bloom, for the respondents Marvin
    Rubner and Joseph Rubner in their capacity as Joint Attorneys for Property of
    Eda Rubner

John Adair, for the respondent Joseph
    Rubner

Ian C. Matthews, for the intervenors on
    the appeal Mattamy (Sixth Line) Limited, Mattamy (Oak) Limited, Mattamy
    (Penlow) Limited, 1214850 Ontario Inc., Mattamy Realty Limited, Ruland Realty
    Limited, and Bratty BuildinG

Heard: November 28, 2018

On appeal from the judgment of Justice
    Frederick L. Myers of the Superior Court of Justice, dated March 22, 2018, with
    reasons reported at 2018 ONSC 1934, and from the costs order, dated May 14,
    2018, with reasons reported at 2018 ONSC 3038.

COSTS ENDORSEMENT

[1]

The parties have now provided written
    submissions following release of the courts decision on the appeal.

[2]

The appellants and respondents have agreed that
    as success was divided, there should be no costs of the appeal.

[3]

With respect to the costs of the summary
    judgment motion, the respondents submit that they are entitled to their costs,
    but on the partial indemnity scale ($152,890.55) rather than the substantial
    indemnity ordered by the motion judge. The appellants submit that they are
    entitled to costs on the partial indemnity scale ($100,000) of the application
    brought by the respondents as it was dismissed by the decision of this court.

[4]

Dealing first with the appellant, Alex
    Bistricer, although he was fully successful on the appeal and all claims
    against him were dismissed, because the successful argument of bare trust was not
    argued on the motion but only on the appeal, we are satisfied that there should
    be no order as to costs of the summary judgment motion.

[5]

For the appellant, Brenda Bistricer, the
    application against her was dismissed, but a number of findings made by the
    motion judge were not set aside, which had the effect of split success from a
    financial point of view. While she was found to be entitled to the funds in the
    disputed bank accounts held in trust, she is not entitled to any future
    distributions that were not held in trust. As success was divided, there will
    be no costs of the summary judgment motion as between the appellant Brenda
    Bistricer and the respondents.

[6]

The litigation guardian seeks his costs of the
    appeal and the costs awarded to him by the motion judge from the appellants.
    The litigation guardian was aligned with the respondents and supported their
    position on the summary judgment motion and on the appeal. The only separate
    claim made against him was for an accounting of any funds received from the
    disputed bank accounts. That claim was dismissed by the motion judge and not pursued
    on the appeal. The litigation guardian is not entitled to any costs of the
    appeal. He is entitled to partial recovery of costs on the summary judgment
    motion fixed in the amount of $40,000 inclusive of disbursements and HST.

K. Feldman J.A.

S.E. Pepall J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Rubner v. Rubner, 2020 ONCA 195

DATE: 20200311

DOCKET: C67273

Tulloch, Benotto and Jamal JJ.A.

BETWEEN

Marvin Rubner

Applicant (Appellant)

and

Joseph Rubner

Respondent (Respondent)

Markus Kremer and Graham Splawski, for the appellant

Sean M. Grayson, for the respondent

Heard: March 5, 2020

On appeal from the
    judgment of Justice Laurence A. Pattillo of the Superior Court of Justice,
    dated July 11, 2019, with reasons reported at 2019 ONSC 4110.

REASONS FOR DECISION

[1]

The sole issue on this appeal is whether two brothers, Marvin and Joseph
    Rubner, reached a binding settlement agreement of the litigation between them relating
    to their respective interests in a real estate business. Marvin says that he
    and his brother had a deal; Joseph disputes this.

[2]

The application judge sided with Josephs position, based on his
    interpretation of documents and emails relating to the alleged agreement and evidence
    of the surrounding circumstances preceding it.

[3]

The application judge found that a handwritten document of Deal Points
    signed by Joseph, which was provided to Marvin and his counsel on July 31, 2018,
    limited the authority of Josephs counsel to renegotiate the Deal Points; it merely
    authorized Josephs counsel to negotiate comprehensive minutes of settlement implementing
    them. The application judge found that this limitation of authority arose from Josephs
    handwritten notation on the Deal Points: I confirm my agreement to the deal
    points herein, and give authority to [my counsel] to negotiate comprehensive
    Minutes of Settlement.

[4]

Marvin never signed back the Deal Points, and instead responded with what
    his counsel described at the time as additional material terms. Josephs
    counsel then purported to accept the new terms without Josephs authorization.

[5]

The application judge also supported his conclusion that Marvin and Joseph
    had not concluded a settlement agreement with: (1) evidence of a course of
    dealings showing that both Marvin and Joseph understood that they each had to
    agree to the Deal Points or material terms of the settlement and they each had
    to sign the document setting out the Deal Points; and (2) evidence showing
    that Marvins counsel was aware of Josephs counsels limitation of
    authority.

[6]

The application judge therefore held that no agreement was reached
    between Marvin and Joseph on the Deal Points or material terms of the
    settlement. There was no mutual intention to agree and accordingly no binding
    settlement was reached between them.

[7]

Marvin now asserts that the application judge erred in his appreciation
    of the evidence by: (1) misunderstanding the nature and effect of the
    communications between Marvins counsel and Josephs counsel; (2) failing to
    consider the evidence of Josephs counsel that when he informed Marvins counsel
    that the parties were
ad idem
, he was communicating on Josephs
    behalf; and (3) finding that Joseph limited the authority of his counsel to
    renegotiate the Deal Points. In particular, Marvin asserts that the application
    judge applied the wrong legal test and should have asked whether Josephs counsel
    had ostensible rather than actual authority to conclude the settlement on
    Josephs behalf.

[8]

We do not accept these arguments. The application judges interpretation
    of the Deal Points in light of the surrounding circumstances to determine whether
    the parties reached a binding settlement agreement is a question of mixed fact
    and law reviewable only for palpable and overriding error:
Sattva Capital
    Corp. v. Creston Moly Corp.
, 2014 SCC 53, [2014] 2 S.C.R. 633, at paras. 50,
    52. Marvin has shown no such error. The application judges decision is therefore
    entitled to appellate deference.

[9]

We are not persuaded that the application judge failed to apply the correct
    legal test for ostensible authority. He cited, at paragraph 29 of his reasons, this
    courts decision in
Dick v. McKinnon
, 2014 ONCA 784, at para. 4, as
    authority for the settled proposition that a solicitor of record has the
    ostensible authority to bind his or her client and that opposing counsel is
    entitled to rely on that authority, absent some indication to the contrary. He went
    on, at paragraphs 30 to 33 of his reasons, to apply that principle to the
    evidence in this case. He found an indication to the contrary regarding the
    ostensible authority of Josephs counsel in Josephs handwritten notation on
    the Deal Points, cited above at paragraph 3, that limited his counsels
    authority to negotiating the minutes of settlement, rather than the Deal Points,
    and in the evidence referred to at paragraph 5 above. The application judges
    application of the settled test for ostensible authority to his findings of
    fact is entitled to appellate deference.

[10]

The appeal is dismissed. Costs are payable to Joseph in the agreed
    amount of $10,000, inclusive of HST and disbursements.

M. Tulloch J.A.

M.L. Benotto J.A.

M. Jamal J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Thistle v. Schumilas, 2020 ONCA 212

DATE: 20200316

DOCKET: C66432

Watt, Hourigan and Trotter JJ.A.

BETWEEN

Jason Michael Thistle

Plaintiff (Respondent)

and

James Schumilas, Jr.
, WCS Financial Services, Cinaber Financial Inc. and Bridgeforce
    Financial Group Inc.

Defendants (
Appellant
)

Marie Sydney, for the appellant

Sean Zeitz, for the respondent

Heard: November 29, 2019

On appeal from the order of Justice Catrina D. Braid of
    the Superior Court of Justice, dated December 21, 2018.

COSTS ENDORSEMENT

[1]

In our reasons dated February 6, 2020, we allowed the appeal and ordered
    that the respondent pay the appellants costs of the appeal in the
    all-inclusive sum of $10,000.

[2]

We further ordered that the appellant is entitled to his costs of the
    motion and cross-motion in the Superior Court. We directed that if the parties
    cannot agree on the quantum of those costs, they may make brief written
    submissions to this court. No costs submissions have been filed.

[3]

To the extent that there are costs of the action below other than the
    costs of the motion and cross-motion, the appellant is
prima facie
entitled to those costs given that the respondents action has been dismissed.
    If the parties cannot agree on those costs, they may make written submissions
    to this court on the issues of entitlement and quantum of those costs.

[4]

The appellants costs submissions on all issues shall be served and
    filed by March 24, 2020 and shall be no more than three pages, plus a bill of
    costs. The respondents costs submissions shall be served and filed by March
    31, 2020, and shall be no more than three pages, plus a bill of costs. Any
    reply submissions, which shall be no more than two pages, shall be served and
    filed by April 6, 2020.

David Watt J.A.

C.W. Hourigan J.A.

G.T. Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Vahle v. Global Work & Travel
    Co. Inc., 2020 ONCA 224

DATE: 20200318

DOCKET: C67199

Simmons, van Rensburg and
    Harvison Young JJ.A.

BETWEEN

Nora
    Vahle, Harold Vahle, Drazena Mamic

and
    Estate of Marija Vahle, deceased

Plaintiffs (Respondents)

and

Global Work & Travel Co.
    Inc.

Defendant
    (Appellant)

Elizabeth Bowker and Christopher Afonso,
    for the appellant

Allan Morrison and Vibhu Sharma, for
    the respondents

Heard: February 20, 2020

On appeal from the order of Justice Paul B. Schabas of the Superior
    Court of Justice, dated June 13, 2019, with reasons reported at 2019 ONSC 3624.

REASONS FOR DECISION

[1]

In the autumn of 2015, two sisters, aged 19 and
    20, decided they wanted to travel to Thailand to teach English. In August of
    2016, they flew to Thailand to participate in a "Teach in Thailand"
    experience arranged through the appellant, a British Columbia company with
    offices and employees in Vancouver.

[2]

After completing their teaching course, the
    sisters were assigned to different towns and given motor scooters for
    transportation.

[3]

Tragically, while riding together on a motor
    scooter on a day off in October 2016, the sisters were struck by another
    motorist and seriously injured. The younger sister succumbed to her injuries; the
    older sister continues to suffer the lasting effects of the accident.

[4]

The respondents commenced an action in Ontario
    against the appellant, claiming damages for breach of contract, breach of fiduciary
    duty, negligence, negligent misrepresentation and other torts.

[5]

The motion judge dismissed a motion to dismiss
    or stay the action based on lack of jurisdiction
simpliciter
and
forum
    non conveniens
.

[6]

The motion judge applied the test from
Club
    Resorts Ltd. v. Van Breda
, 2012 SCC 17, [2012] 1 S.C.R. 572,
    considering the various presumptive connecting factors.
Among
    other things, the motion judge found a presumptive connecting factor in the
    form of torts committed in Ontario. He concluded that the appellant had not
    rebutted the presumption of a real and substantial connection between the
    subject matter of the litigation and Ontario. After determining that Ontario
    had jurisdiction
simpliciter
, he concluded that the appellant had
    failed to establish that another forum was clearly more appropriate.

[7]

On appeal, the appellant concedes that the
    motion judge summarized correctly the law relating to jurisdiction
simpliciter
and
forum non conveniens
. However, the appellant argues that the
    motion judge erred in his application of the relevant principles.

[8]

We reject the appellant's arguments that the
    trial judge erred in relying on the torts of negligent misrepresentation and
    negligence having been committed in Ontario as presumptive connecting factors;
    in holding that the respondents met the good arguable case threshold; and in
    concluding that the appellant had not rebutted the presumption of a real and
    substantial connection between the subject matter of the litigation and Ontario.

[9]

While acknowledging that the claims for
    negligent misrepresentation may require particulars, the motion judge found
    there was a good arguable case supporting a presumptive factor in respect of
    the claim for harm suffered arising from the appellant's alleged
    misrepresentations to the sisters in Ontario about the "Teach in
    Thailand" program. These included representations that the appellant would
    ensure the living, safety, security and emergency needs of the sisters. In
    addition, claims concerning the appellant's post-accident conduct in Ontario
    concerning contacting the sisters' parents could support a claim in negligence.

[10]

We see no error in the motion judge's conclusion
    that the appellant failed to rebut the real and substantial connection created
    by the presumptive connecting factors established by a tort committed in
    Ontario. In order to rebut a presumptive connecting factor, a defendant must
    establish facts which demonstrate that the presumptive connecting factor does
    not point to any real relationship between the subject matter of the litigation
    and the forum or points only to a weak relationship between them:
Van
    Breda
, at para. 95. The motion judge noted the potential weakness of
    internet representations as a connecting factor. However, he pointed out that
    the appellant was well-aware that it was attracting Ontario clients through
    representations made in Ontario. He also considered the potential minimal role
    of a travel agent when this type of accident occurs in a foreign jurisdiction,
    but concluded that the allegations concerning the appellant were that it
    provided, and represented that it provided, a much more far-reaching service
    than that of a simple travel agent.

[11]

We also see no error in the motion judges
    application of the good arguable case test. The appellant argues that the
    motion judge erred because (1) the facts pleaded by the respondents were not
    capable at law of constituting the cause of action pleaded (concerning the
    claims for negligent misrepresentation, the appellant says that the older
    sister acknowledged on cross-examination that all she was told in telephone
    calls with the appellant was that she would be safe, that this amounts to no
    more than a forecast that is not at law capable of being a misrepresentation and
    that the motion judges reliance on the appellants omission to advise the
    sisters about the requirement to ride motor scooters and the dangers associated
    with that activity is not actionable as a misrepresentation); and (2) on the
    evidence before the motion judge, any viable claims against the appellant that
    are connected to Ontario are not supported.

[12]

We disagree. As the motion judge pointed out at
    para. 26 of his reasons, while there is an evidentiary burden on the plaintiff
    to substantiate the presumptive connecting factors, especially where there is
    insufficient particularity in the statement of claim with respect to the
    jurisdictional facts, this does not mean that the motion judge is to assess
    the merits of the case, but he or she must at least be satisfied that there is
    a good arguable case
supporting a presumptive factor
 (emphasis added),
    taking account of both the allegations in the statement of claim and the
    evidence, where evidence is led .

[13]

The requirement that there be a good arguable
    case supporting a presumptive factor is easily met in this case. The sisters
    were in Ontario when they responded to internet advertisements from Global. At
    least some of the misrepresentations relied on are alleged to have been made to
    them in Ontario, and before they left for Thailand. Further, the motion judges
    finding that there was evidence that may support the misrepresentations pleaded
    and that they occurred in Ontario is supported by the record. While the
    appellant contends that some (not all) of the alleged misconduct was that of a
    Thai company, XploreAsia and other entities for which it is not responsible, at
    para. 13 of his reasons, the motion judge noted that the appellants evidence
    in that regard was deficient. In any event, it is unnecessary on a jurisdiction
    motion for the court to determine whether
all
of the alleged
    misconduct was that of the appellant, as pleaded, or that
all
of the
    alleged misconduct is connected to Ontario:
Van Breda,
at para. 99. It
    is also unnecessary and inappropriate to treat a jurisdiction motion as a r. 21
    motion or to weigh evidence going to the merits of the litigation. Rather, the
    questions on a jurisdiction motion are whether the statement of claim asserts
    the core elements of a cause of action known to law and appears capable of
    amendment to cure any pleadings deficiencies and whether the claimant has
    established a good arguable case that the cause of action is sufficiently
    connected to Ontario to found jurisdiction. As this court noted in
Ontario (Attorney
    General) v. Rothmans Inc.
, 2013 ONCA 353, 115 O.R. (3d) 561, at para. 106,
    leave to appeal refused, [2013] S.C.C.A. No. 327:

[O]n a jurisdiction motion, the motion judge
    is not required to subject the pleadings to the scrutiny applicable on a rule
    21 motion. So long as a statement of claim advances the core elements of a
    cause of action known to law and appears capable of being amended to cure any
    pleadings deficiencies such that the claim will have at least some prospect of
    success, the issue for the motion judge is whether the claimant has established
    a good arguable case that the cause of action is sufficiently connected to
    Ontario to permit an Ontario court to assume jurisdiction.

It is necessary for the purpose of a
    jurisdiction motion for the court to determine whether there is a real and
    substantial connection between Ontario and the claims, when considered as a
    whole.

[14]

Finally, on our review of his reasons, the
    motion judge conducted a thorough
forum non conveniens
analysis and
    considered all the relevant factors. Given the nature of the claims the
    respondents are advancing, in particular, negligent misrepresentation and
    negligence in Ontario, we see no basis on which to interfere with his
    conclusion. It is not for us to reweigh his assessment of the relevant factors.

[15]

For these reasons the appeal is dismissed. Costs
    to the respondents in the sum of $25,000, inclusive of disbursements and HST.

Janet
    Simmons J.A.

K.
    van Rensburg J.A.

A. Harvison
    Young J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Van Huizen v. Trisura Guarantee
    Insurance Company, 2020 ONCA 222

DATE: 20200318

DOCKET: C66699

Hoy A.C.J.O., van Rensburg and
    Roberts JJ.A.

BETWEEN

John
    Van Huizen and Hastings Appraisal Services

Plaintiffs (Respondents)

and

Trisura
    Guarantee Insurance Company

Defendant
    (Appellant)

Heather Gray, for the appellant

R. Steven Baldwin, for the respondents

Heard: October 9, 2019

On appeal from the order of Justice
    Patrick Hurley of the Superior Court of Justice dated February 15, 2019, with
    reasons reported at 2018 ONSC 4828, [2019] I.L.R. I-6088.

Roberts J.A.:

A.

OVERVIEW

[1]

The appellant insurer appeals from the order of
    the motion judge dismissing its motion for summary judgment and granting
    judgment to the respondents. The motion judge found that the appellant had a
    duty to defend the respondents under the policy of professional liability
    insurance issued by the appellant.

[2]

I would allow the appeal. In my view, the motion
    judge erred in his interpretation of the insurance contract between the
    appellant and the respondent, Mr. Van Huizen. Specifically, the motion judge
    erred by effectively treating a master policy as the entire insurance contract
    for all members of the Appraisal Institute of Canada (the AIC). This
    misconstruction caused the motion judge to conflate two insurance contracts
    that shared standard terms set out in a master policy.

[3]

According to the terms of the insurance contract
    between the appellant and Mr. Van Huizen, there was no duty to defend in the
    circumstances of this case. However, I would not grant summary judgment to the
    appellant. The issue of whether the appellant had a duty to defend the
    respondents under another insurance contract between the appellant and the
    allegedly negligent appraiser was not decided by the motion judge nor raised as
    an issue on this appeal. It requires determination on a complete record after
    full argument.

B.

Background

[4]

The appellant issued the professional liability
    insurance policy number TPL1003399 (the master policy) to the AIC for the
    relevant period. The master policy relates to claims made against AIC members,
    as well as their personal corporations, employers, and the AIC, for the
    negligent provision of professional appraisal services by members.

[5]

The defence and settlement section of the master
    policy reads, in part:

The Insurer shall have the right and the duty
    to defend, with respect to such insurance as is afforded by this Policy, any
    Claim made against an Insured .

[6]

Coverage under the master policy is extended to
    individual members of the AIC by way of individual application. On assessment
    of the individual members risk, acceptance of the individuals application,
    and payment of the premium, an individual certificate of insurance is issued to
    that member.

[7]

Mr. Van Huizen is a professional appraiser and
    member of the AIC. He carries on business through a corporation, Inpho Limited,
    operating under the business style of the other respondent, Hastings Appraisal
    Services. The respondents were insured under the master policy and an
    individual certificate of insurance, number AIC 02408, issued by the appellant
    to Mr. Van Huizen (the Van Huizen insurance contract).

[8]

David Barkley was a professional appraiser and a
    member of AIC. He was also insured under the master policy and his own
    individual certificate of insurance, number AIC 03188, issued by the appellant
    (the Barkley insurance contract). Mr. Barkley passed away in October 2016.

[9]

In March 2008, under the auspices of Hastings
    Appraisal Services, Mr. Barkley appraised a residential property at the
    request of Sandra Behlok Insurance Agency Ltd.

[10]

Three claims were brought in relation to this
    appraisal (collectively the Behlok proceedings). Two actions commenced by
    Behlok alleged that the respondents, as the employers or principals of Mr.
    Barkley, were vicariously liable for his negligently performed appraisal of the
    residential property. In his third party claim, Mr. Barkley claimed
    contribution and indemnity from the respondents as his employers or principals
    for any damages payable to the client.

[11]

Mr. Van Huizen made a claim under the Van Huizen
    insurance contract in relation to the Behlok proceedings. The appellant denied
    coverage, partly because the respondents sought coverage under the Van Huizen
    insurance contract and not the Barkley insurance contract. While acknowledging
    that Mr. Van Huizen was an insured as defined in the master policy under the
    Van Huizen insurance contract, the appellant took the position that the Van
    Huizen insurance contract did not provide coverage for the alleged professional
    negligence of Mr. Barkley. With respect to the Van Huizen and Barkley insurance
    contracts, the appellant maintained that the respondents were not Mr. Barkleys
    employer and therefore were not covered.

[12]

The respondents commenced the underlying action
    against the appellant for a declaration that the appellant had a duty to defend
    and indemnify them under the Van Huizen insurance contract in response to the
    Behlok proceedings.

[13]

The appellant brought a motion for summary
    judgment to dismiss the respondents action against it on the ground that it
    had no duty to defend them under that contract in response to a claim involving
    Mr. Barkleys appraisal.

C.

DECISION Below

[14]

By the time the appellants motion was heard, the
    Behlok proceedings were settled, save for the disposition of costs. As a
    result, the motion judge had to consider only whether the appellant had a duty
    to defend the respondents and indemnify them for their defence costs.

[15]

The motion judge reviewed the pleadings,
    interpreted the definitions under the master policy, but did not consider the
    significance of the separately issued certificate. He determined that the
    terms, Member and Insured, were broad enough to include both Mr. Van Huizen
    and Mr. Barkley who were insured under the same master policy but different
    certificates. As a result, he concluded that Mr. Van Huizen has coverage for a
    legal claim arising from his own actions and also when it flows from his legal
    status as an employer of the alleged wrongdoer. He was not asked to consider
    and therefore did not decide whether the respondents were covered as Mr.
    Barkleys employer under the Barkley insurance contract.

[16]

The motion judge also determined that the
    appellant had a duty to defend Mr. Van Huizen in the Behlok proceedings. He
    explained that, in his view, this interpretation was necessary if the vicarious
    liability provision was to have any practical effect:

If this was not the case, there would be no
    need for the vicarious liability provision in the contract. Such liability
    attaches in the absence of any negligence or other fault on the part of the
    employer. If it was the intent of the parties that an insured would only have
    coverage when he or she personally committed the negligent act or omission, the
    vicarious liability protection would be superfluous.

[17]

In a subsequent endorsement dated September 20,
    2018, the motion judge clarified that the duty to defend included both Mr. Van
    Huizen and Hastings Appraisal Services.

[18]

In his further reasons dated February 15, 2019,
    the motion judge ordered that the respondents were entitled to reimbursement of
    their defence costs in the amount of $42,000 plus interest. He declined to
    apply and reduce those costs by the $7,500 deductible under the policy. He
    concluded it was premature to do so because the underlying litigation had not
    been resolved and the appellant would recover costs in the litigation that
    could eliminate the deductible.

D.

ISSUES

[19]

The appellant raises several grounds of appeal.
[1]
In my view, the appeal turns on the following issues:

(i)

Did the motion judge err in finding that the
    appellants duty to defend the respondents in the Behlok proceedings was
    engaged under the Van Huizen insurance contract?

(ii)

If the appeal is allowed, should summary judgment
    be granted to the appellant?

[20]

I agree that the motion judge erred in his
    interpretation of the Van Huizen insurance contract and in finding that the
    appellant had a duty to defend the respondents on this basis. However, as I
    will explain, I do not agree that summary judgment should be granted to the
    appellant.

E.

Applicable Legal Principles

[21]

The motion judge had to consider the question of
    whether the appellant had a duty to defend the respondents in response to the
    Behlok proceedings, as he acknowledged, under the Van Huizen insurance
    contract. The motion judge erred by effectively treating the master policy as
    the entire insurance contract for all AIC members. This led him to conflate the
    Van Huizen and Barkley insurance contracts.

[22]

It is therefore important for the purpose of
    this appeal to clarify the distinction between an insurance policy and an
    insurance contract. These words are often used interchangeably. This conflation
    can give rise to considerable confusion, as it did here.

[23]

An insurance policy is an instrument. Without
    parties entering into an agreement to be bound by its terms and conditions, it
    is not an insurance contract. By itself, it is merely a recitation of terms
    and conditions which do not attach to a particular person, item or interest:
    Barbara Billingsley,
General Principles of Canadian Insurance Law
, 2nd
    ed. (Markham: LexisNexis, 2014), at p. 58. No legal obligations are created by
    the mere existence of a written insurance policy. Absent a contractual
    relationship incorporating its terms, the words of a policy are worth less
    than the paper on which they are printed: Denis Boivin,
Insurance Law
,
    2nd ed. (Toronto: Irwin Law, 2015), at p. 242.

[24]

An insurance contract, by contrast, creates
    contractual obligations between parties:
Rayner v. Preston
, (1881) 18
    Ch. D. 1 (Eng. C.A.), at p. 10. The formation of insurance contracts is
    governed by the law of contracts. There must be offer and acceptance, and
    agreement on all material terms, including the premium, the nature and duration
    of the risk to be covered, and the extent of liability:
McCunn Estate v.
    Canadian Imperial Bank of Commerce
(2001), 53 O.R. (3d) 304 (C.A.), at
    paras. 18-19, leave to appeal granted but appeal discontinued, [2001] S.C.C.A.
    No. 203. In determining whether to enter into a particular insurance contract,
    the insurer assesses the risk and determines an acceptable premium based on the
    representations made by the applicant for insurance: Craig Brown & Andrew
    Mercer,
Introduction to Canadian Insurance Law
, 3rd ed. (Markham:
    LexisNexis, 2013), at p. 23.

[25]

An insurance policy may evidence the existence
    of an insurance contract because often parties will agree, as part of their
    contract, to be bound by terms and conditions as set out in an appropriate
    policy: Billingsley, at p. 59; Brown & Mercer, at p. 23. When an insurer
    uses a standard policy, it may issue a certificate of insurance as proof of the
    underlying contract on the terms set out in an applicable policy: Boivin, at p.
    258. But an insurance policy or certificate of insurance is only the
    instrument; it evidences the existence of the insurance contract by which the
    parties have agreed to be bound.

[26]

This relationship between an insurance contract
    and an insurance policy is recognized by the statutory definitions of
    contract and policy:
Insurance Act
, R.S.O. 1990, c. I.8, s. 1.
    Under s. 1 of the
Insurance Act
, contract means an insurance
    contract, and
includes
a policy and certificate of
    insurance evidencing the contract. By contrast, policy means the
instrument
evidencing a contract.

[27]

Therefore, while an insurance policy sets out
    terms that may govern the relationship between the parties to an insurance
    contract, it is the contract that gives rise to legal consequences and must be
    the subject of interpretation for the purposes of determining the parties
    rights and obligations.

F.

Analysis

(i)

There is No Duty to Defend the Behlok
    Proceedings Under the Van Huizen Insurance Contract

(a)

The Motion Judge Erred by Interpreting the
    Insurance Policy Rather than the Insurance Contract

[28]

The motion judge correctly recognized that the
    duty to defend arises if there is the mere possibility that a claim falls
    within the insurance policy:
Progressive Homes Ltd. v. Lombard General
    Insurance Co.
, 2010 SCC 33, [2010] 2 S.C.R. 245, at para. 19. The motion
    judge also recognized that it was necessary to search for an interpretation
    from the whole of the contract which promotes the true intent of the parties at
    the time of entry into the contract:
Coast Capital Equipment Finance Ltd.
    v. Old Republic Insurance Company of Canada
, 2018 ONCA 540, 81 C.C.L.I.
    (5th) 220, at para. 19.

[29]

While the motion judge correctly set out the
    relevant interpretative principles in determining whether the pleadings and the
    master policy created a duty to defend, he erred in his application of them.
    The duty to defend is a contractual obligation. The motion judge erred by
    narrowing his inquiry to the language of the pleadings and the master policy
    and effectively considering the master policy as the insurance contract between
    Mr. Van Huizen and the appellant. This led him to conflate the Van Huizen and
    Barkley insurance contracts.

[30]

To be fair to the motion judge, it is easy to
    see why he fell into error. As I earlier observed, the terms insurance policy
    and insurance contract are often treated synonymously. Nevertheless, in this
    case it was necessary to distinguish between the Van Huizen and Barkley
    insurance contracts and the documents evidencing their terms.

[31]

The motion judge interpreted the master policy
    as if it constituted a binding contract between the insurer and
all
members who had been issued a certificate. Given
    that both Mr. Van Huizen and Mr. Barkley held certificates, the motion judge
    concluded that they were both Insured, and that Mr. Van Huizen was therefore
    covered under the master policy for liability arising out of Mr. Barkleys
    alleged negligent appraisal.

[32]

For the reasons I have already stated, the
    master policy does not, however, constitute such a binding agreement on its
    own. It cannot. The master policy merely sets out the terms of professional
    liability insurance being offered to the members of the AIC. It is missing key
    terms on which agreement is necessary to form an insurance contract, including
    the assessed risk, the premium to be paid and the term of insurance:
McCunn
    Estate
, at para. 19.

[33]

Each member who desires coverage must
apply
for the coverage on terms set out in the master
    policy. The insurer can then assess the individual risk of the applicant in
    determining the premium and in deciding whether to enter into a contract with
    the applicant. Provided the member and insurer come to an agreement on the
    remaining essential terms of the contract and agree to be bound by the master
    policy, the insurer will issue a certificate to the member, evidencing the
    existence of that contract.

[34]

It follows that while each member who holds a
    certificate will be bound by identical terms as set out in the master policy,
    they are also bound by the unique terms as set out in their certificates and
    are therefore necessarily party to separate contracts with the insurer. In
Re
    Lawton
, [1945] 4 D.L.R. 8 (Man. C.A.), at p. 37, Bergman J.A., concurring,

noted a similar phenomenon in the context of a group life insurance policy
    for employees of a certain employer:

The master policy is, in effect, merely an
    agreement by the [insurer] with the [employer] to insure the individual
    employees who are eligible, on the terms specified in the master policy. In my
    opinion the certificates issued to the individual employees pursuant to, and in
    performance of, that agreement, constitute the real and effective insurance. I
    am further of the opinion that these certificates are not incorporated in, and
    made part of, the master policy. It is the other way about; the master policy
    is incorporated in, and made part of, each individual certificate of insurance.

[35]

Similarly, the certificates issued to Mr. Van
    Huizen and Mr. Barkley each evidence a separate insurance contract on terms
    including those set out in the master policy. The declarations specify exactly
    what constitutes these contracts of insurance: These Declarations along with
    any completed and signed Application and the Policy,
each
    Member Certificate of Insurance
, and endorsements, if any, shall
    constitute the entire contract between the Insured and [the appellant]
    (emphasis added).

[36]

The individual nature of the insurance contract
    is also reflected in the declarations, which say that the name of the insured
    is [a]s per individual certificate, as well as that the policy period is
    [a]s per individual certificate, and that the premium is [a]s per individual
    certificate. Further, the master policy summarizes the bargain that underlies
    the insurance contract, namely, that it is in consideration of the payment of
    the premium and in reliance upon all statements made and information furnished
    to the appellant, including the statements made in the Application, that
    insurance is agreed to be provided.

[37]

The appellants duty to defend must be
    ascertained within the entirety of the relevant insurance contract, properly
    interpreted, and cannot be determined solely in reference to the master policy,
    which is not an insurance contract and does not on its own bind the parties.

[38]

In my view, the motion judge fell into error by
    deciding the question of the duty to defend on the basis of the terms of the
    master policy untethered to the particular contractual relationship between the
    appellant and Mr. Van Huizen. As a result, his conclusion that the appellant
    owed a duty to defend the respondents under Mr. Van Huizens standard form
    insurance contract is not owed deference:
Ledcor Construction Ltd. v.
    Northbridge Indemnity Insurance Co.
, 2016 SCC 37, [2016] 2 S.C.R. 23, at
    para. 24. The question must therefore be considered afresh.

(b)

The Meaning of Employer Under the Master
    Policy

[39]

While not strictly necessary given my proposed
    disposition of this appeal, I deal with this issue for the purpose of providing
    some guidance concerning the preferred analytical approach. The appellant
    submits that there is no duty to defend under the Van Huizen insurance contract
    because in their statement of defence in the Behlok proceedings, the
    respondents deny that they were Mr. Barkleys Employer as defined in the
    master policy and therefore cannot be insured under the Van Huizen insurance
    contract.

[40]

The motion judge properly rejected this
    submission.

[41]

When determining whether there is a duty to
    defend, the court interprets the pleadings and the insurance contract to
    determine if there is the mere possibility that the claim, as pleaded, falls
    within the scope of coverage under the insurance contract. The duty to defend
    is not dependent on the insured actually being liable and the insurer actually
    being required to indemnify. It is irrelevant whether the allegations in the
    pleadings can be proven in evidence; for this interpretative purpose, the
    allegations in the statement of claim are to be taken as true: see
Progressive
    Homes
, at paras. 19-20. An insurer is obliged to provide a defence if the
    pleadings allege facts which, if true, could potentially require the insurer to
    indemnify the insured for the claim:
Nichols v. American Home
    Assurance Co.,
[1990] 1 S.C.R. 801, at p. 810-11;
Monenco
    Ltd. v. Commonwealth Insurance Co
., 2001 SCC 49, [2001] 2 S.C.R.
    699, at para. 28.

[42]

It is clearly alleged in the statements of claim
    in the Behlok proceedings that the respondents are the employer of Mr. Barkley.
    This allegation is accepted as true for the purpose of determining the duty to
    defend. The respondents denial does not affect this presumption nor the
    possibility that the allegation could prevail at trial.

[43]

As discussed more fully below, the master policy
    provides for a duty to defend claims made against any Insured (defined to
    include a Member and, in certain cases, an Employer) for a Wrongful Act.
    Under the master policy, Employer means any partnership, corporation, or
    sole proprietorship in which
a Member
was or is
    now an employee (emphasis added).

[44]

That, however, is not the end of the analysis to
    determine whether the appellant has a duty to defend the respondents under the
    Van Huizen insurance contract. As I will now explain, when the Van Huizen
    insurance contract is considered as a whole, the appellant has no duty to
    defend the respondents under that insurance contract.

(c)

The Van Huizen Insurance Contract Covers Only
    Mr. Van Huizens Professional Negligence

[45]

I am of the view that the Van Huizen insurance
    contract, properly interpreted, does not impose a duty to defend on the
    appellant in relation to the Behlok proceedings.

[46]

There is no question that the Behlok proceedings
    assert a civil claim for monetary damages arising from
Mr.
    Barkleys
allegedly negligent provision of professional appraisal
    services. The pleadings, however, do not allege a claim against Mr. Van Huizen
    or Hastings Appraisal Services as his employer for
his
allegedly negligent provision of professional appraisal services. Rather, the
    claim is framed against the respondents on the basis of their vicarious
    liability for Mr. Barkleys alleged negligent provision of professional
    appraisal services.

[47]

As a result, the interpretative issue is whether
    Mr. Van Huizens insurance contract requires the appellant to defend
the respondents
in relation to the claim that they are
    vicariously liable for the alleged wrongful act of
another
    insured
AIC member, Mr. Barkley, in his provision of professional
    appraisal services.

[48]

The determination of this question requires
    consideration of the master policy definitions in the context of the specific
    insurance contract between the appellant and Mr. Van Huizen.

[49]

For the purposes of this appeal, the relevant
    provisions of the definitions are as follows:

Claim means:

(ii) a civil proceeding commenced by the
    issuance of a notice of action, statement of claim, writ of summons, complaint
    or similar proceeding;

against any Insured for a Wrongful Act .

Employer means any partnership, corporation,
    or sole proprietorship in which a Member was or is now an employee.

Insured means:

(i) any Member

(iii) an Employer, but solely for its for [
sic
]
    vicarious liability arising out of Professional Services rendered, or alleged
    to have been rendered, by a Member, but only if a Claim is initially made and
    continuously maintained against such Employer and the Member

Member means any natural person named in Item
    3 of the Declarations [item 3 of the Declarations states: Name and Address of
    the Insured: As per individual certificate]  who is in good standing with the
    [AIC].

Wrongful Act means any actual or alleged negligent
    act, error or omission, misstatement or misleading statement committed solely
    by the Member in the performance of Professional Services while a Member is in
    good standing with the [AIC].

[50]

There is no doubt that Mr. Van Huizen is an
    Insured, as defined in his insurance contract. He meets all the criteria to
    be a Member. He is a natural person named in item 3 of the declarations
    because the individual certificate, referenced in that item, provides that the
    Insured is John Van Huizen. There is no dispute that Mr. Van Huizen fulfills
    the other criteria required to fall within the definition of a Member.

[51]

Similarly, Hastings Appraisal Services, as the
    alleged employer of Mr. Van Huizen, is also an Insured. As already
    noted, under clause (iii) of the definition an Insured can be an Employer
    (subject to certain qualifications). The use of the qualifier any before
    Insured in the definition of Claim makes clear that the appellant has a
    duty to defend any Insured as defined under Mr. Van Huizens insurance contract
    and not just Mr. Van Huizen who is a Member.

[52]

However, the definition of Claim is limited to
    claims against any Insured for a Wrongful Act. For ease of reference, I
    repeat the definition of Wrongful Act:

Wrongful Act means any actual or alleged
    negligent act, error or omission, misstatement or misleading statement
    committed solely by
the Member
in the performance
    of professional services while
a Member
in good
    standing with the [AIC]. [Emphasis added.]

[53]

In this case, the alleged negligent act was
    committed by Mr. Barkley and not Mr. Van Huizen. It appears undisputed that Mr.
    Barkley was an AIC member and that the alleged negligent act was committed by
    him in the performance of professional services while in good standing.

[54]

However, Mr. Van Huizen relies on
his
insurance contract, and not
Mr. Barkleys
insurance contract, in asking the appellant to defend him. The key question
    then becomes who is the Member under the Van Huizen insurance contract, as
    that term is incorporated by reference in the definitions of Insured and
    Wrongful Act. Its definition refers the reader to item 3 of the declarations,
    which, as noted above, states that the name and address of the insured is [a]s
    per individual certificate.

[55]

At para. 23 of his reasons, the motion judge
    concluded:

While the definition of wrongful act uses
    the definite article the referring to member, it must be interpreted in a
    manner consistent with the definitions of claim and insured. Under the
    policy, an insured does not have to be an appraiser; but he or she has to be an
    employer of someone who is and, if they are, the policy grants them coverage if
    they are alleged to be vicariously liable for the negligent acts or omissions
    of that member. As a result, [the appellant] has a duty to defend Mr. Van
    Huizen.

[56]

In my view, the motion judge erred by seizing on
    the fact that Mr. Van Huizen meets the definitions of an Insured and a
    Member under the master policy without giving effect to the language in the
    Van Huizen insurance contract that limited the nature of a claim against the
    respondents that the appellant is required to defend. As a result, the motion
    judge effectively conflated the Van Huizen and Barkley insurance contracts.

[57]

The only certificate of insurance that forms
    part of the relevant insurance contract is Mr. Van Huizens certificate. In
    that certificate, only Mr. Van Huizen is identified as an insured. Only his
    insurable risk is the subject of the contract. It is on that basis that the
    appellant determined the risk to be insured, set the premium to be paid, and
    entered into the insurance contract with Mr. Van Huizen.

[58]

Mr. Barkleys certificate does not form part of
    the Van Huizen insurance contract. It is different from the one issued to Mr.
    Van Huizen. While issued under the same master policy, the certificate is
    particular to the individual to whom it is issued and evidences only the
    individual insurance contract between the insurer and that member.

[59]

Since Mr. Van Huizen alone is named as an
    insured in the relevant certificate, he alone is the Member for the purposes
    of the Van Huizen insurance contract as that term is defined in the master
    policy. As a result, clause (i) of the definition of Insured captures Mr. Van
    Huizen and not Mr. Barkley. Further, vicarious liability under clause (iii) is
    limited to professional services rendered by a Member, which again, means
    only Mr. Van Huizen. The definition of Wrongful Act is similarly limited to
    professional services provided solely by the Member, Mr. Van Huizen.

[60]

According to the plain language of the master
    policy, the certificate of insurance and their definitions, then, coverage is
    provided for any claims against Mr. Van Huizen or his employer respecting Mr.
    Van Huizens provision of professional services. The Behlok proceedings did not
    allege that Mr. Van Huizen had committed a wrongful act in rendering or failing
    to render professional services. There is no coverage under the Van Huizen
    insurance contract for any claim related to an act of professional negligence
    committed by anyone other than Mr. Van Huizen.

[61]

I respectfully disagree with the suggestion of
    the motion judge that this interpretation renders the provision for vicarious
    liability on the part of the employer superfluous or a commercial absurdity. Rather,
    it acknowledges the privity of contract between the member and the insurer and
    provides for the possibility that the member named in the individual
    certificate may offer professional services not merely as an individual but
    through or on behalf of any partnership, corporation, or sole proprietorship
    in which a Member was or is now an employee. Each members insurance contract
    provides for coverage for their employers in any claim for the wrongful acts of
    that member. This makes practical, commercial sense.

[62]

Therefore, I conclude that this insurance
    contract does not give rise to a duty to defend the respondents for the alleged
    wrongful act of Mr. Barkley.

(ii)

Summary Judgment Should Not Be Granted to the
    Appellant

[63]

I would not grant summary judgment to the
    appellant. The issue as to whether the appellant has a duty to defend the
    respondents as Mr. Barkleys alleged Employer under the Barkley insurance
    contract with the appellant has not yet been decided.

[64]

In its statement of defence, the appellant
    expressly addresses the question as to whether the respondents are entitled to
    coverage under the Barkley insurance contract. The appellant pleads they are
    not Insureds because they are not Mr. Barkleys employer. However, the
    parties did not bring forward this issue for determination on the motion for
    summary judgment. Rather, they limited the question to whether the appellant
    owed them a duty to defend under the Van Huizen insurance contract. As a
    result, the motion judge only dealt with the issue of whether the appellant
    owed the respondents a duty to defend the Behlok proceedings under the Van
    Huizen insurance contract. Similarly, the issue of coverage under the Barkley
    insurance contract was not raised or argued on appeal.

[65]

Given the way the motion for summary judgment
    was argued and disposed of before the motion judge and on appeal, the question
    of coverage under the Barkley insurance contract for the respondents as Mr.
    Barkleys alleged Employer remains to be determined.

[66]

My proposed disposition of this appeal renders
    it neither necessary nor desirable to determine this issue. The record and
    submissions are incomplete because they focussed on the issue of coverage under
    the Van Huizen insurance contract.

[67]

Accordingly, in my opinion, there remains a live
    issue to be determined as to whether the appellant owes the respondents a duty
    to defend under the Barkley insurance contract. I would therefore dismiss the
    appellants motion for summary judgment.

G.

Disposition

[68]

Accordingly, it was an error for the motion judge
    to grant summary judgment to the respondents. The motion judges order should
    be set aside.

[69]

I would not allow the appellants motion for
    summary judgment nor dismiss the respondents action because there is a live
    issue requiring determination as to whether the appellant owes the respondents
    a duty to defend under Mr. Barkleys insurance contract with the appellant.

[70]

The appellant should be entitled to its partial
    indemnity costs of the appeal in the amount of $9,460.64 and, because of its
    success in overturning the judgment granted to the respondents, of the motion
    below in the amount of $6,343.50, both inclusive of all disbursements and
    applicable taxes.

Released: March 18, 2020 (L.B.)

L.B.
    Roberts J.A.

I agree. Alexandra Hoy A.C.J.O.

I agree. K. van Rensburg J.A.

[1]

The appellant
raises
the alternate
    issue of whether the motion judge erred in failing to apply the $7,500
    deductible under the Van Huizen insurance contract to the award of defence
    costs to the respondents. This issue only arises in the context of the Van
    Huizen insurance contract if the motion judges conclusion that there is a duty
    to defend is upheld. Given my proposed disposition of the appeal, it is
    unnecessary to determine this issue.


COURT OF APPEAL FOR ONTARIO

CITATION: Weisleder v. Ontario Secondary School
    Teachers' Federation, 2020 ONCA 181

DATE: 20200309

DOCKET: C67581

Feldman, Huscroft and Harvison Young JJ.A.

BETWEEN

Barry Weisleder

Plaintiff (Appellant)

and

The Ontario Secondary School Teachers' Federation

Defendant (Respondent)

Alexander Zivkov, for the appellant

Joanna Birenbaum and Kristen Allen, for the
    respondent

Heard: March 4, 2020

On appeal from the judgment of Justice Jane Ferguson of
    the Superior Court of Justice, dated October 8, 2019.

REASONS FOR DECISION

[1]

The respondent union was granted summary judgment dismissing Mr.
    Weisleders defamation action. Mr. Weisleder argues that the motion judge made
    several errors in characterizing the nature of the allegedly defamatory speech
    and erred in concluding that the speech was protected by qualified privilege.
    He also argues that the issue of whether the privilege was defeated by malice
    could not be decided on summary judgment and required the court to hear viva
    voce evidence to determine credibility.

[2]

We see no error in the motion judges decision.

[3]

The motion judge properly concluded that, even assuming the speech was
    defamatory, it was protected by qualified privilege. She found that the
    dominant motive of the impugned speech in the pamphlet distributed at the
    annual general meeting, and the excerpt, which she found was not distributed, was
    to provide a history of the bargaining unit; that the union had an interest and
    duty to respond to Mr. Weisleders allegations; and that the union members had
    a corresponding right or interest to receive the information. This was
    sufficient to establish qualified privilege.

[4]

In order to defeat the claim of privilege, Mr. Weisleder was required to
    establish malice and he failed to do so. Although the motion judge noted Ms.
    Burkes dislike of Mr. Weisleder, she found no evidence to refute the dominant purpose
    of the pamphlet or the excerpt. Nor was the occasion of privilege exceeded. The
    motion judge found that the words were not disproportionate to the occasion on
    which they were communicated. The impugned speech was balanced, bland and
    reasonable, particularly in light of the context of the inflammatory and
    vindictive words used by Weisleder over a number of years. These findings were
    open to the judge on the evidence and are entitled to deference from this
    court.

[5]

Although there are cases where the record before the court may be
    insufficient to decide the issue of malice on summary judgment (see
Baglow
    v. Smith
, 2012 ONCA 407, 110 O.R. (3d) 481, at paras. 31-32;
McDonald
    v. Freedman
, 2013 ONSC 6812 (Div. Ct.), at para. 68), in this case there
    was an ample evidentiary record before the motion judge that allowed her to
    make the findings she did. That record included transcripts of examinations for
    discovery of the key people at the union together with affidavits of other
    people and cross-examinations thereon.

[6]

The appellant raised the issue of reasonable apprehension of bias,
    seemingly based on the fact that the motion judge did not accept his position.
    There is no basis to raise this issue and no merit to it.

[7]

The appeal is dismissed. The respondent is entitled to costs of the
    appeal in the agreed amount of $15,000, inclusive of taxes and disbursements.

K. Feldman J.A.

Grant Huscroft J.A.

A. Harvison Young
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Whitchurch-Stouffville (Town) v.
    Bolender, 2020 ONCA 172

DATE: 20200306

DOCKET: C65414

Feldman, Huscroft and Harvison Young
    JJ.A.

BETWEEN

The Corporation of the Town of Whitchurch-Stouffville

Applicant (Respondent)

and

Paul Bolender, John Bolender,
    Bruce Bolender and Karen McConnell

Respondents (Appellants)

Al Burton, for the appellants

John Hart, for the respondent

Heard: March 2, 2020

On appeal from the judgment of Justice Anne
    Mullins of the Superior Court of Justice, dated April 24, 2018, with reasons
    reported 2018 ONSC 2621, 74 M.P.L.R. (5th) 263.

REASONS FOR DECISION

[1]

The appellants own two properties in the
    respondent municipality, one since the late 1960s and the other since the late
    1970s. They have carried on the business of harvesting peat moss and making
    triple mix on the properties, which are zoned for rural use. They have also, in
    the past, altered the sites without obtaining a permit as required by a site
    alteration by-law by having trucks come onto the property to dump fill and
    other materials.

[2]

The town obtained an interim and then a
    permanent injunction to stop these activities in 2013 and 2014, but the injunction
    was set aside by this court in July 2015 on the basis that a trial of the
    issues was required and such a trial was ordered.

[3]

After a 12-day trial, the trial judge rendered
    the following judgment:

1.

THIS COURT ORDERS
that the open storage of heavy equipment at 14547 Highway 48
    Whitchurch-Stouffville, Ontario constitutes a lawful non-conforming use at that
    address.

2.

THIS COURT ORDERS
that the Respondents, Paul Bolender, Karen McConnell, Bruce Bolender and John
    Bolender are hereby prohibited from extracting peat, assembling triple mix and
    receiving waste, and any activities incidental thereto, at 14857 Highway 48
    Whitchurch-Stouffville and 14547 Highway 48 Whitchurch-Stouffville.

3.

THIS COURT ORDERS
that the receipt and accumulation of waste or fill, the extraction of peat and
    the compilation of triple mix, and the incidental uses thereto, are not and
    have never been permitted uses under the various Zoning By-laws of the Town of
    Whitchurch-Stouffville at 14857 Highway 48 Whitchurch-Stouffville and 14547
    Highway 48 Whitchurch-Stouffville.

4.

THIS COURT DECLARES
that the Respondents Paul Bolender, Karen McConnell and Bruce
    Bolender have breached the provisions of the Site Alteration By-law of the Town
    of Whitchurch-Stouffville, being By-law 2017-017-RE.

5.

THIS COURT ORDERS
that Paul Bolender, Karen McConnell and Bruce Bolender be and the same are
    hereby restrained from contravening Section 2.2 of the Site Alteration By-law
    of the Town of Whitchurch-Stouffville, being By-law 2017-017-RE, which provides
    that no person shall undertake, cause, or permit any site alteration of any
Property
within the Town without the owner first receiving a permit issued under the
    said By-law by the Director, as defined therein, authorizing the Site
    Alteration.

6.

THIS COURT ORDERS
that costs may be spoken to by the parties.

[4]

Dealing first with paras. 4 and 5 of the order, which
    are relevant only to the North property, the appellants submit that there was
    no evidence of any activity being carried out on the property in 2017 and therefore
    no order could be made in respect of enforcing the 2017 by-law. The appellants
    also submit that by using evidence from 2012 and 2013 to substantiate an
    injunction that enforces a 2017 by-law, the trial judge gave the by-law
    retroactive effect, contrary to this courts decision in
Burlington (City)
    v. Burlington Airpark Inc.
, 2017 ONCA 420, 138 O.R. (3d) 309.

[5]

The respondent conceded in oral argument that para.
    4 of the order, which finds a breach of the 2017 by-law, cannot stand as no
    evidence of any such breach was led. We agree.

[6]

We do not agree, however, that any error was
    made in the order in para. 5. While the appellants discontinued their
    activities on the properties in response to the injunction and did not
    recommence pending the trial and disposition by the court, they did not give
    evidence at the trial that they did not intend to carry on their business on
    the North Property in the future.

We are satisfied that in those
    circumstances, the evidence of what occurred before the interim injunction was
    ordered in 2013 was the only relevant evidence that could be led on the trial
    that was ordered by this court.

[7]

Nor is there any improper retroactive effect by
    that approach. This is not a case like
Burlington
, in which the town
    wanted the property-owner to seek a permit based on a repealed by-law. In this
    case, the effect of para. 5 is to require the appellants to comply with the
    2017 by-law in the future by obtaining a permit before doing any site
    alteration, in the face of evidence that they failed to obtain the required
    permits, contrary to previous by-laws, in the past.

[8]

The appellants further argued that the trial
    judge erred in making the orders in paras. 1-3 by failing to find that the peat
    moss extraction, triple mix compilation, and related activities constituted
    legal non-conforming uses of the properties. They submit that the trial judge
    failed to apply the factors set out by the Supreme Court in
Saint-Romuald
    (City) v. Olivier
, 2001 SCC 57, [2001] 2 S.C.R. 898, at para. 39, for
    determining which non-conforming uses of property will nevertheless be legal.
    They argue that the placement of heavy equipment on the North Property in 1968,
    which the trial judge found was a legal non-conforming use, expanded into the
    other activities on both properties in a way which extended that legal
    protection to all the appellants uses of the lands.

[9]

We do not agree. The trial judge gave reasons
    for finding that the activities carried out by the appellants constituted
    industrial rather than rural or agricultural uses, that these activities were
    prohibited from their commencement by the by-laws, and that they were not an
    extension of the storage of heavy equipment, within the meaning of the
Saint-Romuald
factors.

Disposition

[10]

Given our conclusions above, it is unnecessary
    to address the appellants arguments regarding the quantification of damages had
    they succeeded on the merits. We also see no basis to interfere with the costs
    order below.

[11]

The appeal is therefore dismissed, subject to
    setting aside para. 4 of the order on consent. We order costs of the appeal to
    the respondent in the agreed amount of $22,500, inclusive of disbursements and
    HST.

K. Feldman J.A.

Grant Huscroft J.A.

Harvison Young J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Whittle v. Hill, 2020 ONCA 188

DATE: 20200306

DOCKET: C67120

Feldman, Huscroft and Harvison
    Young JJ.A.

BETWEEN

Edris Whittle

Plaintiff/Respondent

and

Merville Hill and Sedwick Hill

Defendants/Appellants

Alamgir Hussain and Parjot Singh
    Benipal, for the appellants

Kyle Armagon, for the respondent

Heard: March 6, 2020

On appeal from the judgment of Justice M.L.
    Edwards of the Superior Court of Justice, dated June 17, 2019.

APPEAL BOOK ENDORSEMENT

[1]

Counsel for the appellants did not appear. An
    associate of counsel attended later after calls were made to advise the court
    that counsel had no instructions to proceed with the appeal today as he was
    unable to communicate with the appellants.

[2]

The respondent asks the appeal to be dismissed
    with costs fixed at $6,000, inclusive of disbursements and HST. So ordered.