COURT OF APPEAL FOR ONTARIO

CITATION: Welsh v. Ontario, 2019 ONCA 41

DATE: 20190124

DOCKET: C65528

Sharpe, Juriansz,
    and Roberts JJ.A.

BETWEEN

Christopher Welsh

Plaintiff (Appellant)

and

Her Majesty the Queen
    in Right of the Province of Ontario

Defendant (Respondent)

Michael Eizenga, for the appellant

Christopher A. Wayland and Jonathan Sydor, for the
    respondent

Stephanie DiGiuseppe, for the Intervenor, Aaron Zachary
    Smith

Heard: January 17, 2019

On appeal from the order of Justice Paul Perell of the
    Superior Court of Justice, dated May 24, 2018, with reasons reported at 2018
    ONSC 3217.

REASONS FOR DECISION

[1]

The appellant, the
    representative plaintiff in this class action proceeding, appeals from the
    order of the motion judge approving the legal fees of class counsel, subject to
    certain conditions.  There is no appeal from the motion judges order approving
    the settlement contained in a separate order, dated May 24, 2018.

[2]

This class action was commenced
    in August 2015 and certified on consent by the motion judge in August 2016.
    The class consists of about 4,500 former students of three provincial schools
    for the Deaf.  The common issues centred on whether the respondent was
    negligent in its management and operation of these schools and whether it
    breached fiduciary duties to the class members.  The claims included very
    serious allegations of physical, sexual and emotional abuse.  Through mediation
    undertaken in November 2017, the parties achieved a settlement and entered into
    a settlement agreement.

[3]

The settlement agreement provided that the respondent would establish a
    $15 million settlement fund in full settlement of the action.  The settlement
    agreement sets out how the settlement funds are to be disbursed and provides
    that they are first to be applied towards payment of class counsels fees and
    disbursements, and applicable taxes.  It was agreed that class counsels fees
    could be up to 25% of the settlement funds, in an amount to be approved by the
    court.  The settlement funds are also to be used to pay the claims of class
    members, the costs of notice to the class and to administer the claims process,
    and the required levy to the Class Proceedings Fund.  The settlement agreement
    expressly provides in para. 5 that if any amounts remain after payment for all
    these fees, claims, and costs has been made and the claims period has come to
    an end, they are to revert to the respondent.

[4]

At the motion to approve the settlement, class counsel requested that
    the motion judge approve fees of $3.75 million, which represented 25% of the
    $15 million settlement fund.  The motion judge expressed serious concerns about
    the merits of the settlement achieved because under its terms, only about 10%
    of the class members would receive compensation while the remaining 90% would
    be required to forego their claims without any payment or other benefit.  Notwithstanding
    his concerns, the motion judge approved the settlement, finding it was within
    the range of reasonableness because the settlement agreement was better than
    the alternative of proceeding to a trial.  As earlier noted, the motion
    judges approval of the settlement was incorporated into a separate order,
    dated May 24, 2018, which has not been appealed.  Counsel advised that the
    settlement has been implemented and that the claims process provided for under
    the settlement agreement is underway.

[5]

With respect to the approval of class counsels fees, the motion judge found
    that a counsel fee of $3.75 million was not fair and reasonable to all the
    class members because he was of the view that the results achieved for the
    whole of the Class was disappointing in that only about 10% of the class would
    benefit from the settlement.  As a result, he approved class counsels fees of
    $3.75 million on the condition that class counsel would donate $1.5 million of
    its fees to a charity for the Deaf to be approved by the motion judge.  The
    motion judge also determined that the $2.25 million balance of class counsels
    fees would be subject to a proportionate reduction depending on
the reversion to the respondent of the
    settlement funds not taken up by the class claimants
.

[6]

The appellants principal
    submission is that the motion judge erred in his disposition of class counsels
    fees by effectively rewriting the parties settlement.  Specifically, the
    appellant submits that the motion judge erred by making the approval of class
    counsels fee subject to a $1.5 million charitable donation and to a
    proportionate reduction. The appellant asks that this court order without
    conditions the payment of class counsel fees in the amount of $3.75 million.

[7]

The respondent takes no position respecting the quantum of the fee to be
    paid to appellants counsel but agrees that the motion judge erred in imposing
    the impugned conditions and in failing to allow the parties to make further
    submissions.  The respondent points out that the order, in effect, directs
    public funds to a third party that might have reverted to the Crown.

[8]

The intervenor submits that the motion judges decision was fair and reasonable,
    and should not be disturbed.

[9]

In our view, the motion judge erred in making his approval of class
    counsels fees subject to the charitable donation condition that he imposed,
    particularly in the absence of submissions from the parties.

[10]

By
    requiring class counsel, without the parties input or consent, to donate part
    of its fees to a designated charity, the motion judge inserted into the
    settlement agreement a material condition not agreed to by the parties.  This
    altered the settlement provision that surplus settlement funds would revert to
    the respondent.  That this was the intended outcome of the motion judges order
    is evidenced in para. 105 of his reasons when the motion judge states that it
    is not appropriate to make Ontario the beneficiary of a reduction of Class
    Counsels fee.

[11]

Given
    the motion judges concerns, the appropriate course of action would have been
    for him to allow the parties an opportunity to make submissions and, if they
    desired to do so, agree to change the terms of the settlement in order to address
    those concerns and obtain approval of class counsels fees.  However, he was
    not permitted to modify unilaterally the terms of a negotiated settlement
    without the consent of the parties. See:
D
abbs v. Sun Life Assurance Co.
    of Canada
, [1998] O.J. No. 1598, at para. 10;
Ford v. F.
    Hoffmann-La Roche Ltd.
(2005) 74 O.R. (3d) 758, at para. 127.

[12]

There
    is no question that it was within the motion judges discretion to express
    concerns about the amount of class counsels fees, and to reduce the amount of
    class counsels fees and make them proportionate to the settlement result
    achieved.  However, the motion judge erred in law by imposing the donation term
    that altered the settlement agreement.

[13]

The appellant also submits the trial judge
    failed to appreciate the litigation risk and the benefits of the settlement;
    his assessment of these factors was tainted by his palpable and overriding
    error in finding as a fact that only victims of sexual and physical abuse would
    benefit from the settlement.

[14]

Given our conclusion that the motion judge
    erred in imposing the donation condition, it is not necessary for us to
    determine whether he also erred in his assessment of litigation risk and
    benefits of the settlement.  We set aside the motion judges order on the basis
    that the donation error permeated his entire decision.  We express no views on
    the other errors alleged by the appellant.

[15]

In our view,
the entire detailed
    analysis necessary to determine and approve class counsels fees must be
    undertaken afresh without regard to the motion judges findings.  The
    consideration of whether the fees proposed in the circumstances of this case
    are fair and reasonable involves the analysis of myriad factors.  These include
    the following oft-cited factors referenced by the motion judge and reiterated
    with approval by this court in
Smith Estate v. National Money Mart Co.
,
    2011 ONCA 233, at para. 80:

Factors relevant in assessing the
    reasonableness of the fees of class counsel include: (a) the factual and legal
    complexities of the matters dealt with; (b) the risk undertaken, including the
    risk that the matter might not be certified; (c) the degree of responsibility
    assumed by class counsel; (d) the monetary value of the matters in issue; I the
    importance of the matter to the class; (f) the degree of skill and competence
    demonstrated by class counsel; (g) the results achieved; (h) the ability of the
    class to pay; (i) the expectations of the class as to the amount of the fees;
    (j) the opportunity cost to class counsel in the expenditure of time in pursuit
    of the litigation and settlement.

[16]

It
    is clear from a review of these factors that their consideration and
    application necessitate a thorough consideration of the factual underpinnings
    of this class proceeding and the settlement.  While this court has the power
    under s. 134 of the
Courts of Justice Act
to undertake such an
    analysis, we decline to do so in this case.  It is neither appropriate nor
    feasible for us to hear the detailed submissions that would be required to
    carry out that analysis in this case. We are of the view that this decision is
    best made at first instance by one of the highly experienced and expert class
    action judges who regularly undertake this analysis.

[17]

Accordingly,
    the motion judges May 24, 2018 order approving class counsels legal fees is
    set aside.  The matter is remitted for a new hearing before a different judge
    on the class action list of the Superior Court of Justice.

Robert J. Sharpe J.A.

R.G. Juriansz J.A.

L.B. Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Willmot v. Ontario, 2019 ONCA 63

DATE: 20190128

DOCKET: C65601

Rouleau, van Rensburg and Benotto JJ.A.

BETWEEN

Julie Willmot

Appellant

and

Her
    Majesty the Queen in Right of Ontario,

the Law
    Society of Upper Canada also known as

the Law Society of Ontario
    and the City of Quinte West

Respondents

Julie Willmot, in person

Sandra Barton and Natasha Carew, for the Law Society of
    Ontario

Tanya Jemec, for the Attorney General of Ontario

Heard: January 24, 2019

On appeal from the order of Justice W. Matheson of the
    Superior Court of Justice, dated May 28, 2018.

APPEAL BOOK ENDORSEMENT

[1]

The motion judge properly considered the matter on the basis of the
    appellants pleading and concluded that her action on its face meets the test
    for dismissal under rule 2.1.01.

[2]

The matter was brought to the court under r. 2.1.01(6) after the
    respondent Her Majesty the Queen was noted in default.  The appellant asserts
    that the respondent Her Majesty the Queen was precluded by r. 19.02(1), after
    having been noted in default, from taking any further step in the action
    without leave, which prevented the r. 2.1.01(6) request.

[3]

The motion judge was aware that the respondent Her Majesty the Queen had
    been noted in default.  Even if we accept that leave was required, it is
    obvious leave would have been granted, as this is a clear case for the
    application of r. 2.1.01.

[4]

The appeal is dismissed.  We also dismiss the fresh evidence application
    as the fresh evidence would have no impact on the outcome.

[5]

There will be no costs of the appeal.


COURT OF APPEAL
    FOR ONTARIO

CITATION: Zeppa v. Woodbridge Heating & Air-Conditioning
    Ltd., 2019 ONCA 47

DATE: 20190125

DOCKET: C64483

Strathy C.J.O., Feldman and Brown JJ.A.

BETWEEN

Franca Zeppa and Christopher Zeppa

Plaintiffs (Appellants)

and

Woodbridge Heating & Air-Conditioning Ltd.

Defendant (Respondent)

Emilio Bisceglia and Fernando Souza, for the appellants

Brian G. Sunohara, for the respondent

Heard: June 12, 2018

Appeal from the order of Justice
    Patrick J. Monahan of the Superior Court of Justice, with reasons reported at
    2017 ONSC 5847.

Brown J.A.:

I.

OVERVIEW

[1]

The central issue on this appeal concerns the determination of when time
    began to run for the action of the appellants, Franca and Christopher Zeppa, alleging
    that the respondent, Woodbridge Heating & Air-Conditioning Ltd.
    (Woodbridge), improperly installed an HVAC system in their residence.

[2]

Woodbridge completed installation of the HVAC system in late 2006. The
    Zeppas commenced this action on February 21, 2012.

[3]

The motion judge held that time began to run well prior to February of
    2010, when it was clear the problems with the HVAC system were caused by Woodbridges
    acts or omissions. He dismissed the action as statute-barred by s. 4 of the
Limitations
    Act, 2002
, S.O. 2002, c. 24, Sched. B (the
Act
). The appellants
    contend the motion judge erred in so doing. The Zeppas argue that time did not
    begin to run until the fall of 2010 when they learned the reason why the HVAC
    system was not operating properly  improper installation by Woodbridge. They
    seek to set aside the dismissal of their action.

[4]

For the reasons set out below, I would dismiss the appeal. The motion
    judge did not err in holding that: (i) the Zeppas did not need to know the
    reason why their HVAC system was not working in order to discover their claim
    against Woodbridge; (ii) by the fall of 2009, the Zeppas were no longer relying
    on Woodbridges expertise, so at that point a proceeding would be an
    appropriate means to remedy the problem; and (iii) Woodbridges concealment of
    information about the improper installation of the system it allegedly had
    received from the manufacturer did not, in the specific circumstances of the
    case, postpone the commencement of the limitation period.

II.

CHRONOLOGY OF EVENTS

The installation and operation of the HVAC system

[5]

I start by providing a basic chronology of the key events. I will
    conduct a more detailed examination of the evidence of certain events during my
    consideration of the grounds of appeal.

[6]

Franca Zeppa owns a house in Vaughan in which she and her husband,
    Christopher, reside. Christopher is the President of City Park Homes, a land
    developer; he knows how to construct a house.

[7]

The Zeppas hired Woodbridge to install an extensive HVAC system in the
    house. Mr. Zeppa recalled that the final price for Woodbridges work was around
    $50,000 to $60,000.

[8]

Woodbridge completed the installation by late 2006.

[9]

Mr. Zeppa deposed that the system began to experience problems immediately
    after its installation. He reported the problems to Woodbridges sales manager,
    Peter LaPosta, who acknowledged that he began to receive complaints from the
    Zeppas by May 2007.

[10]

According
    to Mr. Zeppa, Mr. LaPosta denied that there were any problems with the HVAC
    system. Instead, he contended that any issues were due to the Zeppas not
    maintaining the system. Mr. LaPosta advised that if the Zeppas entered into a
    maintenance plan with Woodbridge, any current and future problems with the
    system would be fixed.

[11]

The
    Zeppas entered into a two-year maintenance contract with Woodbridge, commencing
    June 1, 2007. Mr. Zeppa stated on discovery that throughout the maintenance
    program they continued to have the exact same problems and issues. Nothing ever
    worked properly. Despite having the maintenance plan, the problems were never
    fixed. The Zeppas did not renew the maintenance contract when it ended in May 2009
     the problems were getting worse, as was Woodbridges attitude.

[12]

The
    motion judge noted Mr. Zeppas testimony on discovery that in the summer of
    2009 he told Woodbridges representative he no longer believed the problems
    were due to maintenance and that Woodbridge had been lying to me from day one
     about maintenance: para. 31.

[13]

Mr.
    LaPosta deposed that Woodbridge last performed work on the Zeppas system in
    September 2009.

[14]

By
    the fall of 2009, the Zeppas were consulting other HVAC service providers about
    how to address the continuing problems. I will review this evidence in greater
    detail later in these reasons.

[15]

Mr.
    Zeppa ultimately contacted the manufacturer of the HVAC systems boilers,
    Quietside Corporation. In November 2010, Quietside wrote Mr. Zeppa advising
    that over the years it had received many phone calls regarding the installation
    at his residence. Quietside advised that it had informed the installer  which
    it did not name  that the cascading piping arrangement it had used was not
    a permitted application by Quietside. Quietside stated that pictures of the
    installation provided by Mr. Zeppa showed that the contractor did not follow
    the manufacture directions on this installation and application.

[16]

In
    November 2010, the Zeppas obtained two reports from Pinchin Environmental Ltd.
    One assessed the mould growth in their home and made recommendations to
    remediate the problem. The other identified deficiencies in the HVAC system and
    proposed alterations.

[17]

Kern
    Air Systems then provided a December 17, 2010 report that identified
    deficiencies in the installation of the HVAC system, including the boilers. The
    report recommended alterations and replacements to the HVAC system.

[18]

On
    March 25, 2011, Urban Innovations Custom Homes provided Mr. Zeppa with a
    quotation of approximately $238,000 for the renovation and repair of the damage
    to the residence caused by excessive moisture. The quotation did not include
    any mould remediation work.

[19]

The
    Zeppas obtained a December 5, 2011 quote from OKeefe Associates Limited for
    the cost of mould remediation and refinishing work. OKeefe quoted a price of
    approximately $211,000, which did not include the repair or replacement of the
    existing HVAC system.

[20]

Then,
    on February 16, 2012, Pinchin Environmental provided a report opining that
    mould growth in the residence was due to chronic high humidity caused by the
    improper installation of the HVAC system.

[21]

As
    noted, the Zeppas issued their Statement of Claim on February 21, 2012.

The Zeppas statement of claim

[22]

In
    their claim, the Zeppas sought general damages of $100,000 for negligence,
    breach of contract, misrepresentation and unjust enrichment, together with
    special damages of $291,312.20.

[23]

The
    appellants formal pleading of their causes of action is brief. At paras. 32
    and 33 of the statement of claim the Zeppas state:

The Zeppas plead that Woodbridge breached its contract with
    them, or alternatively, acted negligently and in breach of their professional
    responsibilities.

By its negligent acts and/or breach of contract and/or
    misrepresentation, Woodbridge is, at law, responsible to the Zeppas for their
    losses.

[24]

Read
    as a whole, the statement of claim alleges that Woodbridge: (i) failed to
    install an HVAC system that worked; (ii) misrepresented that it was qualified
    to install a Quietside heating system and that the problems were due to
    improper maintenance; and (iii) withheld information the Zeppas allege Woodbridge
    had received from Quietside that the system was improperly installed.

[25]

The
    Zeppas pleaded that they first became aware that the actual problems with the
    Quietside were due to the negligence of Woodbridge, upon receipt of [Quietsides
    November 2010] letter.

The litigation history of the proceeding

[26]

Woodbridge
    filed its statement of defence on March 29, 2012.

[27]

Woodbridge
    commenced a third-party action against Ecologix Heating Technologies Inc., which
    it had retained to design the HVAC system, and McCallum Consulting.

[28]

Examinations
    for discovery were conducted, including one of a representative of Ecologix. Mr.
    Zeppa was discovered in August 2015. The Zeppas delivered expert reports;
    Woodbridge did not.

[29]

The
    action was set down for trial. Woodbridge initiated its summary judgment motion
    on December 12, 2016. It is not clear whether this was before or after the
    action was set down.

III.

THE REASONS OF THE MOTION JUDGE

[30]

The
    motion judge granted summary judgment dismissing the action on the basis that
    the Zeppas had commenced their action outside of the limitation period. His key
    findings were that:

·

the Zeppas discovered their claim well prior to February of
    2010: at para. 29;

·

the Zeppas began experiencing significant problems with the HVAC
    system almost immediately after it was installed in late 2006 or early 2007
    and [i]t was clear that these problems were caused by acts or omissions of
    Woodbridge, since they were responsible for the installation of the HVAC
    system: at para. 29;

·

time did not run during the two-year term of the maintenance
    contract between the Zeppas and Woodbridge because during that period the
    plaintiffs could reasonably maintain that they were relying on the superior
    knowledge and expertise of Woodbridge, and on the fact that Woodbridge was
    engaged in good faith efforts to remedy the concerns with the HVAC system: at
    para. 30;

·

by the fall of 2009 the Plaintiffs were consulting with other
    HVAC service providers as to how to address the ongoing problems with the HVAC
    system and they were no longer relying on good faith efforts of Woodbridge to
    remedy the concerns: at para. 31; and

·

even assuming that Woodbridge had been told by Quietside that the
    HVAC system had been installed improperly and had chosen to conceal such
    information, that would not postpone the running of the limitations period
    because all that is required is that the Plaintiffs have discovered their
    claim and  it is not necessary that they know why or how the claim arose: at
    para. 37.

IV.

ISSUES ON THE APPEAL

[31]

The
    Zeppas advance four grounds of appeal.

[32]

First,
    the Zeppas submit the motion judge erred in finding that they discovered their
    claim well prior to February of 2010 because they knew before then that the
    problems with their HVAC system were caused by acts or omissions of Woodbridge,
    which installed the system. The Zeppas contend that a finding of actual
    knowledge under s. 5(1)(a) of the
Act
requires something more than
    simply knowing the HVAC system was not working properly  it requires knowledge
    of the reason why the HVAC system was not working. The Zeppas argue they only
    discovered the material facts on which to base a legal claim when they learned
    from Quietside in November 2010 that Woodbridge had improperly designed and
    installed the HVAC system.

[33]

Second,
    the Zeppas contend that until November 2010 they reasonably relied on
    Woodbridges superior knowledge and expertise to repair the problems with the
    system. As a result, the motion judge erred in failing to find, under s.
    5(1)(a)(iv) of the
Act
, that a proceeding against Woodbridge was not
    an appropriate means to seek to remedy the problems until they learned the
    reason why the system was not working in November 2010.

[34]

Third,
    the appellants contend the motion judges discoverability analysis was flawed
    because he failed to take into account that Woodbridge misrepresented to them
    that the problem was only one of maintenance.

[35]

Finally,
    the Zeppas submit the motion judge failed to take into account that Woodbridge
    concealed from them the information they contend it learned from Quietside that
    the system had been improperly installed.

V.

THE FIRST GROUND OF APPEAL: DID THE MOTION JUDGE ERR IN HIS FINDINGS
    CONCERNING THE APPELLANTS KNOWLEDGE ABOUT AN INJURY, LOSS OR DAMAGE?

[36]

The
    first ground of appeal involves both legal and factual elements.

The legal element

[37]

The
    Zeppas contend the motion judge erred in law by holding, at para. 33 of his
    reasons, that it was not necessary for them to have knowledge of the fact that
    the Quietside boilers were installed improperly in order for the limitation
    period to commence running. What was needed was knowledge, actual or imputed,
    that [they] had a claim against Woodbridge.

[38]

They
    submit that even though they knew Woodbridge had installed the HVAC system and
    the system was not working properly from the start, for the purposes of s. 5(1)
    of the
Act
they could not know that Woodbridges act or omission
    caused or contributed to their injury, loss or damage until they knew the
    reason why the system did not work.

[39]

I
    am not persuaded by this submission.

[40]

In
    order to grant summary judgment dismissing a plaintiffs action as barred by
    the basic two-year limitation period set by s. 4 of the
Act
, a motion
    judge is required to make findings of fact about the matters set out in ss.
    5(1) and (2) of the
Act
. Those provisions state:

5 (1) A claim is discovered on the earlier of,

(a) the day on which
    the person with the claim first knew,

(i)  that the injury,
    loss or damage had occurred,

(ii)  that the
    injury, loss or damage was caused by or contributed to by an act or omission,

(iii)  that the act
    or omission was that of the person against whom the claim is made, and

(iv)  that,
    having regard to the nature of the injury, loss or damage, a proceeding would be
    an appropriate means to seek to remedy it; and

(b) the day on
    which a reasonable person with the abilities and in the circumstances of the
    person with the claim first ought to have known of the matters referred to in
    clause (a).

(2) A person
    with a claim shall be presumed to have known of the matters referred to in
    clause (1) (a) on the day the act or omission on which the claim is based took
    place, unless the contrary is proved.

[41]

The
    discoverability analysis under s. 5(1) of the
Act
involves, in part,
    determining when a claimant first knew that an injury, loss or damage had
    occurred and was caused by an act or omission of the defendant. The
    jurisprudence concerning when a claimant possesses such knowledge is summarized
    in Graeme Mew, Debra Rolph & Daniel Zacks,
The Law of Limitations,
3rd
    ed. (Toronto: LexisNexis, 2016), at §3.50:

[I]t has been recognized that discoverability means knowledge
    of the facts that may give rise to the claim. The knowledge required to start
    the limitation running is more than suspicion and less than perfect knowledge.
    Or, to put it another way, the plaintiff need not be certain that the
    defendants act or omission caused or contributed to the loss in order for the
    limitation period to begin to run. The limitation begins to run from when the
    plaintiff had, or ought to have had, sufficient facts to have
prima facie
grounds to infer the defendants acts or omissions caused or contributed to the
    loss. It is reasonable discoverability  rather than the mere possibility of
    discovery  that triggers a limitation period.

See also:
Lawless v. Anderson
, 2011 ONCA 102, 276
    O.A.C. 75, at paras. 22-23;
Kowal v. Shyiak
, 2012 ONCA 512, 296 O.A.C.
    352, at para. 18;
Lochner v. Toronto (Police Services)
, 2015 ONCA 626,
    128 O.R. (3d) 318, at para. 7;
Beaton v. Scotia iTrade and Scotia Capital
,
    2012 ONSC 7063, at para. 13, affirmed, 2013 ONCA 554.

[42]

As
    this court observed in
Lawless
, at para. 23, the question to be posed
    in determining whether a person has discovered a claim is whether the
    prospective plaintiff knows enough facts on which to base a legal allegation
    against the defendant. In support of that proposition,
Lawless
cited
    the decision of this court in
McSween v. Louis
(2000), 132 O.R. (3d)
    304 (C.A.), where Feldman J.A., writing for the majority, stated, at para. 51:

To say that a plaintiff must know the precise
    cause of her injury before the limitation period starts to run, in my view
    places the bar too high. Both the one year limitation period itself [in s. 17
    of the
Health Disciplines Act
, R.S.O. 1990, c.
    H.4], as well as the production and discovery process and obtaining expert
    reports after acquiring knowledge through that process, are litigation
    procedures commonly used by a plaintiff to learn the details of how the injury
    was caused, or even about the existence of other possible causes and other
    potential defendants.

[43]

Given
    that jurisprudence, I see no error in the motion judges statement, at para. 26
    of his reasons, of the applicable principles of law concerning s. 5(1) of the
Act
,
    including that the question of how it happened will be revealed through the
    legal proceeding and need not be known in advance for limitations purposes:
Beaton
,
    ONSC, at para. 13.

The factual element

[44]

The
    Zeppas next argue that the motion judge made factual errors in concluding they
    knew they had a claim against Woodbridge well prior to February 2010.

[45]

The
    motion judge clearly identified the evidence upon which he relied to make that
    finding in paras. 29-31, 34-36 and 39 of his reasons, which state, in part:

[T]he Plaintiffs began experiencing significant problems with
    the HVAC system almost immediately after it was installed in late 2006 or early
    2007. Christopher reported that they were regularly without heat or hot water,
    the air conditioning system did not function properly, and they were unable to
    use the indoor pool. It was clear that these problems were caused by acts or
    omissions of Woodbridge, since they were responsible for the installation of
    the HVAC system.

The Plaintiffs brought these concerns to the attention of
    Woodbridge in early 2007. Woodbridge advised that the problems were due to lack
    of maintenance and, on this basis, the parties entered into a two-year
    maintenance contract in May of 2007...

But two years of regular maintenance did not resolve the
    problems and the maintenance contract was not renewed upon its termination in
    May 2009. Sometime in the summer of 2009 Christopher told the senior Woodbridge
    representative that he no longer believed that the problems were due to
    maintenance and that Woodbridge had been lying to me from day oneabout
    maintenance. Indeed, by the fall of 2009 the Plaintiffs were consulting with
    other HVAC service providers as to how to address the ongoing problems with the
    HVAC system which, by then, had been known to the Plaintiffs for close to three
    years.

The fact that Christopher had such knowledge [of a claim]
    well before November 2010 is confirmed by the other expert reports commissioned
    by the Plaintiffs. For example, the Pinchin Mould Report from November 2010
    indicates that Christopher had reported that the house has experienced
    mechanical problems since occupancy; Christopher further advised Pinchin that
    [d]ue to humid conditions over long periods of time, [the] house has shifted
    throughout, resulting in cupped floors throughout the house, and separation of
    crown mouldings, kitchen millwork and columns. The Pinchin Mould Report from
    November 2010 states that [t]he Client [Christopher] indicated that he had
    been experiencing heating failures over the last 5 years. The Kern Report
    prepared in December 2010 indicates that the boilers have not operated
    reliably since the start-up of the system [in 2006-07].

It is crystal clear from these reports, as well as
    Christophers Examination, that the Plaintiffs knew long before February 2010
    that the HVAC system was not functioning properly. Woodbridge was clearly
    responsible since they had installed the system

In any event, even if it were assumed that knowledge of the
    improper installation of the Quietside boilers was a necessary element of
    discovery of the claim, such knowledge was discoverable by the Plaintiffs prior
    to February 2010. Christopher had been advised by other HVAC service providers
    with whom he had consulted in late 2009 that the boilers had been installed
    improperly. It would have been a straightforward matter for Christopher to have
    contacted the manufacturer at that time, at which point he would have been
    advised of the improper installation by Quietside.

The record before me indicates that there were serious and sustained
    problems with the HVAC system from the time it was installed. The Plaintiffs
    were well aware of these problems from the time they occupied the house. [Emphasis
    added.]

[46]

Unlike
    my colleague, I see no error in the factual findings that would justify
    appellate intervention. The motion judge did not misapprehend the evidence. His
    findings were solidly grounded in the record before him. Accordingly, I would
    not give effect to this ground of appeal.

VI.

SECOND GROUND OF APPEAL: DID THE MOTION JUDGE ERR IN HIS APPROPRIATE
    MEANS ANALYSIS?

[47]

The
    Zeppas submit the motion judge erred in failing to find that a proceeding
    against Woodbridge was not an appropriate means to seek to remedy their
    injury, loss or damage, within the meaning of s. 5(1)(a)(iv) of the
Act
,
    until they received Quietsides November 2010 letter. Until that time, they
    argue, they were relying on the superior knowledge and expertise of Woodbridge,
    so time did not start to run until receipt of the Quietside letter.

[48]

In
Presidential MSH Corporation v. Marr Foster
    & Co. LLP
, 2017 ONCA 325, 135 O.R. (3d) 321, Pardu J.A.
    observed that the jurisprudence discloses two circumstances in which the issue
    of appropriate means under s. 5(1)(a)(iv) of the
Act
most often delays
    the date on which a claim is discovered. First, resorting to legal action might
    be inappropriate in cases where the plaintiff relied on the superior knowledge
    and expertise of the defendant, especially where the defendant undertook
    efforts to ameliorate the loss: at para. 26. Second, a legal action might not
    be appropriate if an alternative dispute resolution process offers an adequate
    alternative remedy and that process has not fully run its course: at para. 29.

[49]

The
    motion judge applied this jurisprudence. He held that the Zeppas did not
    discover their claim against Woodbridge during the time the two-year maintenance
    contract was in effect. At para. 30 of his reasons, the motion judge stated:

[T]he parties entered into a two-year maintenance contract in
    May of 2007. During this period, the Plaintiffs could reasonably maintain that
    they were relying on the superior knowledge and expertise of Woodbridge, and on
    the fact that Woodbridge was engaged in good faith efforts to remedy the
    concerns with the HVAC system. Based on the reasoning in Presidential MSH
    Corp. v. Marr, Foster & Co. LLP (
Presidential MSH Corp.
),
    it is possible that litigation was not then an appropriate means to address
    the concerns.

[50]

However, the motion judge found
    that
by the fall of 2009 the Plaintiffs were no longer relying on good
    faith efforts of Woodbridge to remedy the concerns, which clearly distinguishes
    the present circumstances from those in
Presidential MSH Corp
:

at para. 31.

[51]

That
    finding is firmly anchored in the evidence, especially the examination of
    discovery of Mr. Zeppa conducted on August 11, 2015. On his discovery, Mr.
    Zeppa talked extensively about events in mid to late 2009. His evidence
    included the following:

·

In mid to late 2009, he met with Mr. LaPosta and had a follow-up
    conversation with him about a month and a half later;
[1]

·

In the meeting, Mr. Zeppa advised that the system was not working
    and he was upset Woodbridge was taking the position that the Zeppas would have
    to pay for further changes;

·

During the course of the conversation, Mr. Zeppa said to Mr. LaPosta:
    youre full of  I dont believe it. Youre full of it. Youve been lying to
    me from day one  about maintenance. Youve been lying. Youve been lying;

·

At that point, Mr. Zeppa started making some inquiries of others.
    The system had never worked from day one and the problem had never been
    resolved;

·

Mr. Zeppa had several different guys trying to get the heat in
    his house back up, including Attilio and EM Air. Right after the conversation
    with Mr. LaPosta, Mr. Zeppa had people just coming over to patch it to get it
    working, just to get the heat working and the hot water working. This was in
    mid to late 2009;

·

Although these other companies would temporarily fix the problem,
    no matter who got the HVAC system back up, there was always the same routine of
    constant breakdown and repair;

·

In mid to late 2009, he heard from the other companies to which
    he was making inquiries that the Quietside boilers were junk and the systems
    done wrong. He heard a myriad of opinions from different guys who deal with
    this stuff on a daily basis;

·

Also by that time, based on the information Mr. LaPosta provided,
    Mr. Zeppa knew he would have to revamp the whole system.

[52]

Given
    that evidence from Mr. Zeppa, it was certainly open to the motion judge to
    conclude that by the fall of 2009 the Plaintiffs were no longer relying on
    good faith efforts of Woodbridge to remedy the concerns. I see no palpable and
    overriding error in that finding. Accordingly, I would not give effect to this
    ground of appeal.

VII.

THIRD GROUND OF APPEAL: DID THE MOTION
    JUDGE ERR IN HIS TREATMENT OF THE APPELLANTS MISREPRESENTATION CLAIM?

[53]

Next,
    the Zeppas submit the motion judges discoverability analysis was flawed
    because he failed to take into account that Woodbridge falsely represented to
    them that the problem was only one of maintenance.

[54]

I
    do not accept this submission. The motion judge clearly considered this issue
    at para. 31 of his reasons where he wrote, in part:

Sometime in the summer of 2009 Christopher told the senior
    Woodbridge representative that he no longer believed that the problems were due
    to maintenance and that Woodbridge had been lying to me from day oneabout
    maintenance. Indeed, by the fall of 2009 the Plaintiffs were consulting with
    other HVAC service providers as to how to address the ongoing problems with the
    HVAC system which, by then, had been known to the Plaintiffs for close to three
    years.

[55]

That
    evidence informed the motion judges findings that by the fall of 2009 the
    Zeppas were no longer relying on the efforts of Woodbridge to remedy their
    concerns or on its representations regarding maintenance. I see no palpable and
    overriding error in those findings. Consequently, I see no error in the motion
    judges finding that by that by the fall of 2009 the Zeppas knew a proceeding
    would be an appropriate means to remedy their injury, loss or damage.

[56]

In
    para. 115 of her reasons, my colleague takes a different view, concluding that
    the motion judge erred by failing to address separately the Zeppas
    misrepresentation claim. My colleague characterizes that misrepresentation
    claim as one based on assurances given by Woodbridge to Mr. Zeppa at a meeting
    in the fall of 2010. I would make two brief observations.

[57]

First,
    the Zeppas pleading of misrepresentation was a bald one, as described in para.
    23 above. They did not frame their misrepresentation claim in the manner my
    colleague has. Indeed, the Zeppas did not provide full particulars of the date
    or content of any alleged misrepresentation, as required by r. 25.06(8) of the
Rules
    of Civil Procedure
.

[58]

Second,
    as I noted in footnote 1 to para. 51 above, although Mr. Zeppa referred in his
    affidavit to a 2010 meeting with Woodbridge, throughout his examination for
    discovery he placed that meeting in 2009. Indeed, he testified that by November
    2010 he was not talking to Mr. LaPosta of Woodbridge.

VIII.

FOURTH GROUND OF APPEAL: DID THE MOTION
    JUDGE ERR IN HIS TREATMENT OF THE PRINCIPLE OF FRAUDULENT CONCEALMENT?

The issue stated

[59]

Finally,
    the Zeppas submit the motion judge erred by failing to take into account the
    issue of fraudulent concealment. They argue that: (i) Quietside told Mr. Zeppa in
    November 2010 that over the years the company had received many phone calls
    about the installation of the units in his home and had explained to the
    service company that their installation of the units was not a permitted one;
    (ii) Woodbridge did not disclose to the Zeppas that it had received information
    from Quietside that the installation was improper; as a result of which, (iii)
    such concealment of facts by Woodbridge should have led the motion judge to
    conclude that the limitation period did not begin to run until November 2010,
    on the basis of the equitable principle of fraudulent concealment.

[60]

I
    am not persuaded by this submission.

The governing legal principles

[61]

The
    equitable principle of fraudulent concealment was described by Dickson J. in
Guerin
    v. The Queen
, [1984] 2 S.C.R. 335, at p. 390:

[W]here there has been a fraudulent concealment of the
    existence of a cause of action, the limitation period will not start to run
    until the plaintiff discovers the fraud, or until the time when, with
    reasonable diligence, he ought to have discovered it. The fraudulent
    concealment necessary to toll or suspend the operation of the statute need not
    amount to deceit or common law fraud.

[62]

A
    succinct, but comprehensive, summary of the elements of the principle is found
    in the decision of Perell J. in
Colin v. Tan
, 2016 ONSC 1187, 81
    C.P.C. (7th) 130 at paras. 44-47:

Fraudulent concealment will suspend a limitation period until
    the plaintiff can reasonably discover his or her cause of action.

The constituent elements of fraudulent concealment are
    threefold: (1) the defendant and plaintiff have a special relationship with one
    another; (2) given the special or confidential nature of the relationship, the
    defendant's conduct is unconscionable; and (3) the defendant conceals the
    plaintiff's right of action either actively or the right of action is concealed
    by the manner of the wrongdoing.

Fraudulent concealment includes conduct that having regard to
    some special relationship between the parties concerned is unconscionable. For
    fraudulent concealment, the defendant must hide, secret, cloak, camouflage,
    disguise, cover-up the conduct or identity of the wrongdoing. The word
    fraudulent is used in its equitable (not common law) sense to denote conduct by
    the defendant such that it would be against conscience for him or her to avail
    himself of the lapse of time.

There is a causative element to the doctrine of fraudulent
    concealment because the legal policy behind fraudulent concealment is that if
    the plaintiff was unaware of his or her cause of action because of the wrong of
    the defendant, then the court will refuse to allow a limitation defence; i.e.,
the
    plaintiff must be ignorant of the cause of action because of the misconduct of
    the defendant
. [Citations omitted; Emphasis added.]

[63]

This
    equitable principle is not a rule of construction of limitations statutes. It
    is a principle that can take a case outside of the effect of a limitation
    provision and suspend the running of the limitation clock until such time as
    the injured party can reasonably discover the cause of action:
Giroux
    Estate v. Trillium Health Centre
(2005), 74 O.R. (3d) 341 (C.A.), at para.
    28.

[64]

This
    court has held that the principle of fraudulent concealment is available in
    cases involving limitation periods contained in statutes other than the
Act
,
    including: s. 38(3) of the
Trustee Act
, R.S.O. 1990, c. T.23:
Giroux
    Estate
;
Roulston v. McKenny
, 2017 ONCA 9, 135 O.R. (3d) 632; the
    limitation period under the
Real Property Limitations Act
, R.S.O.
    1990, c. L.15:
Anderson v. McWatt
, 2015 ONSC 3784, at para. 77, appeal
    dismissed 2016 ONCA 553; and the limitation period created by s. 82(2) of the
    former
Employment Standards Act
, R.S.O. 1990, c. E.14:
Halloran v.
    Ontario (Employment Standards Act Referee)
(2002), 217 D.L.R. (4th) 327
    (C.A.), at para. 35.

[65]

As
    to claims governed by the
Act,
s. 15 of the
Act
expressly
    addresses the effect of the concealment of facts on the running of the 15-year ultimate
    limitation period. Specifically, s. 15(4)(c) provides that the ultimate
    limitation period does not run during any time in which:

(c) the person against whom the claim is made,

(i)
    wilfully conceals from the person with the claim the fact that injury, loss or
    damage has occurred, that it was caused by or contributed to by an act or
    omission or that the act or omission was that of the person against whom the
    claim is made, or

(ii)  wilfully
    misleads the person with the claim as to the appropriateness of a proceeding as
    a means of remedying the injury, loss or damage.

[66]

No
    similar language is found in relation to the basic two-year limitation period
    in ss. 4 and 5 of the
Act
. Mew, Rolph & Zacks offer the view, at §6.103
    of their text, that:

There is no statutory provision for wilful concealment or fraudulent
    concealment in relation to the basic two-year limitation period set out in the
    Act, nor was there any such provision contained in the
Limitation Act, 2002
predecessor statute. There is no need for such a provision, because the
    discoverability principle achieves the same result.

[67]

The
    jurisprudence supports this view. The intersection of the principle of
    fraudulent concealment with the basic two-year limitation period in ss. 4 and 5
    of the
Act
received some consideration in the case of
Dhaliwal v.
    Lindsay
, 2009 CanLII 60415 (O.N.S.C.), affirmed 2010 ONCA 493, leave to
    appeal to S.C.C. refused, [2010] S.C.C.A. No. 401. In that case, the plaintiff
    commenced a 2008 medical malpractice action against doctors who had treated her
    at the end of 2003. In December 2005, the plaintiff had obtained documents
    concerning her treatment. She contended that the notes for December 2003 in the
    hospital records attempted to conceal the involvement of the defendant doctors
    and amounted to fraudulent concealment. However, the documentation received by
    the plaintiff in December 2005 also included OHIP statements that disclosed the
    involvement of the defendant doctors in her care.

[68]

The
    motion judge granted summary judgment dismissing the action as statute-barred
    under ss. 4 and 5 of the
Act
. As part of her analysis, she commented,
    at paras. 18 and 19, on the inter-play between the
Act
and the
    principle of fraudulent concealment:

The Plaintiffs argue, in effect, that an allegation of
    fraudulent concealment would operate to defeat a limitation period altogether.
    This interpretation cannot be sustained in light of the fact that the common
    law doctrine of fraudulent concealment is an equitable principle which operates
    to stay the operation of a limitation period by the invocation of the Courts
    equitable jurisdiction to prevent an injustice (
Giroux Estate v. Trillium
    Health Centre
, 2004 CanLII 18056 (ON SC), [2004] O.J. No. 557 (Ont. C.A.)
    at para. 22; See also:
M.(K.) v. M.(H.)
, [1992] 3 S.C.R. 60). When
    applicable, it will suspend the running of the limitation clock until such
    time as the injured party can reasonably discover the cause of action (
Giroux
    Estate, supra
, at para. 28).

Assuming for the sake of this motion that the Defendants did
    fraudulently conceal their involvement, the effect of this on discoverability
    was to defer the date upon which their involvement could reasonably be said to
    have been discoverable until the date upon which the Plaintiffs (though
    counsel) had the decoded OHIP statements that indicated that they had treated
    Ms. Dhaliwal on the dates in issue. As indicated above, there can be no
    dispute that the decoded OHIP statements were in the hands of Plaintiffs
    then-counsel by December 7, 2005.

[69]

In
    a brief endorsement dismissing the appeal from the motion judges decision,
    this court did not accept the appellants contention that the motion judge had
    improperly conflated the equitable principle of fraudulent concealment with the
    distinct doctrine of discoverability stating, at para. 3: [T]he motion judges
    analysis of the intersection of these two principles in this case was entirely
    consistent with the current governing case law.

[70]

Then,
    in
Kim v. The Manufacturers Life Insurance Company
, 2014 ONCA 658,
    this court rejected the appellants argument that the basic limitation period
    under the
Act
should be suspended because of the respondents alleged
    fraudulent concealment of documents. On the facts of that case, any fraudulent
    concealment of documents would not have prevented the appellant from knowing he
    had a cause of action: at paras. 3-5.

[71]

The
    decisions in
Dhaliwal
and
Kim
, together with the plain language
    of ss. 4 and 5 of the
Act
, support the conclusion that there is no
    independent work for the principle of fraudulent concealment to perform in assessing
    whether a plaintiff has commenced a proceeding within the basic two-year
    limitation period. That is because the elements of the discoverability test set
    out in ss. 5(1)(a) and (b) address the situation where a defendant has
    concealed its wrong-doing. If a defendant conceals that an injury has occurred,
    or was caused by or contributed to by its act or omission, or that a proceeding
    would be an appropriate means to seek to remedy it, then it will be difficult
    for the defendant to argue that the plaintiff had actual knowledge of those
    facts until the concealed facts are revealed. Whether the plaintiff ought to
    have known of those matters, given their concealment, is a matter for inquiry
    under s. 5(1)(b).

[72]

If
    the defendants concealment of facts results in a lack of actual or objective
    knowledge by the plaintiff of the elements set out in s. 5(1)(a) of the
Act
,
    then the plaintiff does not discover his or her claim until the date the
    concealed facts are revealed to or known by the plaintiff, at which point time
    begins to run. That is to say, the analysis required by s. 5(1) of the
Act
captures the effect of a defendants concealment of facts material to the
    discovery of a claim.

Application of the principles to the present case

[73]

In
    the present case, the motion judge considered the Zeppas argument that
    Woodbridges concealment of the information from Quietside about the improper
    installation of the HVAC system postponed the running of the limitation period
    until November 2010. At para. 37 of his reasons, the motion judge rejected that
    submission, writing:

The Plaintiffs further argued that Woodbridge had been told by
    Quietside that the HVAC system had been installed improperly and had chosen to
    conceal such information. Even assuming this to be the case, it would not
    postpone the running of the limitations period. All that is required is that
    the Plaintiffs have discovered their claim and, as noted above, it is not
    necessary that they know why or how the claim arose. Thus even if Woodbridge had
    withheld information about the underlying cause of the claim, such withholding
    would not postpone the commencement of the limitation period.

[74]

I
    see no error in the motion judges analysis. It is consistent with the legal
    principles applied by this court in
Dhaliwal
and
Kim
concerning the interplay between the principle of discoverability in s. 5 of
    the
Act
and that of fraudulent concealment. Also, it rests on
    reasonable factual findings made by the motion judge about when the Zeppas
    discovered their claim: see paras. 45 and 46 above. Accordingly, I would not
    give effect to this ground of appeal.

IX.

DISPOSITION

[75]

For
    the reasons set out above, I see no reversible error in the motion judges
    conclusion that the appellants action was statute-barred. I would dismiss the
    appeal.

[76]

Based
    on the agreement of the parties about the costs of the appeal, I would award
    the respondents costs of the appeal fixed at $5,000, inclusive of disbursements
    and applicable taxes.

David
    Brown J.A.
I agree.
G.R. Strathy C.J.O.

Feldman JA. (dissenting):

[77]

I
    agree with Brown J.A. that the central issue on this appeal concerns the motion
    judges determination of when time began to run for the appellants action
    against the respondent.

[78]

In
    my view, the motion judge erred in fact and in law by finding that the
    appellants did not need to know that the respondent had done anything to cause
    them damage in order to know that they had a claim in negligence, breach of
    contract and misrepresentation, and by finding that the fact that the
    respondent fraudulently concealed its wrongdoing from the appellants did not
    toll the running of the basic two-year limitation period.

[79]

Time
    only began to run on the negligence and breach of contract claims in November
    2010, when the appellants learned from the manufacturer that the reason the
    system never worked was because the respondent had installed it incorrectly.
    That information was fraudulently concealed from the appellants by the
    respondent. It was neither discovered nor reasonably discoverable before the
    appellant, Mr. Zeppa, called the manufacturer, Quietside and was told that: 1)
    the service company had been in touch with Quietside a number of times about
    the appellants system; 2) Quietside told the service company that it had
    installed the components of the appellants system incorrectly; and 3)
    Quietside had also told the service company that was why the system would never
    function properly. There was no issue that the service company was the
    respondent, Woodbridge.

[80]

The
    respondent never disclosed this information to the appellant.

[81]

In
    my view, the motion judge erred in law and made palpable and overriding errors
    of fact in deciding this motion on summary judgment by making the three
    findings referred to by my colleague. He also erred in law by failing to
    address the misrepresentation claim based on the respondents assurance in late
    2010. The claim for misrepresentation was therefore brought within the two-year
    limitation period.

[82]

The
    motion judge erred in fact on the record by finding that: 1) Mr. Zeppa was no
    longer relying on Woodbridge by the fall of 2009 and by failing to give effect
    to the fact that the system was still working up to the fall of 2010.

[83]

He
    erred in law by finding that: 2) the Zeppas did not need to know the reason why
    their HVAC system was not working in order to discover their claim against
    Woodbridge; and 3) Woodbridges concealment of the information it received from
    Quietside that its improper installation of the system was the cause of the
    ongoing problems did not postpone the running of the two-year limitation
    period.

[84]

The
    motion judge also erred in fact and in law by finding that the appellants
    reasonably could have discovered that the respondent had improperly installed
    the system prior to February 2010, and by relying on that finding. Finally, he
    erred in law by failing to address the claim for misrepresentation and by
    failing to find that that claim was brought within the two-year limitation
    period.

(1)

The motion judges findings regarding timing constituted a palpable and
    overriding error of fact

[85]

The
    motion judge made key findings of fact that are inconsistent. First, the motion
    judge found, at paras.13-14:

It appears that the system
    functioned until the fall of 2010 when it failed again. Christopher had a
    further meeting with Woodbridge representatives and then decided to reach out
    to the U.S. manufacturer of the HVAC system, Quietside Corporation
. He
    called and then emailed Quietside, indicating that he had been told that the
    Quietside boilers were terrible boilers and inquiring as to whether there
    were other qualified installers in Ontario who could be hired to remedy the
    problems.

On November 1, 2010, Quietside
    replied by way of a letter in which they indicated that they had received calls
    over the years from the service company that had installed this particular
    system. Quietside reported that, based on the information provided by
    Christopher and the service company, as well as photographs provided by
    Christopher, the system had been installed incorrectly. In Quietsides opinion,
    this incorrect installation was responsible for the ongoing problems being
    experienced by the plaintiffs. [Emphasis added.]

[86]

I
    note that in his affidavit for the summary judgment motion, the representative
    of Woodbridge, Mr. LaPosta, stated that while he did not specifically recall
    his conversations with Mr. Zeppa following the installation where Mr. Zeppa
    complained of numerous problems with the HVAC system, he did not have any
    reason to disagree that Mr. Zeppa made several complaints. Mr. Zeppas
    uncontradicted evidence was that when he met with Woodbridge and a
    representative of Ecologix, the firm that Woodbridge used to design the HVAC
    system, they told him, in effect, that they would get it sorted out and that he
    should not worry.

[87]

As
    to the date of that meeting, the motion judge noted in a footnote to paragraph
    13, that Mr. Zeppa said in his affidavit that he met with Woodbridge in the
    fall of 2010, but in answer to a question on his examination, he said his last
    meeting was in 2009. The trial judge stated that despite that difference, he
    was prepared to assume for the purposes of the motion that a meeting between
    Mr. Zeppa and Woodbridge did occur in the fall of 2010.  The 2010 date in
    paragraph 13 is therefore a finding of fact by the motion judge on this summary
    judgment motion.

[88]

Then,
    at para. 35, the motion judge made the further finding:

It is crystal clear from these
    reports, as well as Christopher Zeppas Examination, that the Plaintiffs knew
    long before February 2010 that the HVAC system was not functioning properly.
    Woodbridge was clearly responsible since they had installed the system.
    Moreover, by late 2009, Christopher was no longer looking to Woodbridge to
    remedy the situation; by this time there was no question but that a legal
    proceeding was an appropriate means to remedy the loss or damage. These are
    the elements sufficient to cause the limitation period to commence running.

[89]

The
    two findings in respect of timing are contradictory and inconsistent. While the
    motion judge first found that the system was still working in the fall of 2010
    and that the appellant met with Woodbridge about the problem in late 2010, the
    motion judge ignored those findings when he later found that by late 2009, the
    appellant knew the system was not functioning properly and he was no longer
    looking to Woodbridge to remedy the situation.

[90]

This
    is a critical inconsistency because the latter findings formed the basis for
    the motion judges conclusion that the appellants knew they had a claim
    against the respondent well before February 2010.

[91]

The
    motion judge also never explained why it would have been appropriate to bring a
    legal proceeding against Woodbridge in 2009 when the HVAC system was still
    working until the fall of 2010.

(2)

The motion judge erred in law by holding that the appellants did not
    need to know the act or omission by the respondent that caused the damage

[92]

The
    motion judge found, at para. 33, that it was not necessary for Christopher to
    have knowledge of the fact that the Quietside boilers were installed improperly
    in order for the limitation period to commence running. What was needed was
    knowledge, actual or imputed, that he had a claim against Woodbridge. This
    was a legal error.

[93]

In
    the circumstances of this case, knowledge of the improper installation was an
    essential element of discoverability of the appellants claims for negligence
    and breach of contract.

[94]

In
    order for the basic limitation period to begin under s. 5(1) of the
Limitations Act, 2002
, S.O. 2002, c. 24, Sched. B, the person with the
    claim must know (or ought reasonably to have known): 1) that the injury, loss
    or damage occurred; 2) that the injury, loss or damage was caused by or
    contributed to by an act or omission; 3) that the act or omission was that
    of the person against whom the claim is made; and 4) that a proceeding would be
    an appropriate means to seek to remedy it. Under ss. 5(2), a
person with a claim is presumed to have known of the four matters referred to
    in ss. 5(1) on the day the act or omission on which the claim is based took
    place, unless the contrary is proved.

[95]

Until
    Woodbridges improper installation was revealed, the Zeppas knew that the
    system had many problems, but they did not know that the problems were caused
    by the act of improper installation by the respondent. They did not know of any
    act or omission by Woodbridge or the day it occurred.

[96]

In
    fact, when the Zeppas first came to Woodbridge with complaints, Woodbridge
    informed them that the problems with the system were due to lack of
    maintenance. There were no problems with the HVAC system itself and no
    suggestion that the problem was caused by improper installation. On the basis of
    Woodbridges assurances, the Zeppas entered into a two-year maintenance
    agreement. This cost them approximately $4600.

[97]

However,
    Woodbridge knew that maintenance would never fix the HVAC system. Woodbridge
    concealed the fact that its faulty installation of the boilers was the central
    cause of the Zeppas problems. Until Quietside revealed that fact to the
    Zeppas, Woodbridges fraudulent concealment prevented the Zeppas from knowing
    whom to hold responsible for the damage to their family home and why.

[98]

Woodbridge
    did not provide the Zeppas with a written warranty guaranteeing that the HVAC
    system would function properly, nor was the action based on a breach of
    warranty (including any implied warranty under the
Sale of Goods Act
,
    R.S.O. 1990, c. S.1). The action is framed in negligence and breach of
    contract. The contract is based on the Zeppas acceptance of a written quote
    from Woodbridge for the supply of labour and materials for a project described
    as Heating, Ventilation & Pool Heating for Pool Room.

[99]

If
    the action had been pleaded as a breach of an implied warranty, or if
    Woodbridge had provided an explicit warranty, the Zeppas knowledge that the
    HVAC system was not working properly may have been sufficient to trigger the
    running of the limitation period. But that is not the claim here.

[100]

Problems that
    can be resolved through maintenance are not necessarily caused by the acts or
    omissions of the installer. The motion judges finding that the Zeppas
    problems were clearly caused by Woodbridges acts or omissions was not based on
    any evidence other than the fact that there were ongoing problems with the HVAC
    system. He treated the cause of action as if it were for breach of warranty and
    not for negligence or breach of contract in the installation of the system.

[101]

Mr. Zeppa first
    contacted Quietside because he had heard that its boilers were terrible and
    that was why Quietside was no longer operating in Canada, i.e. the boilers had
    a possible manufacturing defect or were inherently faulty. When he asked the
    manufacturer for assistance, Quietside responded to his inquiries with the
    letter that revealed Woodbridges faulty installation of the boilers and
    Woodbridges knowledge that its faulty installation was the cause of the
    problems.

[102]

This case is
    distinguishable from
McSween v. Louis
(2000), 132 O.R. (3d) 304
    (C.A.), where the plaintiff knew that her injury was caused by a medical
    operation, but needed an expert report to learn what precise error was made by
    the surgeon. While that report was needed for trial, the court held that the
    level of detailed understanding provided by the report was not required for the
    plaintiff to know she had a cause of action against the surgeon.

[103]

Mr. Zeppas
    evidence demonstrates why knowledge that the HVAC system was not working properly
    was not enough to trigger the basic limitation period. In the face of
    Woodbridges assurances, Mr. Zeppa reasonably suspected that the boiler
    manufacturer may have been responsible for the HVAC problems. Woodbridges
    false assurances continued until late 2010.

(3)

The motion judge erred in law by finding that the respondents
    fraudulent concealment did not postpone the running of the limitation period

[104]

In its evidence,
    the respondent did not deny that it had fraudulently concealed from the
    appellants the fact that the cause of the problems with the HVAC system was its
    improper installation of the boilers; it also did not deny that it had learned
    from Quietside that its installation was the cause of the problems years before
    the November 2010 letter. However, the motion judge found that any fraudulent
    concealment did not postpone the running of the limitation period because it
    was not necessary for the appellants to know how or why their claim arose. I
    have already addressed why the latter finding constitutes an error of law in
    the circumstances of this case and was not in compliance with s. 5(1) of the
Limitations
    Act
.

[105]

Although the
    effect of fraudulent concealment is not stated in the description of
    discoverability in s. 5 of the
Limitations Act, 2002
, it is referred
    to in s. 15(4). The structure of ss. 5 and 15(4) confirms that the legislature
    intended fraudulent concealment to be analyzed within discoverability. The
    central purpose of the
Act
also supports this position.

[106]

Section 15(4)
    prescribes an ultimate limitation period that begins to run when the act or
    omission on which the claim is based occurs. The discoverability principle does
    not postpone its running, with one exception: the ultimate limitation period
    will not run when the claim is not discoverable because of fraudulent
    concealment. The
Act
defines fraudulent concealment and its effect in
    s. 15(4)(c) using the language of discoverability:

(4) The
    limitation period established by subsection (2) does not run during
    any time in which,

(c) the person
    against whom the claim is made,

(i)
wilfully conceals from the person with the claim
    the fact that injury, loss or damage has occurred, that it was caused by or
    contributed to by an act or omission or that the act or omission was that of
    the person against whom the claim is made
, or

(ii)      wilfully misleads the person with the claim as to
    the appropriateness of a proceeding as a means of remedying the injury, loss or
    damage. [Emphasis added].

[107]

It was necessary
    for the legislature to explicitly provide for the effect of fraudulent
    concealment on the ultimate limitation period because discoverability does not
    otherwise apply to that limitation period. But there is no need to specifically
    refer to it in s. 5  it forms part of the concept of discoverability. See Mew,
    Rolph & Zacks statement in
The Law of Limitations
,
3rd ed. (Toronto: LexisNexis, 2016) at
§6.103
:

There is no statutory provision
    for wilful concealment or fraudulent concealment in relation to the basic
    two-year limitations period set out in the Act, nor was there any such
    provision contained in the
Limitations Act, 2002
predecessor statute.
There
    is no need for such a provision, because the discoverability principle achieves
    the same result
. [Emphasis added].

[108]

It is presumed
    that legislation is internally consistent and coherent, and that provisions
    work together as parts of a functioning whole: Ruth Sullivan,
Sullivan on
    the Construction of Statutes
, 6th ed. (Toronto: LexisNexis, 2014) at
    §11.2. The basic and ultimate limitation periods will run concurrently in most
    circumstances. Where fraudulent concealment operates to prevent the running of
    the ultimate limitation period, it must have the same effect on the basic
    limitation period.

[109]

As outlined in
    s. 15(4) of the
Act
, the effect of a defendants fraudulent
    concealment of essential facts is to toll the limitation period until the
    plaintiff learns about the concealed facts (either from the defendant or in
    some other way). This is consistent with the central purpose of limitations
    statutes, referred to as statutes of repose, which is to give defendants the
    peace of knowing that they cannot be sued for something they may have done,
    once the limitation period has passed.

[110]

The motion judge
    did not consider Woodbridges fraudulent concealment to be relevant to
    discoverability. In my view, that is an error of law. The effect of that
    approach is to allow the respondent to profit from its fraudulent concealment
    and obtain the benefit of the limitation period by misleading the appellants.
    This does not strike the right balance between providing plaintiffs with
    sufficient time to commence claims and providing defendants with the peace of
    knowing they cannot be sued after a fixed period of time has passed: see
    Ontario, Legislative Assembly,
Official Report of Debates (Hansard)
,
    37th Parl., 3rd Sess., No. 65A (2 December 2002) at 1550 (David Young).
    Allowing a defendant to gain that peace by concealing the information the
    plaintiff must know to bring the action is anathema to the purpose of
    limitations statutes.

(4)

The motion judge erred in fact and in law by finding that the appellants
    reasonably could have discovered that the respondent had improperly installed
    the system prior to February 2010, and by relying on that finding

[111]

Finally, the
    motion judge found that, even if knowledge of the improper installation of the
    system was a necessary element of discovery of the claim, such knowledge was
    discoverable by the appellants prior to February 2010.

[112]

The motion judge
    stated that the Zeppas were advised by other HVAC service providers about the
    improper installation in 2009, and that it would have been a straightforward matter
    for them to have contacted the boiler manufacturer at that time. The only
    evidence that the motion judge appears to have relied on to ground his
    assertion that the service providers advised the appellants about the improper
    installation is Mr. Zeppas statement that he was told the systems done
    wrong by one HVAC service provider in 2009.

[113]

There was no
    evidence in the record that the Zeppas understood the system being done wrong
    to mean that it was improperly installed by Woodbridge. Furthermore, this
    statement was only one of many competing opinions presented to the Zeppas in
    2009. These opinions appeared to reflect divergent views on the source of the
    HVAC problems, including that the boilers were junk.

[114]

Because the
    motion judge discounted the relevance of fraudulent concealment, he did not
    consider the legal effect of the respondents fraudulent concealment on when
    the appellants ought reasonably to have discovered the actual cause of the
    problem. In my view, it lies ill in the mouth of the respondent to suggest that
    the appellants should have taken steps earlier to discover what was really
    wrong with their system in the face of the respondents fraudulent concealment
    of its wrongdoing.

(5)

The motion judge erred in law by failing to address the misrepresentation
    claim

[115]

The motion judge
    did not separately consider whether the claim based on misrepresentation was
    statute-barred. As discussed above, the motion judge found that the parties met
    in the fall of 2010. The only evidence of that meeting was Mr. Zeppas
    evidence, which Mr. La Posta did not refute, that the appellant was assured
    that they would get it sorted out and that he should not worry. The claim based
    on this misrepresentation was made within two years. The motion judge erred by
    failing to so find.

Conclusion

[116]

The Zeppas did
    not know that Woodbridge was responsible for their misfortune by improperly
    installing the HVAC system because Woodbridge concealed that essential fact.
    Their claim for negligence and breach of contract was not discoverable until
    that fact was revealed on November 1, 2010. Their claim based on
    misrepresentation was brought within two years.

[117]

I would allow
    the appeal, and set aside the finding that the action is statute-barred.

Released: GRS Jan 25, 2019

K. Feldman J.A.

[1]
. In
    his affidavit in response to the summary judgment motion, Mr. Zeppa appears to
    place this conversation at the end of 2010: at para. 13. However, throughout
    his examination for discovery, he repeatedly gave evidence that the
    conversation and meeting took place in mid to late 2009. He also stated that by
    November 2010, he was not talking to Mr. LaPosta anymore.


COURT OF APPEAL FOR ONTARIO

CITATION: Anthony v. McKenzie, 2019 ONCA 147

DATE: 20190225

DOCKET: C65491

Feldman, Brown and Miller JJ.A.

BETWEEN

Gerald Anthony

Plaintiff (Appellant)

and

Gary Gordon McKenzie and Jennifer McKenzie

Defendants (Respondents)

Yuce Baykara, for the appellant

Craig Losell, for the respondents

Heard and released orally: February 21, 2019

On appeal from the
    judgment of Justice Phillip Sutherland of the Superior Court of Justice, dated May
    8, 2018.

REASONS FOR DECISION

[1]

Mr. Anthony appeals from the motion judges dismissal of his action
    seeking a declaration of adverse possession over part of the respondents
    property.

[2]

Mr. Anthony submits the motion judge failed entirely to consider
    whether the evidence of his predecessor in title, Mr. Eric Fulton, disclosed a
    mistaken understanding as to the location of the boundary of his own property.

[3]

We do not agree.

[4]

The motion judge expressly dealt with that issue. At para. 26 of his
    reasons he identified the evidence of Mr. Fulton that demonstrated some
    inaccuracy in his understanding about the location of the boundary given that
    he mowed a small part of the disputed lands in the vicinity of his house.
    However, the motion judge was required to consider that evidence together with
    the rest of Mr. Fultons evidence. He did so, noting that the R-Plan filed by
    the Fultons in support of their application for conversion to the
Land
    Titles Act
, R.S.O. 1990, c. L.5 regime was consistent with Mr. Fultons
    evidence that he had no claim and made no claim for adverse possession over the
    disputed lands. Mr. Fulton also testified that he never mowed the area that
    forms the bulk of the disputed lands  the area outlined in blue on Exhibit 1
    to his cross-examination. Based upon the totality of the evidence, the motion
    judge concluded that the Fultons did not have any intention to exclude as
    demonstrated by their actions and by their words.

[5]

We see no error in that conclusion. Regardless of the limited use the
    Fultons may have made of a small portion of the disputed lands in the immediate
    vicinity of their house, the evidence was overwhelming that they had no
    intention to use the land to the exclusion of its true owner.

[6]

Mr. Anthony advances another fact-based ground of appeal. He contends
    the motion judge erred in finding that an old fence on the property did not
    create a boundary and did not indicate an intention to exclude. Key to this
    submission is the assertion contained in his affidavit, at para. 17, that
    either the Hashems or the Fultons erected a fence from the front of the
    property to the back closely following the top of [the] bank on the east side
    of the pond. That assertion had no support in the evidence. Mr. Fulton gave no
    such evidence. As the motion judge observed at para. 21, there was no evidence
    provided on the conduct or intentions of the Hashems.

[7]

Mr. Anthony did not pursue on appeal the motion judges dismissal of his
    alternative claim for an easement over some unspecified part of the disputed
    lands.

[8]

The appeal is dismissed.

[9]

Mr. Anthony shall pay the respondents their costs of the appeal fixed in
    the amount of $13,864.20, inclusive of disbursements and H.S.T.

K. Feldman J.A.

David Brown J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Arsenijevich v.
Ontario
    (Provincial Police)
, 2019 ONCA 150

DATE: 20190227

DOCKET: C64957

Pepall, Trotter and Harvison Young JJ.A.

BETWEEN

Branko Arsenijevich

Plaintiff (Appellant)

and

Adrian Garner (Badge #8155), Ontario Provincial
    Police, Her Majesty the Queen in Right of Ontario

Defendants (Respondents)

Branko Arsenijevich, acting in
    person

Colin Bourrier, for the respondents

Heard: February 7, 2019

On appeal from the
    order of Justice C. Stephen Glithero of the Superior Court of Justice, dated
    January 15, 2018.

REASONS FOR DECISION

[1]

The appellant appeals from an order striking out his statement of claim
    as disclosing no reasonable cause of action and dismissing his action.

[2]

The action was commenced on October 2, 2015. The appellant claimed
    punitive damages, travel expenses, interest, and costs allegedly arising from
    the stopping, and subsequent detainment and impoundment of his vehicle by an
    OPP officer. He asserted that the respondents had breached his rights as
    guaranteed by s. 1(a) of the
Canadian Bill of Rights
, S.C. 1960, c. 44.

[3]

On its face, the pleading is wholly deficient.  On three or four
    occasions counsel for the respondents advised the appellant of the deficiencies.
    On December 17, 2015, counsel for the respondents wrote to the appellant
    encouraging him to seek legal advice and to consider discontinuing his action.
    The appellant did not respond and did not amend his pleading. Ultimately, the
    respondents successfully moved to strike out the claim under r. 21.01(1)(b) of
    the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194.

[4]

On October 18, 2018, the appellant sought and was granted an adjournment
    to permit him to retain counsel for this appeal. No counsel appeared on his
    behalf at the hearing before this court and he proceeded as a self-represented
    litigant.

[5]

In striking out the statement of claim and dismissing the action, the motion
    judge applied the correct test. He recognized that the statement of claim fails
    to plead any material facts in support of the purported
Canadian Bill of
    Rights
breach and the theft allegation. There is nothing in the pleading
    that suggests that the respondents were acting outside the scope of their authority
    in stopping the appellant and causing the vehicle to be towed.

[6]

The motion judge correctly concluded that the OPP is not a legal entity
    capable of being sued: see
McNabb v. Ontario (Attorney General)
(2000),
    50 O.R. (3d) 402 (S.C.), at paras. 25-30. He also correctly concluded that the
    appellants claim, on its face, was incapable of success and that the action
    should be dismissed. We would note that this court upheld the dismissal of a claim
    mirroring the appellants on the basis that it lacked legal merit and was
    frivolous and vexatious: see
Corsi v. Skanes
, 2018 ONCA 661, 33 M.V.R.
    (7th) 252.

[7]

Although not raised at any stage in this action, we do note that the
    respondents had filed a statement of defence before bringing their motion to
    strike under r. 21.01(1)(b). Generally, a defendant should move to strike a
    claim as disclosing no reasonable cause of action prior to delivery of a
    statement of defence:
Brozmanova v. Tarshis
, 2018 ONCA 523, 81
    C.C.L.I. (5th) 1, at para. 26. However, where as in this case, the statement of
    claim is so facially deficient and largely incomprehensible, this step by the
    respondents is not fatal. In addition, it is evident from the contents of their
    pleading that the respondents took issue with the legal sufficiency of the appellants
    claim. Moreover, the motion judges determination was in keeping with the
    direction in r. 1.04 of the
Rules of Civil Procedure
that the rules be
    liberally construed to secure the just, most expeditious and least expensive
    determination of every civil proceeding on its merits.

[8]

The motion judge did not grant the appellant leave to amend. He noted
    that the appellant had ample opportunity to amend his pleading but had failed
    to do so. We see no reason to interfere with his disposition.

[9]

Lastly, we see no error in the motion judges conduct of the proceedings
    before him. He was correct that in the Superior Court of Justice, the appellant
    may either represent himself or be represented by counsel:
Rules of Civil
    Procedure
,

r. 15.01(3).
[1]
This is unlike proceedings under the
Provincial Offences Act
, R.S.O.
    1990, c. P. 33 in the Ontario Court of Justice where a defendant may act
    personally or by representative (as defined in s. 1(1) of the
Provincial
    Offences Act
), such as in the case of
R. v. Allahyar
, 2017 ONCA
    345, 138 O.R. (3d) 233. The appellants friend was welcome to attend at the
    Superior Court of Justice with the appellant but could not be his representative
    before that court and therefore could not make submissions on his behalf.

[10]

For these reasons, the appeal is dismissed with costs to be paid by the
    appellant to the respondents fixed in the amount of $1,000 inclusive of
    disbursements and applicable tax.

S.E. Pepall J.A.

G.T. Trotter J.A.

Harvison Young J.A.

[1]

Any other party to a proceeding may act in person or be
    represented by a lawyer: r. 15.01(3).


COURT OF APPEAL FOR ONTARIO

CITATION: Baraz v. Vorobyev, 2019 ONCA 90

DATE: 20190207

DOCKET: C65822

Hourigan, Miller and Paciocco JJ.A.

BETWEEN

Anastasia Baraz

Applicant (Respondent)

and

Victor Vorobyev

Respondent (Appellant)

Victor Vorobyev, acting in person

Anastasia Baraz, acting in person

Heard and released orally: February 6, 2019

On appeal from the order of Justice Jane Ferguson of the Superior
    Court of Justice, dated August 1, 2018.

REASONS FOR DECISION

[1]

The respondent, Anastasia Baraz, and the appellant, Victor Vorobyev,
    were married on January 6, 2018. Problems emerged immediately. The parties
    never cohabitated. On May 9, 2018 Ms. Baraz applied for a divorce from Mr. Vorobyev
    on the grounds of his physical or mental cruelty. The factual foundation provided
    in her application does not allege physical cruelty, but raises issues of
    mental cruelty alone.

[2]

In his pleadings in response, Mr. Vorobyev denied mental cruelty on his
    part, and he contested the factual foundation that Ms. Baraz relied upon.
    However, he too asked for a divorce, alleging mental cruelty against Ms. Baraz.

[3]

A pretrial conference was held on August 1, 2018. The pretrial
    conference judge evidently treated the proceeding as having been settled in
    light of the shared desire to end the marriage based on mental cruelty, and
    endorsed the record, [Order to go] that the parties are divorced under all the
    circumstances.

[4]

We agree with the appellant that the pretrial conference judge erred in
    granting a divorce on the ground of mental cruelty in the absence of the
    agreement of the parties that one or the other of them experienced mental
    cruelty caused by the other. Cross-allegations made by the parties that the
    other acted with mental cruelty do not represent agreement.

[5]

Mr. Vorobyevs disquiet with the way the divorce was granted is
    understandable even though he sought a divorce. The pretrial conference judge
    endorsed the respondents application record, granting an order that was
    requested based on Mr. Vorobyevs mental cruelty. The impression is created
    that the divorce was granted because of Mr. Vorobyevs cruelty. This is a
    stigmatizing finding. As this court recognized in
Knoll v. Knoll
,
    [1970] 2 O.R. 169, cruelty is not a trivial act but one of a grave and
    weighty nature. The pretrial conference judge may have achieved a pragmatic
    outcome, but it was unfair to Mr. Vorobyev.

[6]

We therefore set aside the divorce order and remit the matter back for a
    retrial. It will be a year on February 17, 2019 since the separation date
    identified by the respondent in her application. When that date arrives the
    parties will be eligible for a no-fault divorce. That may provide a preferable
    route to ending the marriage, but that is for the parties to determine.

[7]

No costs will be ordered in the matter.

C.W. Hourigan J.A.

B.W. Miller J.A.

David M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Beaver v.
    Hill, 2019 ONCA 156

DATE: 20190227

DOCKET: C64766

Lauwers, van Rensburg
    and Nordheimer JJ.A.

BETWEEN

Brittany Beaver

Applicant (Respondent)

and

Kenneth Hill

Respondent (Appellant)

Chris G. Paliare, Bryan R.G. Smith, and Andrew K.
    Lokan, for the appellant

Harold Niman, Martha McCarthy, Sarah Strathopolous,
    Joanna Radbord, and Scott Byers, for the respondent

Manizeh Fancy and Estee L. Garfin, for the Attorney
    General of Ontario, intervenor

Heard: September 11, 2018

On appeal from the order of Justice
    D.L. Chappel of the Superior Court of Justice, dated December 8, 2017, with
    reasons reported at 2017 ONSC 7245, 4 R.F.L. (8th) 53, and costs reasons
    reported at 2018 ONSC 3352, 8 R.F.L. (8th) 288.

COSTS DECISION

[1]

In the courts judgment respecting the appeal by the father from a costs
    award, with reasons reported at 2018 ONCA 840, Nordheimer J.A. invited written
    submissions on the costs of the appeal.

[2]

The appellant asserts that he was substantially successful in the appeal
    and seeks partial indemnity costs in the amount of $40,000, inclusive of
    disbursements and HST. He says that this is a reduction from the partial indemnity
    amount of over $67,000 that would apply based strictly on time spent.

[3]

The respondent submits that she was relatively more successful and
    should be awarded partial indemnity costs in the amount of $30,805, including
    costs of the stay motion heard by Roberts J.A. on March 14, 2018, which were
    awarded to the successful party on the appeal. The parties agree that the costs
    of the motion before Roberts J.A. are $12,000, all inclusive.

[4]

In the costs decision, Nordheimer J.A. said, at para. 3:

Nevertheless, in my view, the respondent is still entitled to
    the costs of the original motion to strike the amended answer. She was
    successful on that motion and that success remains. This court's decision, on
    the merits appeal, simply provides the appellant with the opportunity to seek
    to amend his answer to properly plead his constitutional argument. His failure
    to do so in the first instance is what led to the motion to strike. The
    respondent should not bear the consequences of that failure.

[5]

The appeal of the merits was allowed only in part. We granted the
    appellant leave to amend the Amended Answer and Claim.

[6]

We make reference to paras. 13 and 14 of the merits decision:

The version of Mr. Hill's amended answer considered by the
    motion judge was poorly pleaded and lacking in detail. Neither Mr. Hill's
    pleading, nor the ramshackle way in which the constitutional claim was asserted
    and is being developed, does justice to the seriousness of the claim. The
    appellant provided this court with a draft "Amended Answer and Claim,"
    which would amend extensively the version considered by the motion judge.
    Nonetheless, as I will explain, it was premature to dispose of the
    constitutional claim at this early stage. It is difficult to evaluate Mr.
    Hill's claim under s. 35 of the
Constitution Act, 1982
at this early
    stage of the proceeding. It would be unwise to dismiss the claim summarily on
    such a scanty record.

In the end result, I would permit Mr. Hill to seek leave before
    another Superior Court judge to amend his answer to address the motion judge's
    criticisms of his pleading and the requirements of the jurisprudence. I would
    refuse to stay the interim support order and would permit Ms. Beaver to pursue
    any other remedy open to her short of a final order while the constitutional
    challenge is pending. This would properly balance the contending interests: Ms.
    Beaver's immediate interest in obtaining interim support for herself and B.,
    and Mr. Hill's interest in having the constitutional claim determined.

[7]

In addition, in the merits appeal we referred to the moving target that
    the appellant presented at para. 42:

The case has changed in two ways. First, as I have already
    observed, the thrust of Mr. Hill's argument to the motion judge was that the
    Superior Court had no jurisdiction over this family law dispute, based on s. 35
    of the
Constitution Act, 1982
. The Superior Court's undoubted
    jurisdiction is now conceded by Mr. Hill. Second, Mr. Hill insisted before the
    motion judge that he was asserting an essentially individual claim, although
    his pleading could arguably be characterized as a claim to
    "self-government". Mr. Hill's draft amended answer clarifies his
    claim somewhat.

[8]

As we see it, the appellant did not achieve his objective, which was to
    stay the family law claims while his constitutional claim proceeded. The
    appellant pursued an appeal on the motion judges findings of no justiciability
    and no standing in favour of an order by our court that would resolve those
    issues in his favour. However, the courts disposition leaves those issues for
    future determination.

[9]

On balance, we view the respondent as more successful than the appellant
    on the matters at issue in the appeal. While the constitutional question can
    proceed, the jurisdiction of the Superior Court of Justice was affirmed, a concession
    made by the appellant only at the hearing of the appeal. The respondent can
    continue with her family law claims. The appellant only escaped the abuse of
    process motion by paying up arrears of support before the appeal hearing.

[10]

In
    the merits decision, we noted that the appellant has taken a scorched earth
    approach to every step of this case but, as we noted, at para. 78: This case
    has developed into a procedural morass, to which both sides have contributed.
    We do not want to encourage this kind of conduct.

[11]

In
    the circumstances, we award costs to the respondent in the amount of $20,000,
    inclusive the costs of the stay motion heard by Roberts J.A., and of
    disbursements and HST.

P. Lauwers J.A.

K. van Rensburg J.A.

I.V.B. Nordheimer J.A.