COURT OF APPEAL FOR ONTARIO

CITATION: Dancy v. Mason, 2019 ONCA 410

DATE: 20190517

DOCKET: C66002

Hoy A.C.J.O., Lauwers and Zarnett JJ.A.

BETWEEN

Margaret Elizabeth Dancy

Applicant (Respondent)

and

James Ian Allan Mason

Respondent (Appellant)

R. Steven Baldwin, for the appellant

Mark A. B. Frederick, for the respondent

Heard: May 9, 2019

On appeal from the order
    of Justice Gary W. Tranmer of the Superior Court of Justice, dated September
    11, 2018.

REASONS FOR DECISION

[1]

Dr. James Mason and Margaret Dancy separated on August 31, 2005, after
    approximately 19 years of marriage, preceded by two years of cohabitation. They
    had four children together. Ms. Dancy had a law degree when she met Dr. Mason.
    She mostly stayed home with the children until the youngest child was eight, at
    which point she undertook a teaching career. In 2008, the parties entered into
    a separation agreement that provided for spousal support. At that time, Dr.
    Masons line 150 gross income was $330,000 and Ms. Dancys was approximately
    $67,500. In 2010, they entered into an amending agreement for a higher level of
    support. In 2016, Ms. Dancy brought a motion seeking a further increase in
    spousal support, and Dr. Mason responded with a cross-motion to terminate spousal
    support as of July 1, 2018.

[2]

By order dated September 11, 2018, the motion judge increased the
    spousal support payable to Ms. Dancy from $9,300 to $12,000 per month. Using Dr.
    Masons full 2016 income of $632,827 as the input number, the motion judge
    described this support amount as just below the low end of the [Spousal
    Support Advisory Guidelines] range. He ordered this amount retroactive from
    October 1, 2016 until July 1, 2021, followed by a gradual step-down ($9,000 per
    month from August 1, 2021 to July 1, 2024 and $5,000 per month from August 1,
    2024 to July 1, 2026), after which spousal support will be terminated.

[3]

Dr. Mason appeals, and Ms. Dancy cross-appeals, that order. Ms. Dancy
    also seeks leave to appeal the motion judges order that each party bear his or
    her own costs of the variation motions.

[4]

At the time of the motion, Ms. Dancy was a math professor and
    coordinator at the Lawrence Kinlin School of Business. Her income in 2017 was
    $104,542. Dr. Mason is a medical doctor whose income in 2017 was $646,180. His
    income has increased substantially since the parties separation. Both have
    re-partnered. Ms. Dancy re-married a lawyer, who has seven children, and an
    income of approximately $200,000 a year. Dr. Mason has a partner with a modest
    income. Ms. Dancy and her new husband have a marriage contract that provides
    that neither of them will pay the other spousal support. The parties four
    children are now successfully independent.

[5]

The motion judge found that there had been a material change in
    circumstances since the parties amended their separation agreement on March 9,
    2010, such that the precondition in s. 17(4.1) of the
Divorce Act
, R.S.C.
    1985, c. 3, for making a variation order had been satisfied. He also found that
    there was an original compensatory basis for support for Ms. Dancy. Those
    findings are not at issue.

[6]

Dr. Mason argues that the motion judge should have terminated, or at
    least reduced, spousal support. He submits that the support he has paid since
    2005 has fully compensated Ms. Dancy for the economic disadvantages accruing from
    their 19-year marriage and its breakdown. At this point, Ms. Dancy is not
    suffering any economic hardship and is economically self-sufficient.

[7]

Dr. Mason argues that the motion judge erred in principle by failing to
    consider whether any economic disadvantage and hardship were
caused
by the marriage or its breakdown, as required by
    s. 17(7) of the
Divorce Act
. He submits that the causal link to any
    economic disadvantage and hardship  Ms. Dancys contribution to his career
    during their marriage by assuming a disproportionate share of childcare
    responsibilities  is now too remote. Similarly, he argues that the increase in
    his income relied upon to order the increased support is so far removed from
    Ms. Dancys contribution to his career during their marriage by assuming a disproportionate
    share of childcare responsibilities that he should not be required to share
    some of it with her. He further argues that the motion judges factual findings
    of economic disadvantage and hardship were unsupported by the evidence.

[8]

In turn, Ms. Dancy argues that, based on the length of the marriage and
    the parties current incomes, spousal support should have been increased to the
    mid-range of the Spousal Support Advisory Guidelines (SSAGs), namely $14,484
    per month, and that there should have been no step-down or predetermined
    termination of the spousal support. She says the order for a step-down and
    termination is premature. How, she asks, can the motion judge know that
    termination in five years is appropriate?

[9]

We begin by noting that the standard of review for family support
    decisions is significant deference. This is informed by both the discretion
    involved in making support orders and the importance of finality in family law
    litigation. An appeal court should only intervene where there is a material
    error, a serious misapprehension of the evidence, or an error of law. An appeal
    court is not entitled to overturn a support order simply because it would have
    made a different decision or balanced the factors differently:
Hickey v.
    Hickey
, [1999] 2 S.C.R. 518, at para. 12.

[10]

We
    are not persuaded that there is any basis for this court to overturn the
    variation order. The motion judge considered the evidence, including the
    parties original separation agreement, the objectives enumerated in s. 17(7)
    of the
Divorce Act
of an order varying spousal support, the applicable
    jurisprudence, and the SSAGs. He made no error in principle and made no
    palpable and overriding errors in his fact-finding process.

[11]

In
    considering any economic advantage or disadvantage to Ms. Dancy arising from
    the marriage or its breakdown, the motion judge made a number of findings,
    which are supported by the record: the spousal support being paid in this case
    is compensatory in nature; Dr. Masons medical career progressed uninterrupted
    as a result of the contributions made both by him and Ms. Dancy; her law career
    was interrupted by the birth of triplets, and the arrival of a fourth child,
    less than two years later; she was out of the workforce effectively from 1987
    to 1998, 11 years, as a result of assuming childcare responsibilities; and she
    then chose a teaching career, at least in part based on her childcare
    responsibilities.

[12]

He
    concluded that Ms. Dancy remains disadvantaged as a result of assuming the
    childcare responsibilities, being out of the workforce for 11 years, and
    narrowing her career options to teaching because of her childcare
    responsibilities. Contrary to Dr. Masons assertion, the motion judge
    specifically considered, and found, that there was a causal link between her relative
    disadvantage and the marriage.

[13]

Further,
    the motion judge found that, in addition to the disparity in their incomes, Dr.
    Mason had achieved a relatively higher standard of living, comparing the
    parties net worth, homes, savings and debt situation. Although she had
    contributed for 21 years to Dr. Masons highly successful medical career, Ms.
    Dancy will not share fully in his success.

[14]

The
    motion judge also found that while Ms. Dancy had achieved a measure of
    self-sufficiency, the level at which she is able to be self-sufficient is
    lower than Dr. Masons  which, as the motion judge noted,
Moge v. Moge
,
    [1992] 3 S.C.R. 813, at p. 876, directs is an appropriate consideration.

[15]

Importantly,
    the motion judge also appropriately took the parties original agreement into account
     an agreement based on Dr. Masons income of $330,000, contemplating an
    increase in support if his income rose by more than 5%, and not specifically
    contemplating an end date  and aimed to assess how to appropriately vary the
    parties agreement in light of the change in circumstances:
L.M.P. v. L.S.
,
    2011 SCC 64, [2011] 3 S.C.R. 775.

[16]

In
    the application judges view, the compensatory nature of the original spousal
    support order would no longer exist at the ordered termination date.

[17]

In
    light of all of these circumstances, the motion judges decision to increase
    support from $9,300 to $12,000 for a few years, reflecting Dr. Masons attainment
    of significantly higher earnings than what was contemplated at the time of the
    separation agreement, and then to gradually step-down support to a termination
    date coinciding with Dr. Masons anticipated retirement, was a reasonable
    exercise of his discretion.

[18]

We
    note that the amount ordered is not actually accurately described as just
    below the low end of the [SSAG] range. This is because the SSAGs suggest that
    for payor income over the $350,000 ceiling, there is also a range of appropriate
income
input from $350,000 to the payors actual income amount: see
    SSAGs at s.11.1-11.3 and this courts decision in
Halliwell v. Halliwell
,
    2017 ONCA 349, 138 O.R. (3d) 671. This means that for payor incomes above
    $350,000, in addition to the low, mid-point and high-end amounts suggested by
    the SSAGs, there is also a range of possible appropriate payor income inputs.
    In this case, for example, the motion judge could equally appropriately have
    selected a payor income of $491,000, namely the half-way point between $350,000
    and his total income of $632,827. This would have generated a monthly support
    range from $9,531 to $12,708, placing the actual amount awarded at the
    high-end of
that
range. This does not, however, change our
    assessment of the motion judges award as being well within his discretion.

[19]

For
    these reasons, the appeal and cross-appeal of the variation order are dismissed.

[20]

Turning
    to the costs order, Ms. Dancy argues that the motion judge erred in
    characterizing this as a matter of divided success, and, for that reason,
    ordering that each party should bear his or her own costs of the motions. She
    submits that she was substantially more successful before the motion judge than
    Dr. Mason and was entitled to costs of the motions. We are not persuaded that
    the motion judges costs order is clearly wrong. Leave to appeal costs is
    granted rarely and only in obvious cases where the party seeking leave
    convinces the court there are strong grounds upon which the appellate court
    could find that the judge erred in exercising his discretion:
Brad-Jay
    Investments Ltd. v. Szijjarto
(2006), 218 O.A.C. 315 (C.A.), at para. 21,
    leave to appeal refused, [2007] S.C.C.A. No. 92. Leave to appeal the motion judges
    costs order is denied.

[21]

The
    parties agreed that the successful party before this court would be entitled to
    costs in the amount of $17,500, inclusive of HST and disbursements. In our
    view, success before this court was divided. Accordingly, neither party is
    entitled to costs.

Alexandra Hoy
    A.C.J.O.

P. Lauwers J.A.

B. Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Dar v. The Yards Corporation, 2019 ONCA 362

DATE: 20190503

DOCKET: C65907

Doherty, Rouleau and Brown JJ.A.

BETWEEN

Mohammad Younas Dar

Plaintiff (Appellant)

and

The Yards Corporation
and Mazhar Hussain

Defendants (Respondent)

Harinder Dhaliwal, for the appellant

Gasper Galati and Dina Peat, for the respondent

Heard: May 2, 2019

On appeal from the judgment of Justice OConnell of the
    Superior Court of Justice, dated August 23, 2018.

APPEAL BOOK ENDORSEMENT

[1]

We defer to the motion judges finding
    that, having regard to the circumstances surrounding the making of the
    agreement and the relationship between the parties, there is nothing that would
    justify a finding of unconscionability.

[2]

Even if the document purporting to
    identify the damages suffered by the respondent (vendor) was properly received
    by the motion judge, it obviously overstated the damages suffered by the
    vendor. However, the damages were nonetheless significant and beyond the mere
    difference in the purchase price. We cannot say that the amount forfeited by
    the appellant (purchaser) under the agreement was out of all proportion to the
    damages suffered. The appellant has not met the criteria laid down in
Redstone
    Enterprises Ltd. v. Simple Technology Inc.
, 2017
    ONCA 282.

[3]

The respondents cross-motion for
    summary judgment was properly granted. The appeal is dismissed. Costs to the respondent
    in the amount of $9,000, inclusive of disbursements and relevant taxes.


COURT OF APPEAL
    FOR ONTARIO

CITATION: de Jocas v. Moldow Enterprises
    Inc., 2019 ONCA 389

DATE: 20190513

DOCKET: C66085

Watt, Pardu and Nordheimer JJ.A.

BETWEEN

Michel de Jocas,
    Catherine de Jocas, David Carson, Ronald Piesanen and Linda Piesanen

Applicants (Appellants)

and

Moldow Enterprises Inc.,
    833633 Ontario Limited and Alena Ravens

Respondents (Respondents)

Brian N. Radnoff and Lindsay Woods, for the appellants

Bruce Bussin, for the respondents

Heard: April 29, 2019

On appeal from the order of Justice R. Cary Boswell of
    the Superior Court of Justice dated September 28, 2018, with reasons reported
    at 2018 ONSC 5715.

REASONS FOR DECISION

[1]

The appellants appeal from the order of the application judge that determined
    that the respondents had not substantially interfered with an easement in
    favour of the appellants, assuming the easement to be valid.

[2]

For the reasons that follow, we would allow the appeal, set aside the
    order of the application judge and remit the matter to the Superior Court of
    Justice for a fresh hearing.

Background

[3]

The background facts are not really in dispute. The appellants, the
    respondents, and one other person not party to this litigation, own five
    neighbouring cottage properties that border Soyers Lake in the County of Haliburton.
    The cottages run generally in a north to south direction, with Soyers Lake lying
    to the east. The de Jocas property is the most northerly property, then the respondents,
    then the Piesanens, then the Sayewichs and, finally, the Carsons. To the
    west of these cottage properties is a right of way known as the Between Lakes
    Trail.

[4]

In the past, in order to access these five cottages, the cottagers used
    a road, known as Brewers Close, which is claimed to be the location of an easement
    over the five properties. Brewers Close runs in a semi-circle from the Between
    Lakes Trail through the five cottage properties and then returns to Between
    Lakes Trail. For clarity, attached to these reasons as Appendix A is a diagram
    showing the location of the five cottage properties, the route of Between Lakes
    Trail and the former route of Brewers Close.

[5]

In the Fall of 2015, the respondents decided to alter the route of
    Brewers Close as it crossed their property. They sought the approval of the
    other property owners to this change. Initially the respondents had the consent
    of the de Jocas family and the Piesanen family, although they acknowledge that
    the Piesanens subsequently withdrew their consent. They also had the consent of
    the Sayewichs, who did not participate in this application.

[6]

In any event, notwithstanding that they did not have the complete
    agreement of all of the other property owners to change the route of Brewers
    Close, the respondents went ahead and altered the route. The respondents also
    blocked the old route along the lot lines between their property and the de
    Jocas property and between their property and the Piesanens. Indeed, it
    appears that the respondents actually used a small portion of the Piesanens
    property to complete the new route.

[7]

A dispute ensued between the appellants and the respondents over the
    alterations made to Brewers Close. The appellants commenced an application for
    an injunction prohibiting the respondents from obstructing their rights of way
    over Brewers Close and for a mandatory order requiring the respondents to
    remove the boulders and trees that they had used to block the old route.

[8]

In response, the respondents commenced a counter-application in which
    they sought a declaration that the right of way known as Brewers Close was
    invalid because of uncertainty and vagueness. In the alternative, the
    respondents sought a declaration that their alteration of the route of Brewers
    Close did not result in substantial interference with the use of the right of
    way by the appellants.

The decision below

[9]

The application judge did not make any determination as to the validity
    of the easement known as Brewers Close. He said that he was unable to do so
    based on the evidentiary record that was before him. However, the application
    judge did determine that the easement was not invalid on the basis of vagueness
    or uncertainty. Then, assuming the easement was valid, the application judge
    concluded that there was no substantial impairment of the use of the easement
    arising from the actions of the respondents.

Analysis

[10]

In
    our view, the evidentiary record before the application judge was insufficient
    to permit him to reach either of the conclusions that he did. Indeed, the evidentiary
    record did not allow for any of the necessary findings that would sustain any
    of the conclusions that the parties sought to obtain from the court. As the
    application judge noted at para. 35(h) of his reasons, the current deeds speak
    of an existing semi-circular driveway and there is no way to tell if the
    roadway/driveway now in existence is in the same place as the driveway in
    existence at the time the easements were purportedly created.

[11]

As
    the application judge noted, at para. 28:

On the record before me I am not able to make that
    determination [i.e. the validity of the easements]. I have been provided, in
    terms of title documents, only the parties current deeds. I am unable to
    effectively declare the Applicants easements to be valid without being able to
    trace the easements back to their roots.

[12]

Evidence
    ought to have been placed before the court as to the title history of the
    properties involved. In particular, evidence ought to have been adduced as to
    the genesis of Brewers Close and, to the degree that it was possible to do so,
    the precise dimensions and location of it, as reflected in the title documents
    or as established by extrinsic evidence.

[13]

As
    this court noted in
Fallowfield v. Bourgault
(2003), 68 O.R. (3d) 417
    (C.A.), at para. 10:

Where an easement is created by express grant, the nature and
    extent of the easement are to be determined by the wording of the instrument
    creating the easement, considered in the context of the circumstances that
    existed when the easement was created. This principle is set out in Halsbury's
    Laws of England, 4th ed., vol. 14 (London: Butterworths, 1980), at p. 26, para.
    54:

The nature and extent of an easement created by express
    grant primarily depend upon the wording of the instrument. In construing a
    grant of an easement regard must be had to the circumstances existing at the
    time of its execution; for the extent of the easement is ascertainable by the
    circumstances existing at the time of the grant and known to the parties or
    within the reasonable contemplation of the parties at the time of the grant,
    and is limited to those circumstances.

[Footnotes omitted]

[14]

As
    the application judge also pointed out, it was unclear on the record whether
    Brewers Close was described in the original grants of the properties or whether
    it arose subsequently: at para. 25. Indeed, it is possible that Brewers Close
    was never referred to in any of the title documents prior to the title
    documents by which the parties here obtained title to their properties. It may
    be that, prior to that time, Brewers Close was simply a road that existed
    without any formal recognition. In that case, extrinsic evidence might be
    required to establish the extent of Brewers Close at the time of the original
    grant.

[15]

While
    the application judge was alert to these deficiencies in the record, unfortunately,
    it does not appear that he raised his concerns with counsel. Rather, he said,
    in his reasons at para. 29:

Having said that, the absence of evidence demonstrating a
    sufficient root of title was not an argued issue during the hearing of the
    application. I was essentially, though not explicitly, asked to assume that the
    easements can be traced back to an original grant and, I gather, that the
    language used in the current deeds has simply been passed down from deed to
    deed.

[16]

The
    application judge then went on to consider whether the easements were vague for
    uncertainty and, if not, whether the respondents had substantially interfered
    with the appellants use of the easements. In light of the deficiencies in the
    record, the application judge ought not to have proceeded to deal with those
    issues because, without a proper evidentiary foundation, any conclusions on
    those issues would be potentially flawed. Without knowing the extent of the
    easement, as established by the original grant, one could not determine whether
    there was substantial interference with that easement.

[17]

Given
    the deficiencies in the evidentiary record, we see no alternative but to set
    aside the application judges order and return the matter to the Superior Court
    of Justice for a fresh hearing, or a trial of the issues, as the parties may be
    advised.

[18]

There
    are many other questions which need to be examined to determine whether there
    is or is not a valid easement in favour of the cottagers.  All agree that the
    language describing the easement in the existing deeds is very poor.  Does the
    language of the grant of the easement to the Piesanens even give them an
    easement, given that they are located south of the respondents property?  Does
    the deed in favour of the respondents make their property subject to easements
    in favour of the other cottagers?  If not, what are the consequences of that
    absence?  Does the
Registry Act
R.S.O. 1990, c. R.20 have anything to
    say about the expiry of easements in those circumstances?  Was there compliance
    with any part lot subdivision control provisions at the time of the original
    grant?  If not, the grant of the easement may not be valid. (See
Mihaylov
    v. 1165996 Ontario Inc
., 2017 ONCA 116).

[19]

Finally,
    of course, is the question whether, if the easement is established, the actions
    of the respondents constitute a substantial interference with the rights under
    it, in light of this courts decision in
Weidelich v. de Koning
, 2014
    ONCA 736, 122 O.R. (3d) 545.

Conclusion

[20]

The
    appeal is allowed and the order of the application judge is set aside. The
    matter is remitted to the Superior Court of Justice for a fresh hearing or for
    a trial of the issues. In light of the problems with the evidentiary record, for
    which all parties bear responsibility, we would not make any order regarding
    the costs of the appeal or of the original application.

David Watt J.A.
G. Pardu J.A.

I.V.B. Nordheimer J.A.

APPENDIX A


COURT OF APPEAL FOR ONTARIO

CITATION: DeBon v. Hillfield Strathallan College, 2019 ONCA
    409

DATE: 20190517

DOCKET: C66066

Sharpe, Pepall and Roberts JJ.A.

BETWEEN

Kimberly DeBon

Plaintiff (Appellant)

and

Hillfield Strathallan College

Defendant (Respondent)

C. Andrew Haber and Christopher J. Haber, for the
    appellant

William P. Dermody and Heather E. Watson, for the
    respondent

Heard: May 14, 2019

On appeal from the
    judgment of Justice Emery of the Superior Court of Justice, dated September 28,
    2018.

REASONS FOR DECISION

[1]

The appellants claim for constructive dismissal from
    her employment as a teacher at a private school was dismissed by way of summary
    judgment. The appellant alleged that the respondent school altered the terms of
    her employment contract by failing to protect her from a confrontation with the
    parents of a student over a mark the appellant had given the student, by
    undermining her authority by having assignments read and marked by another
    teacher, and by the principal assigning passing grades to students who had
    failed to complete all assignments.

[2]

The motion judge found that the appellant had failed to
    discharge the evidentiary burden of establishing a genuine issue for trial.

[3]

The appellant acknowledged that the motion judged
    applied the correct legal test for constructive dismissal. We agree. We are not
    persuaded that he erred in law or made a palpable and overriding error of fact
    in dismissing the appellants claim or that there are any issues of credibility
    requiring a trial.

[4]

There is no evidence to support the allegation that the
    school altered the appellants terms of employment or failed to follow any
    policy with respect to the confrontation with the parent. No one from the school,
    except the appellant, was involved in the confrontational meeting. The
    appellant did not anticipate that the parent would be present at the meeting
    and it is difficult to see how the school could have done so. When the
    appellant reported the incident to the principal, he offered to meet to discuss
    the situation. There is no evidence that the appellant asked anyone at the
    school to sanction or censure the parent for her conduct at the confrontational
    meeting. The schools Human Resources Manager offered to meet with the
    appellant to discuss the process of making a complaint of violence and to
    determine a policy for moving forward with all of the issues you identified.
    The appellant postponed any meeting and then announced that she was leaving the
    school.

[5]

The schools response to the appellants complaint
    regarding the confrontational meeting with the parent was measured and
    reasonable. While the confrontation with the parent was undoubtedly unpleasant
    and unsettling for the appellant, it is difficult to see what the school could
    have done to prevent or mitigate the confrontation. We see no error in the
    motion judges conclusion that this incident and the way the school handled it
    did not amount to a breach of any school policy or of the appellants contract
    of employment.

[6]

There is no evidence to suggest that having another
    teacher read and grade assignments was contrary to school policy. Moreover, the
    appellant reluctantly agreed to the process and, as the mark assigned by the
    appellant was confirmed, she was supported rather than being undermined. In his
    communications with the parents and the student, the principal was supportive
    of the appellants skill and integrity as a teacher. He assured the appellant
    that he would advise the student to take advantage of the appellants teaching
    excellence. He clearly set out the strategy he proposed to follow with the
    parents to resolve their concern regarding bias.
The school never
    intimated or suggested that the appellant change the grade she had assigned.
The principal admonished the student for her attitude
    and negative body language when dealing with the appellant and encouraged the
    student to take a more positive attitude towards the appellant and the courses
    she was teaching. He made it clear that if the disputed mark was confirmed by
    the second teacher, that would put an end to the allegation of bias and the
    mark was confirmed.
There is no evidence that the school implemented the
    limited co-marking strategy as a permanent measure.

[7]

Nor is there evidence to support the contention that
    the principal altered the terms of the appellants employment when he assigned
    final passing grades to students who had not completed all assignments. Two of
    these incidents preceded the incident discussed above that forms the core of
    the appellants case. Both of these involved students who had experienced
    health issues that prevented them from completing all assignments. The
    principal did not alter a grade assigned by the appellant but, rather, assigned
    a final grade based on the grade given by the appellant for the work that had
    been completed. The appellant failed to adduce any evidence that the principal
    had acted contrary to school policy or to his statutory authority by assuming responsibility
    for assigning the final grade in these circumstances. The third incident
    involved the schools request that the appellant assign a predictive mark to
    a student needed so that the student could apply for a program. The appellant
    did not assign the predictive grade and no further action was taken.

[8]

In our view, the motion judges conclusion, at para.
    80, that a reasonable person with a dispassionate perspective would not view
    the teaching environment at HSC to be untenable for the appellant and that the
    evidence did not establish that the school had made the workplace poisonous for
    her is amply supported by the record.

[9]

Accordingly, the appeal is dismissed, w
ith costs
    to the respondent fixed in the agreed amount of $15,000, inclusive of
    disbursements and taxes.

Robert
    J. Sharpe J.A.

S.E.
    Pepall J.A.

L.B.
    Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Devathasan v. Ablacksingh, 2019 ONCA 386

DATE: 20190509

DOCKET: C66323

Hoy A.C.J.O., Lauwers and Zarnett JJ.A.

BETWEEN

Gobinathan Devathasan

Appellant (Plaintiff)

and

Rohit Ablacksingh (A.K.A. Roy Blacksingh, A.K.A.
    Roy Singh), Cinro Investments Inc., Cinro Resources Inc., John Doe, Jane Doe,
    and Doe Corporation

Respondent (Defendant)

Norman Groot and Ashley Ferguson, for the appellant

No one appearing, for the respondent

Heard: May 6, 2019

On appeal from the judgment of Justice Nishikawa of the
    Superior Court of Justice, dated December 17, 2018.

APPEAL BOOK ENDORSEMENT

[1]

Mr. Ablacksingh was not in attendance
    at 10:00 a.m., when this appeal was scheduled to be heard. Mr. Groot, for Devathasan,
    prefers that this matter be adjourned to be heard together with
Boroni
    v. Polidoro
(C66325).

[2]

We are in agreement that it is
    desirable that the two appeals be heard together. Accordingly, this matter is adjourned
    to be rescheduled with the
Boroni
matter.


COURT OF APPEAL FOR ONTARIO

CITATION: Donovan v. Sherman Estate, 2019 ONCA 376

DATE: 20190508

DOCKET: C65874

Doherty, Rouleau and Hourigan JJ.A.

BETWEEN

Kevin Donovan

Applicant (Appellant)

and

The Estate of Bernard Sherman and the Trustees of
    the Estate and the Estate of Honey Sherman and the Trustees of the Estate

Respondents (Respondents in Appeal)

Kevin Donovan, appearing in person

Timothy Youdan and Chantelle Cseh, for the respondents

Heard: April 29, 2019

On appeal from the order of Justice S. F. Dunphy of the
    Superior Court of Justice, dated August 2, 2018, with reasons reported at 2018
    ONSC 4706.

REASONS FOR DECISION

[1]

On June 29, 2018, the motion judge made
ex parte
orders sealing
    certain court files relating to the Estates of Bernard and Honey Sherman. In
    July 2018, the Toronto Star Newspapers Ltd. (Toronto Star) and one of its
    reporters, Kevin Donovan, brought a motion to terminate or vary the sealing
    orders. After hearing argument, the motion judge, with minor non-contentious
    exceptions, dismissed the motion and preserved the sealing orders. The motion
    judge did, however, provide that the sealing orders would expire in two years. His
    order, dated August 2, 2018, is appealed to this court.

[2]

Both the Toronto Star and Mr. Donovan were appellants. However, on
    consent, the Toronto Star has been removed from the proceedings.

[3]

Mr. and Mrs. Sherman were murdered in their home on or about December
    15, 2017. Both were prominent Toronto residents.

[4]

The court files that have been ordered sealed relate to applications
    brought for the appointment of estate trustees in respect of the estates of
    both Bernard and Honey Sherman. The motion materials in support of the sealing
    orders are also covered by the sealing orders. But for the sealing orders, all
    of the material would be available for public perusal under the open court
    principle.

[5]

As the motion judge acknowledged, sealing orders and other kinds of
    orders that restrict public access to the court and court proceedings are very
    much the exception. The party seeking a sealing order carries the burden of
    demonstrating the need for the order:
R. v. Mentuck
, [2001] 3 S.C.R.
    442, at para. 38. A judge considering an
ex parte
motion for a sealing
    order must subject the supporting material to careful scrutiny, recognizing
    both the fundamental rights at issue and the disadvantage inherent in an
ex
    parte
proceeding.

[6]

The motion judge correctly identified the test to be applied when deciding
    whether to grant a sealing order: Reasons, para. 13(d). That test has two
    parts. First, the party seeking the order must show that the order is necessary
    to prevent a serious risk to an important public interest which cannot be
    protected by other reasonable alternative methods. Second, the party seeking
    the order must establish that the salutary effects of the sealing order
    outweigh its deleterious effects, including the negative effects on the right
    to freedom of expression and other public interests served by open and
    accessible court proceedings:
Atomic Energy of Canada v. Sierra Club of
    Canada
, [2002] 2 S.C.R. 522, at para. 53.

[7]

If the party seeking the order cannot show the requisite necessity required
    of the first stage of the inquiry, a sealing order cannot be granted and there
    is no need to move on to the balancing or proportionality component of the
    test. When determining whether the moving party has shown that the sealing
    order is necessary, the nature and significance of the public interest in
    access to the material is irrelevant:
H. (M.E.) v. Williams
, 2012 ONCA
    35, at paras. 31-32.

[8]

The motion judge pointed to two concerns which satisfied him that
    sealing orders were necessary. First, he referred to the need to protect the
    privacy and dignity of the victims of violent crime and their loved ones.
    Second, he referred to the reasonable apprehension of risk to those who have an
    interest in receiving or administering the assets of the deceased: Reasons,
    paras. 22-24.

[9]

In his submissions to this court, counsel for the respondents relied on
    both factors identified by the motion judge, but argued that the risk of
    physical harm to certain individuals was the primary justification for the sealing
    orders.

[10]

Members
    of the Sherman family and people closely associated with the Shermans
    understandably want to keep family and estate-related matters private. It is
    equally understandable that, having gone through the horrors of a sudden and
    violent death of loved ones, they want to grieve in private outside of the
    public spotlight. However, the kind of interest that is properly protected by a
    sealing order must have a public interest component. Personal concerns cannot,
    without more, justify an order sealing material that would normally be available
    to the public under the open court principle:
Sierra Club v. Canada
,
    at para. 55;
H. (M.E.) v. Williams
, at para. 25.

[11]

Considering
    the motion judges reasons as a whole, we are satisfied that he did treat the privacy
    and dignity of the victims and their loved ones as an important interest,
    warranting the protection of a sealing order: reasons, para. 22. Those concerns
    have relevance on a sealing motion only if the second stage of the inquiry is
    reached and the court is called upon to balance the salutary effects of the
    sealing order against its deleterious effects.

[12]

The
    second interest identified by the motion judge, the personal safety of
    individuals or an identifiable group of individuals, is no doubt an important public
    interest that can, in an appropriate case, warrant a sealing order. The evidence
    offered in support of the order must, however, justify a finding of a real
    risk.

[13]

The
    evidence put forward by the respondents on the motions consisted of a single
    13-paragraph affidavit that addressed the potential risk to persons identified
    in the estate files in a single paragraph. That paragraph contained conclusory assertions
    rather than statements of fact. In our view, there was no evidence that could
    warrant a finding that disclosure of the content of the estate files posed a
    real risk to anyones personal safety.

[14]

The
    motion judge reasoned that because the identity of the murderers was unknown
    and their motive, if any, unknown, it followed that anyone with an interest in
    receiving or administering the assets of Bernard or Honey Sherman was under a
    reasonable apprehension of harm from the murderers. The motion judge put it
    this way, at para. 24:

The necessary inferences can be drawn from the known facts and
    the unknown ones. The willingness of the perpetrator(s) of the crimes to resort
    to extreme violence to pursue whatever motive existed has been amply
    demonstrated. The risk of harm is foreseeable and the foreseeable harm is
    grave. I have no difficulty in concluding that the current uncertainty gives
    rise to a reasonable apprehension of risk on behalf of those known to have an
    interest in receiving or administering the assets of the deceased.

[15]

Nothing
    in the material filed on the motion to seal the files permits any informed
    assessment of what motive, if any, there appeared to be for the murders. Nor
    was there any evidence that would allow the motion judge to infer that the
    motive was unknown. There was no suggestion in the material that the affiant
    knew anything about the state of the police investigation or any other
    investigation that may be underway in respect of the murders.

[16]

In
    our view, the motion judges analysis comes down to the proposition that
    because the Shermans were murdered by some unknown person or persons, for some
    unknown motive, individuals named as beneficiaries in their estates or as
    administrators of their estates are at risk of serious physical harm. With
    respect, the suggestion that the beneficiaries and trustees are somehow at risk
    because the Shermans were murdered is not an inference, but is speculation. It
    provides no basis for a sealing order.

[17]

For
    the reasons set out above, we are satisfied that the sealing orders must be set
    aside. Counsel for the respondents asked for the opportunity to make further
    submissions in respect of possible redactions from the files, were we to hold
    that the sealing orders should be set aside. We have considered that request
    but since, in our view, the application fails at the necessity stage of the
    analysis, there can be no basis for any redactions.

[18]

The
    order of Dunphy J., dated August 2, 2018, is set aside. This courts order will
    take effect 10 days after the release of these reasons. No costs.

Doherty J.A.

Paul Rouleau J.A.

C.W. Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Downey v. Arey, 2019 ONCA 450

DATE: 20190530

DOCKET: C66108

Doherty, Nordheimer and Harvison Young JJ.A.

BETWEEN

Heather Downey and
    Francesco Marchese a.k.a. Frank Marchese

Plaintiffs (
Respondents
)

and

Douglas Alexander Arey

Defendant (
Appellant
)

Alan Butcher, for the appellant

Domenic Saverino, for the respondents

Heard: May 24, 2019

On appeal from the judgment of
    Justice Kofi Barnes of the Superior Court of Justice, dated October 2, 2018,
    with reasons reported at 2018 ONSC 5832a.

REASONS FOR DECISION

[1]

The motion judge granted summary judgment to the respondents enforcing
    an oral agreement of purchase and sale between the respondents and the
    appellant. He directed that the property owned by the appellant be transferred
    to the respondents for $750,000, pursuant to the terms of the agreement. He
    also ordered the appellant to reimburse the respondents for certain renovation-related
    costs. At the conclusion of the hearing, we allowed the appeal with reasons to
    follow. We now provide those reasons.

[2]

The appellant alleges that the motion judge made several errors in
    arriving at his decision. First and foremost, the appellant contends that the
    crucial factual question, that is, whether the parties had agreed to extend the
    closing date of the agreement of purchase and sale when it did not close as
    contemplated, could not be properly resolved by way of a summary judgment
    motion.

[3]

We agree.

[4]

The parties entered into an oral agreement, pursuant to which the
    appellant agreed to sell his home to the respondents. Ms. Downey is the
    appellants daughter and Mr. Marchese is Ms. Downeys partner.

[5]

The agreement provided for a sale price of $850,000. There was, however,
    a disagreement over the actual price to be paid by the respondents. The
    respondents contended that the appellant had agreed to gift $100,000 to his
    daughter, Ms. Downey, resulting in a net purchase price of $750,000. The
    appellant agreed that he had offered the gift of $100,000 to his daughter, but
    contended that the $850,000 purchase price was the net price after the gift.

[6]

The agreement for the sale of the property was scheduled to close on
    August 31, 2016. The respondents were not in a position to close the
    transaction on that date.

[7]

The appellant contended that there was no agreement to extend the
    closing date beyond August 31, 2016. He indicated that he was initially prepared
    to complete the transaction on the same terms, but when the transaction did not
    close for several months and the value of the property increased significantly,
    he determined that he was no longer prepared to sell it to the respondents for
    $850,000, but offered to sell it at a higher price.

[8]

The respondents maintained, in their pleadings and in their affidavits
    on the summary judgment motion, that there was a specific agreement to extend
    the closing date to May 31, 2017. They contended that the appellant failed to
    close as promised.

[9]

The motion judge found, at para. 33:

In considering the entire evidentiary record, including the
    portions referred to above, I conclude on balance, that on August 21, 2016 the
    parties, by oral agreement, agreed to extend the May 2016 agreement to an
    unspecified date. The purchase price of $850,000 (minus the $100,000 gift)
    remained unchanged.

[10]

The
    fate of the respondents claim turned in large measure on whether there was an
    agreement to extend the closing date of the agreement of purchase and sale. The
    resolution of that question depended, to a large degree, on an assessment of
    the reliability and credibility of the competing versions of the relevant
    events put before the motion judge by the parties. As both the agreement and
    the alleged extension of the agreement were said to be oral, there was little
    by way of documentary evidence to assist in determining this crucial factual
    question.

[11]

The
    motion judge, at para. 20, acknowledged that there were factual disagreements which
    raised genuine issues for trial. He went on, however, to hold that he could
    grant summary judgment using the enhanced fact-finding powers found in r.
    20.04(2.1) and (2.2). It would appear that his reference to r. 20.04 (2.2) is
    in error since the motion judge did not conduct any mini trial.

[12]

Rule
    20.04(2.1) identifies two fact-finding powers that could have been used by the
    motion judge to address the factual disputes raised on this motion. A motion
    judge can both evaluate credibility and draw reasonable inferences from the
    evidence on a r. 20 motion, unless the interests of justice require that those
    powers be exercised only at trial.

[13]

The
    motion judge did not make findings of fact based on credibility determinations.
    His finding that there was an agreement to extend the closing date to some
    unspecified date in the future is inconsistent with the evidence of both the
    appellant and the respondents. It also runs contrary to the pleadings of both
    parties. On this record, the motion judges finding that there was an agreement
    to extend the closing date to some unspecified date in the future, cannot be
    explained by reliance on any assessment, positive or negative, of the
    credibility of either the respondents or the appellant.

[14]

Turning
    to the second fact-finding power which permits the drawing of reasonable
    inferences from primary facts, it would appear that the motion judge inferred
    that there was an agreement to extend the closing to some unspecified future
    date. In our view, the evidence before the motion judge did not permit that
    inference. The events referred to by the motion judge as the basis for the
    inference, for example the payment of rent by the respondents after the first
    closing date passed, were essentially neutral in respect of whether there was
    any extension of the closing date. Those events could only support the
    inference drawn by the motion judge after a consideration of the very different
    explanations offered by the parties for those events, and a determination of
    the credibility of the witnesses offering those competing versions of events.
    As indicated above, the motion judge did not purport to make credibility
    assessments with respect to the explanations put forward. Nor, in our view,
    could he properly do so on this record.

[15]

We
    are satisfied that this was not a case in which the motion judge could, through
    the inference-drawing power provided in r. 20.04(2.1), make the necessary
    findings to determine the claim. His finding that the parties had agreed to
    extend the closing date to some unspecified date in the future is not a
    reasonable inference on this record. It is unsupported in the evidence. The
    motion judges finding constitutes a palpable and overriding error,
    necessitating appellate intervention.

[16]

Our
    conclusion that the motion judge could not properly make the factual
    determination he did on the motion compels the conclusion that the motion
    judges order granting summary judgment must be set aside. Although the
    appellant also moved for summary judgment, this is equally not a case for
    summary judgment in favour of the appellant. This is a case for a trial.

[17]

Given
    our finding on the main ground of appeal, it is unnecessary to address the
    other arguments. We would, however, observe that, as the alleged agreement of
    purchase and sale was based on an oral agreement between the parties, there is
    potentially a serious issue to be considered under s. 4 of the
Statute of
    Frauds Act
, R.S.O. 1990, c. S.19. There is also a serious issue with
    respect to the availability of specific performance as a remedy, even if the
    agreement is established. Neither of these issues were addressed by the motion
    judge. Both issues and any other relevant issues may, of course, be raised at
    the trial.

[18]

The
    appellant is entitled to his costs on the motion in the amount of $20,000,
    inclusive of disbursements and relevant taxes. He is also entitled to his costs
    on the appeal, also fixed at $20,000, inclusive of disbursements and relevant
    taxes.

Doherty J.A.

I.V.B. Nordheimer
    J.A.

Harvison Young J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Drummond v. Cadillac Fairview
    Corporation Limited, 2019 ONCA 447

DATE: 20190530

DOCKET: C65825

Doherty, Rouleau and Brown JJ.A.

BETWEEN

Stephen
    Drummond

Plaintiff (Respondent)

and

The Cadillac Fairview
    Corporation Limited

Defendant (Appellant)

Larry P. Reimer, for the appellant

Shane Katz and Dilenthi Warakaulle, for
    the respondent

Heard: May 2, 2019

On appeal from the judgment of Justice Paul M. Perell of the Superior
    Court of Justice, dated July 26, 2018, with reasons reported at 2018 ONSC 4509.

Brown J.A.:

I.        OVERVIEW

[1]

This appeal raises three issues: (i) the
    fairness of granting summary judgment against the moving party when the
    responding party has not brought a cross-motion for such relief; (ii) the use
    of hearsay evidence on summary judgment motions; and (iii) the liability of a
    retail mall manager under s. 3(1) of the
Occupiers Liability Act
, R.S.O. 1990, c. O.2.

[2]

On August 23, 2015, the respondent, Stephen
    Drummond, visited the Fairview Mall in Toronto with his fiancé and two
    daughters. The appellant, The Cadillac Fairview Corporation Limited (Cadillac
    Fairview), is the property manager for the Mall.

[3]

While in the Malls food court, Mr. Drummond
    tripped over a skateboard, which a 12-year old boy had brought into the Mall.
    He suffered injuries.

[4]

In September 2016, Mr. Drummond started this occupiers
    liability action against Cadillac Fairview for general and special damages in
    the amount of $1 million. Cadillac Fairview defended, denying that it was
    negligent and asserting a defence of contributory negligence.

[5]

Following the examination for discovery of Mr.
    Drummond, Cadillac Fairview moved for summary judgment dismissing the action,
    in part on the ground that there is no genuine issue for trial with respect to
    the liability of Cadillac Fairview. Mr. Drummond did not bring a cross-motion
    for judgment in his favour.

[6]

Nevertheless, the motion judge granted judgment
    to Mr. Drummond and directed a trial of the assessment of damages in the event
    the parties could not settle that issue (the Judgment).

[7]

Cadillac Fairview appeals. It advances three
    grounds of appeal.

II.       FIRST GROUND OF APPEAL: THE JUDGMENT WAS THE PRODUCT OF AN
    UNFAIR PROCESS

[8]

The motion judge described the positions of the
    parties regarding the possible dispositions of the motion at para. 49 of his
    reasons:

In resisting
    Cadillac Fairviews summary judgment motion, Mr. Drummond submitted that there
    were genuine issues for trial and that the case at bar was inappropriate for a
    summary judgment. I disagree, but happily for Mr. Drummond, my decision is that
    he is entitled to a summary judgment on liability to be followed by an
    assessment of damages.

[9]

Cadillac Fairview submits that by granting a
    judgment not requested by the plaintiff by way of a cross-motion  colloquially
    known as a boomerang summary judgment  the motion judge acted unfairly in
    two ways. First, he did not give Cadillac Fairview notice of its potential
    litigation risk on the motion and a fair opportunity to meet that risk:
Rodaro
    v. Royal Bank
(2002), 59 O.R. (3d) 74 (Ont. C.A.), at para. 61. Second, to
    grant judgment in favour of the plaintiff, the motion judge was required to
    deal with Cadillac Fairviews pleaded contributory negligence defence. The
    motion judges reasons are devoid of any treatment of that defence or any explanation
    about why judgment was granted to the plaintiff in the face of that defence.

[10]

In response, Mr. Drummond submits that cases
    exist in which the court has granted judgment in favour of the party responding
    to a summary judgment motion in the absence of a cross-motion by the responding
    party, starting with the Supreme Court of Canada decision in
Manulife Bank
    of Canada v. Conlin
, [1996] 3 S.C.R. 415, at paras. 70-71. Consequently,
    the motion judge did not err in granting the Judgment in favour of the
    plaintiff.

[11]

To dispose of this appeal, it is not necessary
    to explore the scope of the principle that flows from the
Manulife
case
    or the specific circumstances in which it might fairly be applied. Suffice it
    to say, that whenever a court grants summary judgment  whether in response to
    a notice of motion, cross-motion or otherwise  it must firmly keep in mind
    that summary judgment motions are designed to do more than make efficient use
    of court resources. They are intended to achieve fair and just results. In
Hryniak
    v. Mauldin
, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court emphasized
    that granting summary judgment under r. 20 of the
Rules of Civil
    Procedure

requires that the result be a fair and just
    one: There will be no genuine issue requiring a trial when the judge is able
    to reach
a fair and just determination on the
    merits

on a motion for summary judgment
    (emphasis added): at paras. 49 and 66.

[12]

The motion judges grant of judgment in favour
    of Mr. Drummond was not a fair and just determination on the merits on the
    motion, based on the following combination of factors:

(i)

Mr. Drummond did not bring a cross-motion for
    judgment. To the contrary, his main position before the motion judge  and the
    position with which Cadillac Fairview engaged  was that this was not an
    appropriate case to be determined by summary judgment. In his factum filed on
    the motion, Mr. Drummond submitted that a trial is required to determine
    whether Fairview Mall breached its duty to [Mr. Drummond]  by failing to take
    reasonable care to ensure that [he] was reasonably safe while on the premises;

(ii)

Significantly, one of the reasons advanced by
    Mr. Drummond in support of his position that the case would be more fairly and
    justly decided by way of a trial was the need for further evidence from
    additional witnesses, including the cleaners who had been working in the food
    court area on the day of the incident
;

(iii)

Although at the end of his factum on the summary
    judgment motion Mr. Drummond advanced a three-line alternative request that
    judgment be granted in his favour, the motion judge granted Mr. Drummond
    judgment without considering the material defence of contributory negligence
    raised by Cadillac Fairview. While it would have been possible for the motion
    judge to grant Cadillac Fairview summary judgment dismissing the action without
    considering the issue of contributory negligence, it was not possible for him
    to grant judgment to the plaintiff without considering and rejecting that
    defence; and

(iv)

The motion judge failed to put Cadillac Fairview on notice that he
    might grant judgment against it and then afford Cadillac Fairview an
    opportunity to address that litigation risk.

[13]

The lack of procedural fairness on the motion is
    a sufficient basis to allow the appeal and set aside the Judgment in favour of
    Mr. Drummond.

[14]

Apart from the fairness concerns, the outcome in
    this case demonstrates the practical problems and inefficiencies that can arise
    when a judge chooses to go beyond the issues raised by the parties and make
    orders that no one requested or had an opportunity to speak to in the course of
    their submissions. Given the absence of any reference to the contributory
    negligence defence in the materials filed on the motion (apart from in the
    statement of defence) or in the motion judges reasons, it seems likely that
    the motion judge was either unaware of or had forgotten about the contributory
    negligence defence. Had the motion judge raised with counsel the possibility of
    granting judgment on liability in favour of the plaintiff, counsel would no
    doubt have brought to the motion judges attention the contributory negligence
    defence and its impact on the motion judges ability to grant judgment in
    favour of the plaintiff on the summary judgment motion. Because counsel did not
    have an opportunity to address the issue on the motion, an appeal, with its
    inevitable delay and added cost, became necessary regardless of the merits of
    the rest of the motion judges analysis.

III.      SECOND GROUND OF APPEAL: THE MOTION JUDGE IMPERMISSIBLY
    RELIED ON HEARSAY EVIDENCE

The issue stated

[15]

As noted by the motion judge, the possession of
    skateboards at the Mall was not prohibited as some of the Malls commercial
    tenants sold and repaired skateboards. What was prohibited was the use of
    skateboards in the Mall: at para. 16. The central issue in Mr. Drummonds claim
    against Cadillac Fairview was whether the company had breached its statutory
    duty by failing to take reasonable care to see that patrons visiting the Mall
    were reasonably protected against the hazard of others using skateboards in the
    Mall: at paras. 50 and 51.

[16]

In his responding affidavit, Mr. Drummond
    deposed that prior to the incident he had not seen the owner of the skateboard
    or the skateboard. However, he deposed that his daughter had informed him that
    she had seen the owner of the skateboard playing with the skateboard on the
    floor with his feet, moving it from side to side in the food court area.

[17]

In addition, Mr. Drummond deposed that his
    fiancé had informed him of conversations she had had with two unidentified members
    of the cleaning staff at the Mall. (Cadillac Fairview had contracted the
    housekeeping services for the Mall to a third party, GDI Services (Canada) LP,
    who employed the cleaners). The first unidentified cleaner told her that: about
    an hour before the incident with Mr. Drummond a skateboard had struck her; its
    owner had been seated in the same location in the food court where the incident
    involving Mr. Drummond took place; the cleaner had sustained a small cut on the
    back of her foot; and she had told the skateboard owner to stop playing with
    the skateboard.

[18]

The second unidentified cleaner had told the
    fiancé that she had seen the skateboard owner playing with the skateboard with
    his feet on the floor of the food court.

[19]

Mr. Drummond also tendered an affidavit from
    Steven Summerville, a security coordinator. Mr. Summerville appended an expert
    report to his affidavit. The motion judge excluded the report. However, the
    affidavit was otherwise admitted. Mr. Summerville attached to his affidavit
    unsworn, handwritten statements given by Mr. Drummonds daughter and fiancé,
    almost two years after the incident, which contained the information about the cleaners
    that Mr. Drummond included in his affidavit.

[20]

The motion judge admitted the hearsay evidence
    from Mr. Drummonds daughter and fiancé for the truth of its contents, relying
    on r. 20.02(1) of the
Rules of Civil Procedure
, the business records
    exception, and the reliability and necessity exception to the rule against
    hearsay: at paras. 19 to 21. Cadillac Fairview submits that the motion judge
    erred in so doing.

Analysis

[21]

The principles governing the admissibility of
    evidence on a summary judgment motion are the same as those that apply at
    trial, save for the limited exception of permitting an affidavit made on
    information and belief found in r. 20.02(1):
Sanzone v. Schechter
,
    2016 ONCA 566, 402 D.L.R. (4th) 135, leave to appeal refused, [2016] S.C.C.A.
    No. 443, at para. 15. Rule 20.02(1) provides, in part, that [a]n affidavit for
    use on a motion for summary judgment may be made on information and belief as
    provided in subrule 39.01(4) which, in turn, requires that the affidavit
    specify the source of the information and the fact of the belief. However, r.
    20.02(1) continues: [B]ut, on the hearing of the motion, the court may, if
    appropriate, draw an adverse inference from the failure of a party to provide
    the evidence of any person having personal knowledge of contested facts.

[22]

In
Armstrong v. McCall
(2006)
, 213 O.A.C. 29 (C.A.), at para. 33, this court expressed strong
    reservations about using r. 20.02(1) to admit affidavits that assert contested
    facts on information and belief. That caution regarding the use of hearsay
    evidence on summary judgment motions in respect of contested facts was repeated
    recently by this court in
Kawartha-Haliburton Childrens Aid Society v.
    M.W.
, 2019 ONCA 316, at para. 80:

The court must
    conduct a careful screening of the evidence to eliminate inadmissible evidence.
    The court should not give weight to evidence on a summary judgment motion that
    would be inadmissible at trial.

[23]

Although that caution was made in the context of
    a summary judgment motion in a child protection proceeding, the caution applies
    equally to the treatment of hearsay evidence that goes to fundamental issues in
    dispute on a summary judgment motion under the
Rules of Civil Procedure
.
    As Edwards J. stated in
Mitusev v. General Motors Corp.
, 2014 ONSC
    2342, at para. 20: If the hearsay evidence is on a fundamental aspect of the
    motion, it is unlikely that the motion judge will decide the motion favourably
    to the party adducing the hearsay evidence.

[24]

If the evidence on information and belief in an
    affidavit goes to a fundamental contested aspect of the summary judgment
    motion, the motion judge should first determine whether the evidence would be
    admissible under the rules governing admissibility at trial. If the evidence
    meets those criteria, it is admissible on the motion. If the evidence does not
    meet the criteria for admissibility at trial, the onus should fall on the party
    proffering the evidence to justify some expansion of the rules governing
    admissibility in the context of the motion. For example, there may be cases in
    which an affidavit complies with r. 20.02(1) and it can be said that the
    opposing party had a fair chance to challenge the hearsay evidence, even though
    the evidence might not qualify as admissible hearsay.

[25]

The information that Mr. Drummond relayed from
    his daughter and fiancé went to the heart of the plaintiffs negligence claim
    against Cadillac Fairview. While the information in Mr. Drummonds affidavit
    provided by his daughter met the technical requirement of disclosing the source
    of the information, that from his fiancé did not. The material information from
    the fiancé was information provided to her by two unnamed members of the
    cleaning staff about what they had seen the skateboard owner do some time
    before the incident with Mr. Drummond. In his factum on the summary judgment
    motion, Mr. Drummond described the two unnamed cleaners as essential
    witnesses. The absence of an actual identification of such essential witnesses
    is a significant consideration in determining whether the evidence is
    sufficiently reliable to warrant its admissibility under r. 20.02(1).
[1]

[26]

In his affidavit tendering the hearsay and
    double-hearsay statements from his daughter and fiancé, Mr. Drummond offered no
    explanation about why they could not provide their own affidavits on the
    motion, especially in light of the materiality of the information he attributed
    to them. Nor did Mr. Drummond explain why he did not tender direct evidence
    from the members of the cleaning staff, whom he described as essential
    witnesses. In his reasons, the motion judge failed address those evidentiary
    frailties or explain how, given those frailties, any weight could be given to
    the hearsay statements, even under r. 20.02(1).

[27]

Instead, the motion judge concluded, without
    analysis, that the hearsay evidence would have been admissible pursuant to the
    business records exception and the reliability and necessity exception to the
    rule against hearsay:
R. v. Khelawon
, 2006 SCC 57, [2006] 2 S.C.R. 787.
    In admitting the hearsay evidence on those bases, the motion judge committed
    legal error.

[28]

Mr. Summervilles affidavit did not attempt to
    lay any foundation to admit the unsworn, handwritten statements of the daughter
    and fiancé under the business records exception. Their handwritten statements
    patently were not business records.

[29]

Nor were the statements by, or the information
    from, the daughter or fiancé recounted in Mr. Drummonds affidavit admissible
    under the principled exception to the hearsay rule because there was no
    evidence about the need to admit that evidence or its reliability.

[30]

The motion judge erred in law by admitting that
    hearsay evidence for the truth of its contents.

[31]

The hearsay evidence from the daughter and
    fiancé played a central role in the motion judges finding of liability against
    Cadillac Fairview. The motion judge accepted the information contained in the
    hearsay evidence as the truth of what the skateboard owner had done before the
    incident with Mr. Drummond, as can be seen from paras. 52 and 53 of his
    reasons:

Cadillac Fairview admitted that the use of
    skateboards inside the mall was a known hazard. It posted signs prohibiting
    skateboard use inside the mall, and it admitted that if a person entered the
    mall with a skateboard, the person was to be told by a security guard to secure
    the skateboard during the persons visit to the mall. Cadillac Fairview
    admitted that it required its security guards to patrol the mall to alert
    themselves whether skateboards were being used in the mall.

However, in the
    immediate case, the security guards patrols and their documentation of the
    patrols were ineffective. The security guards patrolled, but they did not
    notice that SS had entered the mall with a skateboard.
The security guards did not notice that SS with his skateboard
    was moving through the mall. When the security guards patrolled the food court,
    they did not notice that SS had not secured his skateboard. They did not notice
    that SS was playing with the skateboard under his chair in the food court.
    Although the security guards were not alerted by the cleaning staff that there
    had already had been an incident in the food court with the skateboard causing
    minor harm to a cleaning lady, the security guards did not as part of their
    patrol make proactive inquiries of anyone in the food court, but rather they
    waited for incidents to be reported to them.
(emphasis added)

[32]

I accept the submission of Cadillac Fairview
    that the motion judges finding of liability against it was grounded in his
    erroneous admission of hearsay evidence on key, contested issues. That error by
    the motion judge constitutes an additional reason to set aside the Judgment
    against Cadillac Fairview.

[33]

For those reasons, I would allow the appeal and
    set aside the Judgment granted in favour of Mr. Drummond against Cadillac
    Fairview.

IV.     CADILLAC FAIRVIEWS SUMMARY JUDGMENT
    MOTION

[34]

Cadillac Fairview submits that in the event this
    court sets aside the Judgment, it should grant summary judgment to Cadillac
    Fairview dismissing the action pursuant to s. 134(1)(a) of the
Courts of
    Justice Act
, R.S.O. 1990, c. C.43.

[35]

I accept that submission. I am persuaded that
    the record does not disclose any genuine issue requiring a trial in respect of
    Cadillac Fairviews liability to Mr. Drummond.

[36]

As framed by the motion judge, the central issue
    in Mr. Drummonds claim against Cadillac Fairview was whether the company had
    breached its statutory duty by failing to take reasonable care to see that
    patrons visiting the Mall were reasonably protected against the hazard of
    others using skateboards in the Mall: at paras. 51. The motion judge recognized
    that Cadillac Fairviews
Security & Life Safety
    Standard Operating Procedures manual
implemented a reasonable standard of
    care and the company had a reasonable system in place to guard against the
    hazards of skateboard use in the Mall: at paras. 51 and 54. He also found as a
    fact that the Mall, including the food court, was routinely being patrolled on
    the day of the incident: at para. 38. The motion judges conclusion that
    Cadillac Fairview had failed to meet the reasonable standard it had set for
    itself in its Standard Operating Procedures was based on two findings.

[37]

The first was that prior to the incident with
    Mr. Drummond, the skateboard owner had been playing with the skateboard under
    his seat in the food court, had allowed his skateboard to hit and injure a
    cleaner, had been told to stop using his skateboard yet, according to the
    information Mr. Drummond attributed to his daughter, the skateboard owner
    continued to play with his board. As explained, those findings were based on
    inadmissible hearsay.

[38]

So, too, was the motion judges further finding
    that the security guards had not been alerted to the earlier incident involving
    the member of the cleaning staff and had not made proactive inquiries in that
    regard. That finding was predicated on the tainted findings that the earlier
    incident in fact had occurred.

[39]

One of Cadillac Fairviews security guards, Mr.
    Karvan Afsar, prepared two Incident Reports regarding the incident involving
    Mr. Drummond. In his reasons, the motion judge observed that the security guard
    did not record the incident with the detail required by the Standard Operating
    Procedures manual. As well, two of the five memorandum books of the security
    guards had been lost. However, as the motion judge noted, none of those acts or
    omissions would have prevented the incident from occurring.

[40]

Once the inadmissible hearsay evidence is
    removed from the negligence analysis, the remaining material evidence on whether
    the standard of care was met is that filed by Cadillac Fairview. It included
    the direct evidence of
one security guard, Mr. Karvan
    Afsar
, about the events of August 23, 2015. He was cross-examined at
    length. In his evidence, Mr. Afsar testified that: (i) the young skateboard
    owner was not known as a person who was a potential hazard; (ii) Mr. Afsar
    patrolled the food court as part of his shift that day, which included the time
    of day when the incident involving Mr. Drummond occurred; (iii) on a typical
    shift he would have patrolled the food court about 15 times; and (iv) he saw
    two other security guards patrolling that day.

[41]

As well, Mr. Afsar attached to his affidavit the
    memorandum books of the other two guards. Based on his review of those books,
    he deposed that none of the books made any reference to the young skateboard
    owner or any potential hazard he might pose to patrons in the Mall.

[42]

Section 3 of the
OLA
imposes a duty on an occupier of premises to take such care as in
    all the circumstances of the case is reasonable to see that persons entering on
    the premises  are reasonably safe while on the premises. The statutory
    standard of care is one of reasonableness in the circumstances; it does not
    require perfection or unrealistic or impractical precautions against known
    risks:
Kerr v. Loblaws Inc.
, 2007 ONCA 371,
    224 O.A.C. 56, at para. 19. Accordingly, the standard of care did not require
    Cadillac Fairview to maintain a constant surveillance or lookout for potential
    danger; it required the company to take measures that were reasonable in the
    circumstances:
Garofalo v. Canada Safeway Ltd.
, [1998] O.J. No. 302
    (O.C.J., Gen. Div.), at para. 31;
Saisho Estate v. Loblaw Cos.
, 2015
    ONCA 172, at para. 17.

[43]

I am satisfied on the admissible evidence before
    the court that Cadillac Fairview has demonstrated that there is no genuine
    issue requiring a trial regarding the elements that Mr. Drummond must establish
    to prove his claim that Cadillac Fairview breached its duty under s. 3 of the
OLA
:
Tondat v. Hudsons Bay Company
, 2018 ONCA 302,
    at paras. 6 and 7
. The admissible evidence shows that:
    Cadillac Fairview had in place reasonable policies to ensure the safety of
    those entering into the Mall and eating in the food court; it implemented those
    policies in a routine and reasonable manner on the day of the incident through
    the patrols performed by the security guards; and it had no reason to foresee
    that the young skateboard owners conduct might pose a risk to Mr. Drummond or
    other patrons using the food court. In those circumstances, I see no genuine
    issue requiring a trial regarding Cadillac Fairviews liability to Mr. Drummond
    for the injuries that he suffered.

V.      DISPOSITION

[44]

For the reasons set out above, I would allow the
    appeal, set aside the Judgment, and dismiss the action.

[45]

Based on the agreement of the parties, I would
    award Cadillac Fairview its costs of the appeal in the amount of $15,000 and
    its costs of the action in the amount of $15,000, for a total of $30,000,
    inclusive of disbursements and H.S.T.

Released: D.D. May 30, 2019

David
    Brown J.A.

I
    agree. Doherty J.A.

I
    agree. Paul Rouleau J.A.

[1]
The examination for discovery of Cadillac Fairviews representative, Mr. Paul
    Pannozzo, took place on April 5, 2017, well before Cadillac Fairview brought
    its summary judgment motion. On that examination, Cadillac Fairview advised
    that its insurance adjuster had taken an electronic recording of the statement
    of a cleaner, which it identified in Schedule B to its affidavit of documents.
    Cadillac Fairview undertook to provide the identity of and contact information
    for the cleaner. Mr. Drummond did not argue that Cadillac Fairview failed to
    fulfill that undertaking.


COURT OF APPEAL FOR ONTARIO

CITATION: Dussault v. Imperial Oil Limited, 2019 ONCA 448

DATE: 20190529

DOCKET: C65184

Brown, Roberts and Zarnett JJ.A.

BETWEEN

Donald Dussault and Maryann Pugliese

Plaintiffs (Respondents/
Appellants by Cross-Appeal)

and

Imperial
    Oil Limited

Defendant (Appellant/
Respondent by Cross-Appeal)

Richard J.
    Nixon and Brendan Clancy
, for the appellant

David E. Greenwood and Simon Reis, for the respondents

Heard: April 25, 2019

On appeal from the orders of Justice Lise Favreau of the Superior
    Court of Justice, dated February 20, 2018, with reasons reported at 2018 ONSC 1168,
    and dated July 13, 2018, with reasons reported at 2018 ONSC 4345.

REASONS FOR DECISION

[1]

The appellant employer appeals and the respondent employees cross-appeal
    from the motion judges orders awarding wrongful dismissal damages to the
    respondents. The appellant dismissed the respondents from their employment, without
    cause, following the sale of part of its retail business to Macs Convenience
    Stores Inc.

[2]

At the conclusion of the hearing, we dismissed the appeal with reasons
    to follow and reserved our decision on the cross-appeal.  As indicated below,
    the cross-appeal is allowed.  These are our reasons for our disposition of both.

Appeal

[3]

The appellants principal submission is that the motion judge erred in
    failing to find that the respondents had not mitigated their damages by
    accepting comparable employment with Macs.  In its factum, the appellant also argues
    that the motion judge erred further in awarding as damages the value of substantially
    the same benefits that the respondents continued to receive under their
    pensions.

[4]

We do not accept these submissions.

[5]

We start with the following well-established principles:  to mitigate
    any damages arising from dismissal, an employee must make reasonable efforts to
    seek comparable

employment; and it remains the employers burden to
    prove the employees failure to do so:  see:
Red Deer College v. Michaels
,
    [1976] 2 SCR 324.  Comparable employment does not mean any employment but
    comprehends employment comparable to the dismissed employees employment with
    his or her former employer in status, hours and remuneration:
Carter v.
    1657593 Ontario Inc.
,
2015 ONCA 823, at para.
    6
.

[6]

We see no error in the motion judges detailed conclusions that the
    employment offered by Macs was not comparable and that the respondents acted
    reasonably in refusing it.  On the face of Macs offers, the proposed
    employment would have resulted in an immediate, substantial decrease in
    benefits and, after 18 months, a material drop in base salary.

[7]

The appellants argument that its proposed lump sum payments to the
    respondents would have made up any difference in benefits rings hollow given
    its refusal to disclose those amounts without the respondents first having
    accepted Macs offers and signed a release in favour of the appellant.  Moreover,
    Macs offers required the respondents to waive their years of service and their
    entitlements to common law notice and to termination and severance pay under
    the
Employment Standards Act
, 2000, S.O. 2000, C. 41, based on those
    years of service.

[8]

The determination of whether the respondents had mitigated their damages
    by accepting comparable employment is a fact-driven inquiry.  The motion
    judges findings stand firmly rooted in the evidence and are entitled to
    deference on appeal.  We agree with her conclusion that the appellant did not
    discharge its burden to prove the respondents had failed to mitigate their
    damages.

[9]

Turning next to the issue of duplication of benefits compensation, we
    are not persuaded that the motion judge erred in determining the respondents
    were entitled to damages representing the value of their employment benefits.

[10]

As
    the motion judge noted, wrongfully dismissed employees are entitled to damages
    for the employment benefits they would have received as part of their
    employment compensation:
Paquette v. TeraGo Networks Inc.
, 2016 ONCA
    618, at para. 16.

[11]

The
    motion judge correctly determined that the respondents benefits under their retirement
    pensions formed part of their retirement savings earned through their years of
    service and were not an indemnity for lost employment compensation:
Waterman
    v. IBM Canada Ltd.
, 2013 SCC 70, at para. 77.  As a result, we agree with
    the motion judges conclusion that any benefits to which the respondents were
    entitled as part of their retirement pension plan should not be viewed as employment
    compensation for lost employment benefits and therefore should not be deducted
    from the damages awarded for lost employment compensation.

Cross-appeal

[12]

The
    respondents submit that the motion judge erred in awarding damages for the
    appellants annual contributions to their Savings Plan based on 3% rather than
    6% of their base salaries.  The appellant maintains that there was no error in
    the motion judges fact-based finding that the respondents were only entitled
    to receive compensation for the 3% contribution that the appellant was
    obligated to make at the time of the termination of their employment because of
    the respondents historical designations under the Plan.

[13]

In
    order to put these submissions into proper context, it is useful to set out the
    relevant provisions of the Savings Plan in issue and the respondents rights
    and designations under that Plan.

[14]

During
    their employment, the respondents employment benefits compensation included
    the appellants annual contributions to their Savings Plan.  Depending on the
    respondents elections, the appellant would contribute between 0 to 6% of their
    annual base salaries to their Savings Plan to match the aggregate amount
    contributed by the employee to the Plan.  As members of the appellants
    Heritage Plan, the respondents could make a yearly election to participate in
    the Retirement Income Option of their pension plan which would affect the
    appellants percentage contributions to their Savings Plan and supplementary
    pensions.

[15]

In
    the course of their employment, the respondents elected to participate in the
    Retirement Income Option of their pension plan, which meant that the appellant
    contributed 3% of their base salaries to their Savings Plan and another 3% to
    their supplementary pensions. This election was still in place at the time of
    the termination of their employment.

[16]

Following
    the termination of their employment in October 2016, but during the
    respondents 26-month notice period, the appellant instigated amendments to the
    Savings Plan effective January 1, 2017. For the purpose of the cross-appeal,
    the relevant amendments were that the appellants percentage contribution to the
    Savings Plan would decrease to 1% for those employees who elected to
    participate in the Retirement Income Option of the appellants pension plan.  Employees
    were required to make an election as to their plan option in the fall of 2016.

[17]

The
    motion judge, at para. 50 of her damages decision, determined that given their dismissal
    from employment, the respondents did not have an opportunity to re-elect to
    leave the Retirement Income Option. The respondents point to the fact that
    their pensions were fully funded at this time and that any reasonable employee
    would have elected to leave the Retirement Income Option to maximize their
    Savings Plan. However, she determined that the appellants contribution would
    not have exceeded 3%.

[18]

In
    our view, the motion judge erred in her interpretation of the Savings Plan.
    The 2017 amendments clearly provide that if an employee opted out of the
    Retirement Income Option, the appellants contribution would be 6% to the
    Savings Plan, assuming the aggregate amount the employee had contributed was
    also 6% of their earnings, which was the case for both respondents. Given the
    motion judges finding that the respondents were entitled to the compensation
    that they would have received had they remained employed, she should have
    awarded damages for lost Savings Plan benefits in the amount of 6% of their
    base salaries for the period of reasonable notice, less the amounts already
    paid by the appellant for the 8 weeks of statutory notice due to the
    respondents.

Disposition

[19]

We
    dismiss the appeal and allow the cross-appeal.  We order that the appellant pay
    the respondents the respective amounts of 6% of their base salaries for the
    period of reasonable notice, less the amounts already paid by the appellant for
    the 8 weeks of statutory notice.

[20]

As
    agreed, the respondents are entitled to their partial indemnity costs of the
    appeal and cross-appeal in the amount of $22,000, inclusive of disbursements
    and applicable taxes.

David
    Brown J.A.

L.B.
    Roberts J.A.

B.
    Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Extreme Venture Partners Fund LLP v. Varma, 2019
    ONCA 446

DATE: 20190528

DOCKET: C66181

Sharpe, Trotter and Harvison Young JJ.A.

BETWEEN

Extreme Venture Partners
    Fund LLP, EVP GP Inc., Ravinder Kumar Sharma, Imran Bashir, and Kenneth Teslia

Plaintiffs / Defendants by Counterclaim

(Appellants)

and

Amar
    Varma, Sundeep Madra, Varma Holdco Inc., Madra Holdco Inc.,

Chamath Palihapitiya, El
    Investco I Inc., Extreme Venture Partners Annex Fund LLP, EVP GP Annex Fund I
    Inc., Cassels Brock & Blackwell LLP, and

Seven Hills Group
    LLC

Defendants / Plaintiffs by Counterclaim

(
Respondent
)

Won J. Kim and Gigi van Leeuwen, for the appellant

C. Haddon Murray, for the respondent

Heard and released orally: May 27, 2019

On
    appeal from the order of Justice Penny of the Superior Court of Justice, dated October
    15, 2018.

REASONS FOR DECISION

[1]

The appellants appeal the dismissal of their claim against the
    respondent by way of summary judgment. The appellants claim arises from a
    management buyout of Xtreme Labs. The appellants were directors and
    shareholders of Xtreme Labs. The respondent was engaged to provide a valuation
    of Xrteme Labs. The appellants allege that the valuation significantly
    undervalued Xtreme Labs and that they suffered a loss as a result of the
    management buyout.

[2]

On the motion for summary judgment, the moving party respondent relied
    on the terms of their engagement letter for the valuation in support of their
    position that they owed no duty of care to the appellants. The appellants did
    not put forth any evidence in support of their claim.

[3]

The motion judge ruled that the terms of the letter of engagement were
    inconsistent with the respondent owing the appellants a duty of care and he
    granted summary judgment on that basis.

[4]

The appellants argue that the motion judge erred by (1) finding no duty
    of care; (2) failing to apply the proper evidentiary burden; and (3) failing to
    give adequate weight to the lack of credibility of the respondents deponent.
    The appellants also argue (4) that this was not a proper case for partial
    summary judgment.

Duty of Care

[5]

We do not agree that the motion judge erred with respect to the duty of
    care. The only evidence before the motion judge on this issue was the
    engagement letter. The engagement letter makes it clear that the respondent is
    not providing a fairness opinion in relation to any transaction. The engagement
    letter also makes it clear that the respondent is only providing advice to
    Xtreme Labs and that the opinion is not to be shown to, relied upon or
    discussed with any other party. It explicitly stated that the opinion may not
    be disclosed to any third party or referred to publically, nor used for any
    purpose not related to the Board of Directors review. The engagement letter
    excludes any duty arising from non-contractual or fiduciary duties. It made
    clear that the respondent would be relying upon information provided by Xtreme
    Labs and that the respondent would not be independently verifying any of that
    information. Xtreme Labs undertook to provide the respondent with complete and
    accurate information.

[6]

The appellants were directors of Xtreme Labs but their claim for damages
    arises from their interest as shareholders. The letter of engagement makes it
    clear that the opinion is for the Board of Directors, not the shareholders or
    to Board members in their personal capacity. In our view the motion judge made
    no error in concluding that, by its terms, the letter of engagement excluded
    any duty of care owed by the respondent to the appellants in their capacity as
    shareholders.

Evidentiary burden

[7]

The respondents motion for summary judgment rested entirely on the
    letter of engagement. The appellants failed to advance any evidence in support
    of their claim that the respondent owed them a duty of care.  In these
    circumstances, we fail to see how the motion judge could be criticized on the
    basis that he failed to apply the proper evidentiary burden. The respondent put
    forth evidence, namely the letter of engagement, sufficient to support their
    case that the claim should be dismissed. The appellants failed to answer that
    with competing evidence. They cannot now complain that the motion judge
    misapplied the evidentiary burden for summary judgment.

Credibility of the respondents deponent

[8]

The appellants argue that the motion judge erred by failing to give any
    weight to the fact that the respondents deponent was unable to answer many
    questions when he was cross-examined. As we have noted, the respondents case
    rested on the letter of engagement. We fail to see how inadequacies in the
    knowledge of the respondents deponent had any bearing on the specific issue
    the motion judge was asked to decide.

Partial summary judgment

[9]

The appellants argue that this was not a proper case for partial summary
    judgment. This was not a partial summary judgment as the claim against the
    respondent was dismissed in its entirety. The appellants claims against the
    other defendants did proceed to trial but, as the claim against the respondent
    could be determined on a discrete legal issue pertinent only to the liability
    of the respondent, the motion judge did not err in dismissing the claim on that
    basis.

[10]

We
    note as well that the appellants claims against the other defendants have now
    proceeded to trial and the appellants achieved what counsel described as
    complete success and the award of all damages, including punitive damages. In
    these circumstances, it is not apparent to us that it would be appropriate to
    make an order that would require another trial.

Conclusion

[11]

Accordingly,
    the appeal is dismissed, with costs to the respondent in the amount of $10,000,
    inclusive of disbursements and taxes.

Robert J. Sharpe J.A.

G.T. Trotter J.A.

A. Harvison Young J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Jakaj (Re), 2019 ONCA 379

DATE: 20190508

DOCKET: C66020

Feldman, Miller and Fairburn JJ.A.

IN THE MATTER OF:  Robert Jakaj

AN APPEAL UNDER PART XX.1 OF THE
CODE

Russell W. Browne, for the appellant

Caitlin Sharawy, for the respondent

Heard and released orally:  May 3, 2019

On appeal against the disposition of the Ontario Review
    Board dated, July 18, 2018 with reasons dated August 8, 2018.

REASONS FOR DECISION

[1]

This is an appeal from the Ontario Review Boards July 18, 2018
    disposition.

[2]

The appellant says that the Board erred in two ways:

(i)      by finding that the appellant continued to pose a significant
    threat to the safety of the public; and

(ii)      by
    concluding that the detention order was necessary in the circumstances.

[3]

We see no error in the Boards conclusion that the appellant continues
    to pose a significant threat to the safety of the public. Among other things,
    the Board specifically considered and accepted as fact that:

(a)     the appellant has a major mental illness;

(b)     he has a history of non-compliance with medication;

(c)     there is a history of substance abuse;

(d)     there is a connection between the appellants substance abuse and
    his psychiatric decompensation;

(e)     the appellants more recent acute psychotic episode related to
    cannabis use;

(f)      there is a history of violence; and

(g)     the
    index offence was serious.

[4]

The Board considered the correct test for finding a continued
    significant threat to the safety of the public and properly applied it to these
    factual findings. We would not interfere with that finding.

[5]

We are equally satisfied that the Board did not err in concluding that
    the detention order was the necessary and appropriate disposition.

[6]

The Board specifically considered whether a conditional discharge could
    adequately address the public safety concerns in light of the appellants
    mental condition and all of the surrounding circumstances. Given his condition
    and the circumstances, the Board came to the conclusion that it could become
    necessary to readmit the appellant to the hospital quickly, but the
Mental
    Health Act
provisions would not be sufficient. As the Board found, the
    criteria under the
Mental Health Act
would be unlikely to assist in
    his readmission to the hospital. Among other things, this conclusion was based
    on the psychiatrists evidence that the January 2018 decompensation, although
    serious, would not have qualified under the
Mental Health Act
criteria.

[7]

The appeal is dismissed.

K.
    Feldman J.A.
B.W. Miller J.A.
Fairburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Karafiloski v. Kalenga, 2019 ONCA 414

DATE: 20190517

DOCKET: C65669

Feldman, Paciocco and Fairburn JJ.A.

BETWEEN

Milena Karafiloski and Stane Karafiloski

Appellants

and

Nzela Jeanine Kalenga and
    Nkema-Liloo Etale

Respondents

Adam Huff, for the appellants

No one appearing for the respondents

Heard and released orally: May 16, 2019

On appeal from the order of Justice Sheard of the
    Superior Court of Justice, dated June 18, 2018.

APPEAL BOOK ENDORSEMENT

[1]

Counsel for the appellants appeared to explain that the appeal is to be
    allowed on consent as the relevant authorities were not brought to the
    attention of the motion judge.

[2]

Order to go as per consent order filed.