WARNING

The
    President of the panel hearing this appeal directs that the following should be
    attached to the file:

An
    order restricting publication in this proceeding under ss. 486.4(1), (2), (3)
    or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

486.4     (1)
Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the complainant or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of
    the following offences;

(i)   an
    offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170,
    171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02,
    279.03, 346 or 347,

(ii)  an
    offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent
    assault on female), 156 (indecent assault on male) or 245 (common assault) or
    subsection 246(1) (assault with intent) of the
Criminal Code
, chapter
    C-34 of the Revised Statutes of Canada, 1970, as it read immediately before
    January 4, 1983, or

(iii) an
    offence under subsection 146(1) (sexual intercourse with a female under 14) or
    (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction
    of a female between 16 and 18), 153 (sexual intercourse with step-daughter),
    155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian
    procuring defilement) or 167 (householder permitting defilement) of the
Criminal
    Code
, chapter C-34 of the Revised Statutes of Canada, 1970, as it read
    immediately before January 1, 1988; or

(b)     two
    or more offences being dealt with in the same proceeding, at least one of which
    is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2)
In proceedings in respect of
    the offences referred to in paragraph (1)(a) or (b), the presiding judge or
    justice shall

(a)  at the first reasonable opportunity, inform any
    witness under the age of eighteen years and the complainant of the right to
    make an application for the order; and

(b)  on application made by the complainant, the prosecutor
    or any such witness, make the order.

(3)
In proceedings in respect of
    an offence under section 163.1, a judge or justice shall make an order
    directing that any information that could identify a witness who is under the
    age of eighteen years, or any person who is the subject of a representation,
    written material or a recording that constitutes child pornography within the
    meaning of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)
An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice when it is not the purpose of the
    disclosure to make the information known in the community. 2005, c. 32, s. 15;
    2005, c. 43, s. 8(3)(b).

486.6     (1)
Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)
For greater certainty, an
    order referred to in subsection (1) applies to prohibit, in relation to
    proceedings taken against any person who fails to comply with the order, the
    publication in any document or the broadcasting or transmission in any way of
    information that could identify a victim, witness or justice system participant
    whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. S.M., 2012
    ONCA 599

DATE: 20120911

DOCKET: C53311

Rosenberg, Blair and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

S.M.

Appellant

Dirk Derstine and Mariya Yakuskeva, for the appellant

Mabel Lai, for the respondent

Heard: September 7, 2012

On appeal from the decision of the Summary Conviction
    Appeal Court dated January 26, 2011 by Justice Robert D. Reilly of the Superior
    Court of Justice, dismissing the appeal from the conviction entered on December
    18, 2008 by Justice Gary F. Hearn of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

This is not a case to grant leave to appeal. It raises no legal issues
    of significance to the general administration of justice. To the contrary, it
    raises issues about sufficiency of reasons and credibility assessment that have
    been repeatedly addressed by appellate courts and the Supreme Court of Canada.

[2]

This is also not a case where the merits appear very strong. The trial
    judge gave extensive reasons for his findings. Contrary to the appellants
    submission these findings were not simply conclusory. The trial judge dealt
    with the inconsistencies in the evidence. He did not simply reject the
    appellants evidence because he found the complaint credible. He explained for
    example that the appellants evidence did not accord with common sense.

[3]

The summary conviction appeal court was entitled to find that the trial judges
    reasons were sufficient, dealt appropriately with the credibility issues and
    correctly applied the burden of proof.

[4]

Accordingly, leave to appeal is refused.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Singh, 2012
    ONCA 648

DATE: 20120928

DOCKET: C51870

Sharpe, Simmons and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Devinder Singh

Appellant

Paul Calarco, for the appellant

Christine Bartlett-Hughes, for the respondent

Heard and released orally: September 25, 2012

On appeal from the conviction entered on June 20, 2008
    and the sentence imposed on July 23, 2008 by Justice David Corbett of the Superior
    Court of Justice.

ENDORSEMENT

[1]

The appellant was convicted of second-degree murder and sentenced to
    life imprisonment without parole eligibility for 11 years and five months. He
    appeals his conviction for murder and asks this court to order a new trial or
    substitute a conviction for manslaughter and impose an appropriate sentence.

[2]

The deceased was the three-year-old niece of the appellants wife.
    Forensic evidence established that she died as a result of a ruptured aorta
    caused either by the hyperextension or hyperflexion of her back. Forensic
    evidence was led that indicated that significant force would be required to
    cause this injury. The appellant was the only adult present at the home when
    the child met her death. Shortly thereafter he made a statement to the police
    in which he denied harming the child and suggested that she met her death by
    drowning. The appellants statement to the police was strongly contradicted by
    the forensic evidence. It is accepted on appeal that in addition to the
    forensic evidence that demonstrated the appellants statement to be false, there
    was evidence, including the circumstances in which the statement was made, to
    demonstrate concoction.

Issues

[3]

The appellant raises two issues on his appeal from conviction:

1.  Did the trial judge err by failing to instruct the jury on the limited
    use the jury could make of the lies in the appellants statement to the police?

2.  Did the trial judge err by admitting evidence of a prior incident when
    the appellant had inflicted injuries upon the deceased?

Analysis

1.  Did the trial judge err by failing
    to instruct the jury on the limited use the jury could make of the lies in the
    appellants statement to the police?

[4]

The appellant submits that it was incumbent upon the trial judge to
    instruct the jury that it would be improper to infer from the fact that the
    appellant had lied in his statement to the police that he had the requisite
    intent for murder rather than manslaughter.

[5]

We are unable to accept that submission for the following reasons.

[6]

First, neither the trial Crown nor the trial judge suggested to the jury
    that the appellants statement had any bearing on the issue of intent. The
    trial Crown did urge the jury to find that the appellant had lied with respect
    to his involvement in the childs death but that submission was limited to the
    issue of whether or not the appellant had caused the childs death. The trial
    Crown did not ask the trial judge to instruct on post-offence conduct and the
    trial judge did not do so. While it is well-established that a limiting
    instruction should be given with respect to the use of evidence of post-offence
    conduct to infer the intent required for murder rather than manslaughter, we
    know of no authority that requires such an instruction as a matter of routine
    any time it is suggested that an accused person lied in an out-of-court
    statement.

[7]

Second, we note that the appellants argument is very difficult to
    reconcile with the decision of this court in
R. v. Czibulka
2011 ONCA
    82. In that case, the Crown relied on a false out-of-court statement to prove
    identity. This court rejected the submission that the trial judge was obliged
    to give a limiting instruction that the false statement could not be used to
    infer intention. See paras. 57-58.

[8]

Third, the trial judge provided the jury with a very careful  indeed a
    favourable  instruction as to the intention required for murder and as to the
    evidence the jury could use when deciding whether or not the Crown had proved
    an intent to commit murder. The trial judge made no reference to the
    appellants false statement nor, as indicated, did the trial Crown invite the
    jury to use the statement in that manner.

[9]

Fourth, trial counsel did not ask for a limiting instruction along the
    lines advanced on appeal.

[10]

In
    the circumstances, we see no perceptible risk that the jury could have misused
    the evidence that the appellant had lied in his statement to the police.

[11]

Accordingly
    we reject this ground of appeal.

2.  Did the trial
    judge err by admitting evidence of a prior incident during which the appellant
    inflicted injuries upon the deceased?

[12]

The
    Crown led evidence of prior acts of abuse directed by the appellant against the
    deceased. The most serious of these prior acts was evidence of an incident that
    allegedly occurred a month or two before the death in which the appellant had
    dragged the deceased by the heels down a set of stairs, thrown her against a
    wall and kicked her. The appellant urged the trial judge to rule that this
    evidence was unduly prejudicial and that it should therefore be excluded. The
    trial judge ruled that the evidence was admissible on the grounds that it was
    part of the narrative of events, that it was relevant to show motive and
    animus, and that it was relevant to the issue of intent. As there was forensic
    evidence to indicate that the deceased had suffered a back injury that made her
    more susceptible to the injury that caused her death, evidence that the
    appellant may have been aware that she had suffered a back injury was directly
    relevant. The trial judge gave a limiting instruction directing the jury that
    it was not entitled to use this evidence as indicating a general propensity on
    the part of the appellant.

[13]

We
    see no error on the part of the trial judge in admitting this evidence. In our
    view, it was directly relevant to the offence charged. This evidence had
    significant probative value as to the appellants animus and his willingness to
    inflict violence upon this unfortunate child. The jury was given an appropriate
    caution against misusing the evidence. In our view, any potential prejudice arising
    from this evidence was clearly outweighed by its probative value.

[14]

We
    reject the submission that because the Crown had other evidence of prior acts
    directed against the deceased it did not need this evidence. The Crown is
    entitled to lead all relevant evidence provided its probative value exceeds its
    prejudicial effect.

[15]

Accordingly, we reject this ground of appeal.

Sentence for manslaughter

[16]

As
    we reject the submission that the murder conviction should be set aside and a
    conviction for manslaughter substituted, it is not necessary for us to address
    the submissions made by the appellant as to the appropriate sentence for
    manslaughter.

[17]

Accordingly,
    the appeal is dismissed.

Robert J. Sharpe J.A.

Janet
    Simmons J.A.

Gloria
    J. Epstein J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v.
    Smith, 2012 ONCA 645

DATE: 20120926

DOCKET: C52709-C53855

Doherty, Hoy and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Randy Smith

Respondent

Greg Skerkowski, for the appellant

Nicole Rozier, for the respondent

Heard:  September 21, 2012

On appeal from the dismissal of the application for a s.
    752.1 assessment order entered on August 31, 2010 by Justice Kiteley of the Superior
    Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

We would allow the appeal.

[2]

We agree with and adopt the careful and cogent reasons of Cameron J.A.
    in
R. v. Goforth
(2005), 193 C.C.C. (3d) 354, leave to appeal to SCC
    refused, [2005] S.C.C.A. No. 456.  That courts analysis of the relevant
    definition in s. 752.1 was approved in
R. v. Lebar
(2010), 252 C.C.C.
    (3d) 411 albeit in the context of s. 742.1.

[3]

The trial judge found that all of the other criteria required for an
    assessment order were met.  As we are satisfied that on a proper
    interpretation, some of the respondents offences fall within the definition of
    serious personal injury offence, it follows that the trial judge should have
    ordered an assessment under s. 752.1(1).

[4]

We would allow the appeal, set aside the sentence imposed, order an
    assessment under s. 752.1(1), and the matter is remitted to the trial judge for
    such further proceedings as may be appropriate.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v.
    Verdon, 2012 ONCA 638

DATE: 20120925

DOCKET: C53087

OConnor A.C.J.O., Weiler and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jeffrey Wesley Verdon

Appellant

Michael Dineen, as duty counsel

Jeffrey Wesley Verdon, appearing in person

Rosella Cornaviera, for the respondent

Heard and released orally:  September 10, 2012

On appeal from the conviction entered on June 23, 2010 by
    Justice H. Perkins-McVey of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellants main complaint about the three convictions under appeal
    is that the trial judge erred in making her findings of credibility.  As the
    trial judge pointed out, there were problems with the complainants
    credibility.  Indeed, the trial judge dismissed a number of charges because of
    those problems.  That said, it was open to the trial judge to accept some of
    the complainants evidence.  The appellants arguments would have us in effect
    retry the charges on which she convicted.  That is not our function.  In our
    view, the trial judge carefully considered the relevant evidence and made
    findings open to her on the basis of that evidence.

[2]

We are aware of the argument that some parts of the evidence on the
    first day of this four-day trial were not adequately recorded and transcribed.
    However, we are not satisfied that the missing portions affected any of the
    appellants grounds of appeal.  We see no unfairness in the trial judges
    reliance on the fact that the 911 call was made on September 5, 2009.

[3]

Finally, as to the assault by gesture charge, we are of the view that it
    was open to the trial judge on the basis of the appellants and Mr. Kempsters
    evidence to conclude that the offence had been made out.

[4]

In the result, the appeal is dismissed.

D. OConnor A.C.J.O.

K.M. Weiler J.A.

Alexandra Hoy J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Sandy v. Lovering, 2012
    ONCA 634

DATE: 20120924

DOCKET: C53340

Winkler C.J.O., LaForme J.A. and Cunningham
    A.C.J. (
ad hoc
)

BETWEEN

Andrea Oslyn Sandy

Plaintiff (Appellant)

and

Ursula Lovering and ARI Financial Services Inc.

Defendants (Respondents)

Osborne G. Barnwell, for the appellant

Gail Willoughby, for the respondents

Heard and released orally: September 13, 2012

On appeal from the order of Justice Katherine B. Corrick
    of the Superior Court of Justice, dated January 28, 2011.

ENDORSEMENT

[1]

The first issue raised by the appellant is that the trial judge erred by
    commenting or suggesting that the expected evidence from the Town official Mr.
    Caderilli regarding the timing of the lights was expert opinion. We disagree.
    Whether or not it was expert opinion, is of no consequence for the purposes of
    this appeal. It is clear from the record that the trial judge repeatedly
    informed the appellant that she was obliged to call a witness, and that she was
    not and had not ruled on the admissibility of the evidence. The fact is that
    the appellant failed to call any witnesses in respect of the video or the
    traffic lights. Accordingly, this ground of appeal fails.

[2]

On the second issue, we find no error in the procedure followed by
    Corrick J. in dealing with the issue of the initial verdict. Without question,
    based upon the evidence, the answer to question number two, that Ms. Lovering
    may have had an opportunity to avoid colliding with Ms. Sandys car, does not
    meet the legal definition of negligence. Accordingly, it was proper for the
    trial judge to recall and recharge the jury. We find no error or misdirection
    in her recharge. She drew the jurys attention to the relevant evidence and
    applicable legal principles. This ground of appeal fails as well.

[3]

Accordingly, the appeal is dismissed. Costs to the respondents fixed at
    $10,000, inclusive of disbursements and applicable taxes.

W.K.
    Winkler C.J.O.

H.S. LaForme J.A.

J.D.
    Cunningham A.C.J. S.C.J. (
ad hoc
)


COURT OF APPEAL FOR ONTARIO

CITATION:
Schembri v. Way, 2012
    ONCA 620

DATE: 20120920

DOCKET: C54258

Feldman and Hoy JJ.A. and Spence J. (
ad hoc
)

BETWEEN

Gordon Schembri, Schembri Financial Limited, Leaf
    Construction Management Inc. and 1784652 Ontario Inc.

Plaintiffs/Appellants

and

Al Way, Jamesway Construction Corporation,
    Kingsley Financial Inc., Triumph Financial Holdings Inc., 1725030 Ontario Inc.,
    Premier Project Consultants Ltd., National Rent-All Inc., Terra-Tec Excavating,
    Oxford & First St. Inc., Simcoe & Eastwood Avenue Inc. and 359 King
    Ontario Inc.

Defendants/Respondents

James M. Wortzman, for the appellants

P.A. Neena Gupta, for the respondents

Gary L. Petker, for Faye Patterson

Ian M. Hull, for the trustees of the Way Family Trust

Heard: February 13, 2012

On appeal from the order of Justice James R.H. Turnbull of
    the Superior Court of Justice, dated June 29, 2011, with reasons reported at
    2011 ONSC 8021 and 2011 ONSC 4098.

Feldman
    J.A.:

[1]

This appeal arises from a pleadings motion. The motion judge allowed a
    number of amendments to the statement of claim but refused to add two parties
    the Way Family Trust and Faye Patterson - or to add a new remedy for the
    oppression claim. The plaintiffs appeal those refusals.

FACTS

[2]

1784652 Ontario Inc. (Schembrico) and 1725030 Ontario Inc. (Wayco)
    entered into a joint venture agreement for the demolition and redevelopment of
    a property at 345 King St. N. in Waterloo, Ontario in April 2007. They were to
    share the profits equally.

[3]

The plaintiffs allege that the defendants improperly boosted the costs
    of the project by retaining a number of related companies to do work at
    inflated prices, thereby reducing the amount of the shared profit. It is also
    alleged that the defendants diverted Schembricos portion of the profits into
    other related entities. All of these actions, say the plaintiffs, fraudulently
    deprived Schembrico of its profits under the joint venture agreement.

[4]

The anticipated profit from the sale of the redeveloped property was $10
    million from which Schembrico anticipated receiving $5 million. When it
    received only approximately $1.4 million, Schembrico demanded an accounting but
    did not receive it.

[5]

Al Way, Kingsley Financial Inc. (of which Mr. Way is an officer and
    director), Triumph Financial Holdings Inc. (Triumph), Gordon Schembri and
    Schembri Financial Ltd. (of which Mr. Schembri is an officer and director)
    entered into a shareholder agreement in April 2008 regarding the manner in
    which the affairs of Triumph were to be conducted.

[6]

Schembri Financial holds 45 per cent of the shares of Triumph, while
    Kinglsey Financial owns 55 per cent. Triumph, in turn, owns 100 per cent of the
    shares of companies (the Triumph Subsidiaries) that own lands, in London,
    Oshawa and Waterloo (the shareholder lands).

[7]

The plaintiffs allege that Wayco improperly used Schembricos profits
    from the joint venture to finance the redevelopment of the shareholder lands.

[8]

After commencing the action, the plaintiffs brought a motion before
    Roberts J. for the appointment of a receiver and manager of the Triumph
    Subsidiaries that were developing the shareholder lands and for the delivery of
    documentation regarding the joint venture. Affidavits and cross-examinations on
    the affidavits produced a significant amount of evidence for use on that
    motion.

[9]

From both the cross-examinations, as well as from other disclosures in
    the context of the motion, the plaintiffs learned that $6 million of the
    profits from the joint venture had been paid to a Way corporation, Premier
    Project Consultants Ltd. (PPC).

[10]

It
    was also revealed that $855,000 of the $6 million had been directed to other
    Way corporations: 158170 Ontario Ltd., 1604909 Ontario Inc., The Shores Ltd.,
    Jameshill Developments Ltd., The Spruce Street Lofts Inc., and Maple Hill Creek
    Apartments Inc. (the Wayco beneficiaries).

[11]

Roberts
    J. appointed a receiver and manager of the Triumph Subsidiaries and ordered the
    production of all financial documents relating to the joint venture. She did so
    after reviewing an extensive evidentiary record and on the basis of the
    defendants acknowledgement that the plaintiffs had presented a strong
prima
    facie
case against Mr. Way and the Way companies of serious financial and
    accounting irregularities and improprieties. She noted that the defendants had
    not disputed the evidence presented by the plaintiffs: (2010), 76 B.L.R. (4th)
    147, at para. 6.

[12]

Based
    on this undisputed evidence, Roberts J. made a number of significant findings
    of wrongdoing by Mr. Way and the companies he controlled. For instance, she
    found that Mr. Way had shuffled money around to his corporations, that he had
    not complied fully with court-ordered production and he was willing to
    manipulate figures and to ignore his accountants advice.

[13]

Following
    the motion, the plaintiffs sought to add a number of parties that they allege
    improperly received monies from the joint venture, including the Wayco
    beneficiaries, a trust controlled by Mr. Way (the Way Family Trust or
    Trust), as well as Ms. Patterson who, as a director, officer and employee of
    a number of Way companies, is alleged to have participated with Mr. Way in
    shuffling the joint venture money. The plaintiffs also sought to add a claim
    for a redistribution of the shares of Triumph as part of the oppression remedy.

[14]

The
    motion judge granted the request to add the Wayco beneficiaries, but refused to
    add the Way Family Trust, Ms. Patterson, or the new ground of relief under the
    oppression remedy as set in para. 2(k) of the proposed amended statement of
    claim.

ISSUES

[15]

Did
    the motion judge err in law by refusing to add the Way Family Trust or Ms.
    Patterson as parties, or by refusing to allow the statement of claim to be
    amended by adding a claim for the readjustment of the shares of Triumph as an
    oppression remedy?

ANALYSIS

(1)

The proposed claim
    against Faye Patterson

[16]

In
    the proposed amendments that add the claims against Ms. Patterson, there are no
    new paragraphs where specific new allegations are made against her. Instead,
    her name is added to existing paragraphs where she is alleged to have
    participated in certain of the activities of Mr. Way and some of his companies
    either as an employee or as a director and officer. She is the president and a
    director of PPC and the vice president of Jamesway.

[17]

The
    specific causes of action identified by the motion judge that were proposed to
    be added against her are conspiracy, inducing breach of contract and breach of
    fiduciary duty based on the following broad allegations: 1) having joint
    control with Mr. Way of funds that belonged to the joint venture and
    participating in the diversion of those funds to other Way entities and in the
    fraudulent inflation of the costs of the joint venture; 2) together with Mr.
    Way, improperly using Schembricos share of the profits from the joint venture
    on other projects involving the shareholder lands; and 3) conspiracy to injure
    the plaintiffs by depriving them of money that they are due and owing by, for
    example, diverting Schembricos profits to PPC for baseless expenses.

[18]

The
    motion judge found that the proposed amendments did not disclose a reasonable
    cause of action against Ms. Patterson in her personal capacity. He viewed the
    allegations as mere claims against the corporations of which Ms. Patterson was
    a directing mind, as in
ScotiaMcLeod Inc. v. Peoples Jewellers Ltd.
(1995),
    26 O.R. (3d) 481 where Finlayson J.A. stated, at p. 491:

Considering that a corporation is an inanimate piece of legal
    machinery incapable of thought or action, the court can only determine its
    legal liability by assessing the conduct of those who caused the company to act
    in the way that it did. This does not mean, however, that if the actions of the
    directing minds are found wanting, that personal liability will flow through
    the corporation to those who caused it to act as it did. To hold the directors
    of Peoples personally liable, there must be some activity on their part that
    takes them out of the role of directing minds of the corporation. In this case,
    there are no such allegations.

[19]

The
    motion judge also found that the claims against Ms. Patterson were bald
    allegations with no factual basis and that the proposed pleading did not
    specify why she was being sued as an individual separately from the
    corporations. He concluded by saying that, if evidence is disclosed in the
    examinations for discovery and production of documents that would found the
    claims he had denied, then the plaintiffs could renew their motion to add Ms.
    Patterson.

[20]

The
    motion judge then assessed the viability of each of the three causes of action
    proposed against her. Dealing first with the claim against Ms. Patterson for
    conspiracy to injure, the motion judge found that all of the components of that
    cause of action were properly pleaded against her in para. 98 of the proposed
    amended statement of claim. In that paragraph, it is asserted that some of the
    defendants, including Ms. Patterson, acted in concert to deprive the plaintiffs
    of their profits. The motion judge concluded that [i]f such is proven, it
    naturally follows that if the conduct is found to be unlawful, and such
    deprivation is proved, the defendants would have known that injury to the
    plaintiffs would be the natural result.

[21]

Nevertheless,
    although the conspiracy claim was sufficiently pleaded and particularized, the
    motion judge would not allow that claim to be added against Ms. Patterson
    because of the ruling he had already made that there was an insufficient
    factual basis to ground any of the claims against her in her personal capacity.

[22]

The
    second claim was for breach of fiduciary duty. The motion judge found that the
    proposed amended claim did not plead facts that would give rise to a fiduciary
    duty between Ms. Patterson, as an employee of Mr. Way or as a director and
    officer of PPC and Jamesway, and the plaintiffs.

[23]

The
    third claim was for inducing breach of contract, the contract being the joint
    venture. After setting out the elements of the tort, the motion judge concluded
    that the pleading was adequate to sustain the claim against Ms. Patterson for
    inducing breach of contract, and that [w]hile it lacked some particulars, it
    was sufficient to allow her to plead to it if that had been necessary.
    However, because he had found that there was an insufficient factual basis to
    allow Ms. Patterson to be sued in her personal capacity for any cause of
    action, the motion to add the claim against her for inducing breach of contract
    was also dismissed.

[24]

While
    the motion judge and plaintiffs do not specify which sub rule they are relying
    on, in my view,  Rule 5.03(4) of the
Rules of Civil Procedure
, R.R.O.
    1990, Reg. 194, is the most applicable in the circumstances, together with r.
    26.01:

26.01   On motion at any stage of an action the court shall
    grant leave to amend a pleading on such terms as are just, unless prejudice
    would result that could not be compensated for by costs or an adjournment.

5.03(4)  The court may order that any person who ought to have
    been joined as a party or whose presence as a party is necessary to enable the
    court to adjudicate effectively and completely on the issues in the proceeding
    shall be added as a party.

[25]

The
    motion judge directed himself in his introduction to the reasons that [i]n
    accordance with the ruling of the Ontario Court of Appeal  amendments to add
    parties should be presumptively approved, unless there is abuse of the court process
    or non-compensable prejudice.

[26]

There
    is neither an allegation of prejudice nor a limitation period issue here, and
    the action is at an early stage. The plaintiffs could commence a new action
    against the proposed defendants and then seek to join it with the existing
    action. The procedure of adding parties to the existing action circumvents the
    costly and time-consuming process involved in that procedure.

[27]

Because
    this is a motion to amend pleadings, the allegations in the pleading are taken
    to be true and provable. The only issue therefore, is whether the allegations
    as pleaded, plead all of the necessary components of an identifiable cause of
    action.

[28]

In
    my view, having found that the causes of action for conspiracy to injure and
    inducing breach of contract were sufficiently pleaded against Ms. Patterson,
    the motion judge erred by not allowing her to be joined as a defendant in
    respect of those two causes of action.

[29]

The
    motion judge referred to the following statement by Finlayson J.A. in
ScotiaMcLeod
,
    affirmed by this court in
Normart Management Ltd. v. West Hill
    Redevelopment Co. Ltd.
(1998), 37 O.R. (3d) 97, at p. 102:

It is well established that the directing minds of corporations
    cannot be held civilly liable for the actions of the corporations they control
    and direct
unless there is some conduct on the part of those directing
    minds that is either tortious in itself or exhibits a separate identity or
    interest from that of the corporations such as to make the acts or conduct
    complained of those of the directing minds.
[Emphasis added.]

[30]

The
    fact that corporate actors can be separately liable if they have engaged in
    tortious conduct, even in the course of their duty, was also confirmed by this
    court in
ADGA Systems International Ltd. v. Valcom Ltd.
(1999), 43
    O.R. (3d) 101 (C.A.), at p. 112-113.

[31]

At
    para. 98, the motion judge made the following statement:

In the case at bar, the factual foundation for the tort of
    conspiracy, the claim for breach of fiduciary duty and inducing breach of
    contract, as pleaded, is identical to that which underlies the allegations for
    breach of the [joint venture agreement] and the Shareholders Agreements. The
    damages alleged in all cases are the same. The allegations made against Ms.
    Patterson are bald allegations with no factual basis to found a claim against
    her in law.

[32]

With
    respect to the motion judge, in this passage he has not acknowledged that in
    this case there is a clear pleading of fraudulent conduct by Ms. Patterson,
    which is detailed to the same extent as the claims against other defendants.
    This brings the case squarely within the type of conduct where a claim against
    the directing mind is not barred.

[33]

The
    motion judge also erred in suggesting that there must be evidence to sustain
    such a claim. It may be that because there was such an abundance of evidence
    already developed in the record in this matter, the motion judge expected sworn
    or documentary evidence to support the proposed new pleadings. However, that is
    not a requirement on a motion to add a party (subject to other considerations
    such as prejudice or abuse of process). As Moldaver J.A. stated in
Andersen
    Consulting v. Canada

(Attorney General)
(2001), [2002] 150 O.A.C.
    177 at para. 34: [T]he law is clear that unless the facts alleged are based on
    assumptive or speculative conclusions that are incapable of proof, they must be
    accepted as proven and the court should not look beyond the pleadings to
    determine whether the action can proceed.

[34]

I
    would therefore allow the appeal with respect to the addition of Ms. Patterson
    as a defendant on the two issues of conspiracy to injure and inducing breach of
    contract. The plaintiffs are not pursuing the claim for breach of fiduciary
    duty.

(2)

The proposed claim
    against the Way Family Trust

[35]

The
    plaintiffs sought to add the Way Family Trust as a defendant that they allege
    knowingly received from Mr. Way and Way entities money that ought to have gone
    to the plaintiffs. The proposed amendments add the Trust into various existing
    paragraphs of the statement of claim as one of a list of parties that either
    received the plaintiffs funds or participated in the plan to divert those
    funds. However, there are no particulars of any of these allegations.

[36]

The
    motion judge rejected a number of alleged defects with the pleading and would
    have been ready to approve the addition of the Way Family Trust had there been
    any evidence to support the allegations against it.

[37]

He
    rejected the submission that the pleading lacked particularity. He found that
    it was sufficient for a claim for fraud and breach of trust to allege knowing
    receipt of monies that the Trust knew or should have known were impressed with
    a trust for the plaintiffs.

[38]

He
    accepted the plaintiffs explanation that the reason the Trust was not named as
    an original party to the action was that they only discovered the payments out
    of some of the joint venture profit proceeds to Way companies after the
    litigation was commenced.

[39]

He
    also rejected the submission made by counsel for the trustees that the
    plaintiffs only sought to add the Way Family Trust for strategic reasons,
    including to obtain discovery from it and to apply pressure on the other
    defendants to settle. He reasoned that Mr. Way is one of the trustees and would
    be examined in his personal capacity in any event.

[40]

Notwithstanding
    that he rejected those arguments, the motion judge refused the amendment
    because, unlike the Wayco beneficiaries that were added, there was no evidence
    in the record already developed and no evidence referred to by Roberts J. that
    the Way Family Trust had received any of the diverted funds. Also of
    significance for the motion judge was the fact that the plaintiffs had
    commissioned a report from KPMG but had not produced that report and had not
    suggested, based on that report, that the accountants had found that the Way
    Family Trust had received any of the disputed funds.

[41]

The
    motion judge relied on the decision of C. Campbell J. in
Hilltop Group Ltd.
    v. Katana
[2001] O.J. No. 1564 (S.C.), for the proposition that it is
    appropriate when considering a motion to add parties for the court to consider
    evidence advanced in support of the claim in order to assess its tenability.
    However, the facts in that case make it inapplicable to this situation. In
Hilltop
,
    the plaintiffs by counterclaim sought to name a new defendant by counterclaim
    two weeks before the trial. The basis of the claim was that they had only
    recently learned that the proposed new defendant was a 50 per cent shareholder
    in one of the companies operated by her husband, who was also a defendant, and
    that she may have played a role in his impugned activities.

[42]

The
    rule being relied on was rule 5.04(2), which allows a party to be added or
    deleted at any stage subject to non-compensable prejudice. The focus of the
    judges analysis in that case was the lateness of the request, the effect on
    the upcoming trial and the issue of prejudice, and in that context, the
    tenability of the proposed new claim. For that purpose, because the proposed
    pleading was so bald, the court looked at the transcripts that were available
    to see if there was any suggestion of the involvement of the proposed new party
    and there was not. The court therefore found, among other things, that the
    pleading did not disclose a tenable claim. However, that was true without
    looking for evidence. Nonetheless, the judge was willing to apply any evidence
    he could find to support the claim and fill in the pleading if there was any
    basis for doing so, but there was none.

[43]

In
    my view, Moldaver J.A.s statement in
Andersen
, quoted above, is again
    applicable. Where a party wishes to amend a claim or add a new party within the
    limitation period, the facts pleaded are taken to be true and provable (subject
    to unprovable assumptive or speculative conclusions) and the court is to assess
    the tenability of the claim on that basis.

[44]

The
    trial judge also found that to join the Way Family Trust would unduly
    complicate the action and cause significant prejudice to the Trust in having to
    produce documents and incur accounting and legal expenses. However, this is not
    the type of prejudice envisioned by the rule. Unfortunately, everyone involved
    in litigation must endure the time and expense involved in its procedures. In
    any event, the plaintiffs were not seeking to add a party late in the
    litigation but at a fairly early stage before examinations and production.

[45]

Once
    the motion judge determined that the proposed pleadings adequately disclosed
    and pled the asserted causes of action, the fact that the plaintiffs did not
    produce evidence to support the allegations was not a reason to refuse the
    amendment.

(3)

The claim for reapportionment of the share percentage holdings in Triumph

[46]

The
    plaintiffs sought to amend para. 2(k) of the statement of claim from claiming a
    50/50 interest in Triumph to reversing the shareholdings so that Schembrico
    would hold 55 per cent and Wayco 45 per cent.  The motion judge held that there
    was no factual basis for this claim as pleaded. At the request of the
    defendants, the entire paragraph was struck from the pleading with leave to
    amend.

[47]

The
    plaintiffs rely on s. 248(3) of Ontarios
Business Corporations Act,
R.S.O. 1990, c. B 16 (OBCA), which sets out the available remedies for
    oppression. Section 248(3)(d) includes as a potential remedy an order
    directing an issue or exchange of securities. The defendants submit that the
    case law only allows this type of remedy to be ordered where the circumstances
    call for it and that there is no suggestion that a readjustment of the share
    split in the joint venture corporation was ever contemplated as a remedy for
    any breach.

[48]

They
    say that, at a minimum, the plaintiffs would have to plead that Schembri
    Financial had a reasonable expectation that it might secure a majority position
    in the event of a dispute with Kingsley Financial, that a re-apportionment of
    shares would address the oppression and that there is no less intrusive way to
    achieve redress.

[49]

In
    my view, the pleaded amendment should be allowed under Rule 26. The facts
    pleaded that are alleged to constitute the oppression, if proved, will give the
    court the authority to order the appropriate oppression remedy provided under
    the OBCA. It will be for the trial judge to determine what is appropriate based
    on the evidence and the submissions at the time. There is no merit in
    attempting to fetter the discretion of the trial judge at the pleading stage,
    subject to any particular circumstances not present in this case.

ADDITIONAL ISSUE: COSTS

[50]

In
    their supplementary notice of appeal, the plaintiffs objected to part of the
    costs order made by the trial judge in the cause.  There was no reference to
    this ground of appeal in their factum. Some mention was made of the issue in
    oral argument. I would not grant leave to appeal on this issue, which is a
    matter of discretion for the motion judge.

RESULT

[51]

I
    would allow the appeal, set aside the order of the motion judge and allow the
    motions to amend the pleading as follows: 1) by adding Ms. Patterson in respect
    of the claims for conspiracy and inducing breach of contract; 2) by adding the
    Way Family Trust as pleaded; and 3) by allowing the proposed amendment to para.
    2(k) of the statement of claim.

[52]

Following
    the hearing, the counsel advised that they had come to an agreement regarding
    the costs of the appeal and below. As the plaintiffs have been successful, they
    will have the costs of the appeal fixed at $21,395.42 for fees, $4,728.83 for
    disbursements, plus HST, for which the defendants will be jointly and severally
    liable. They shall have the costs of the motion from the Way Family Trust in
    the amount of $12,000 for fees, $382.32 for disbursements, plus HST, and from Ms. Patterson in the amount of $14,000
    for fees, $382.32 for disbursements, plus HST.

K.
    Feldman J.A.

I
    agree Alexandra Hoy J.A.

I
    agree Spence J. (
ad hoc
)

Released: K.F. September 20, 2012


COURT OF APPEAL FOR ONTARIO

CITATION:

Skipper Online Services
    (SOS) Inc. v. 2030564 Ontario Inc.,
2012 ONCA 606

DATE: 20120914

DOCKET: C55415

Winkler C.J.O., LaForme J.A. and Cunningham J. (
ad
    hoc
)

BETWEEN

Skipper
    Online Services (SOS) Inc.

d.b.a.
    Boaterexam.com

Applicant

(Respondent in appeal)

and

2030564
    Ontario Inc.

d.b.a.
    Boatsmart Canada

Respondent

(Appellant in appeal)

APPLICATION UNDER Rule
    14.05(3)(d) and (g) of the
Rules of Civil Procedure

Donald M. Cameron and Mark Robbins for the appellant

Scott Miller and Jon Roch, for the respondent

Heard and released orally: September 10, 2012

On appeal from the judgment of Justice Julianne A.
    Parfett of the Superior Court of Justice, dated March 22, 2012.

ENDORSEMENT

[1]

We do not agree that the application judge misinterpreted the settlement
    agreement.  Specifically, the wording in section 2(a) of the agreement is not
    ambiguous.  The application judges conclusions in paragraphs 18 and 19 of her
    reasons are compelling and in our view correct.

[2]

The application judges interpretation of the agreement is in accord
    with sound commercial principles as applied to the particular businesses of the
    parties, namely, boater accreditation provided primarily on the internet.
    Considered in this context, her decision reflects an appreciation for the
    importance of using phrases to drive traffic to internet websites.  We see no
    reason to interfere with her decision.

[3]

The appeal is dismissed.  As agreed to by the parties, costs are to the
    respondent fixed in the amount of $20,000 inclusive of disbursements and
    applicable taxes.

W. Winkler C.J.O.

H.S.
    LaForme J.A.

J.D. Cunningham A.C.J.
    S.C.J.


COURT OF APPEAL FOR ONTARIO

CITATION:
Technicore Underground
    Inc. v. Toronto (City), 2012 ONCA 597

DATE: 20120912

DOCKET: C54801

Gillese, Juriansz and Epstein JJ.A.

BETWEEN

Technicore Underground Inc.

Plaintiff

and

City of Toronto

Defendant (Respondent)

and

Clearway Construction Inc.

Third Party (Appellant)

Christos Papadopoulos, for the appellant

Darrel A. Smith, for the respondent

Heard: June 20, 2012

On appeal from the judgment of Justice Beth Allen of the
    Superior Court of Justice, dated December 5, 2011.

Gillese
    J.A.:

[1]

The City of Toronto (the City) successfully disposed of the bulk of a
    multimillion dollar construction claim against it, by means of a partial
    summary judgment motion.  The claimant says that the matter requires a trial
    and should not have been decided by way of summary judgment.

[2]

Is the claimant correct?  In my view, it is not.  As I will explain,
    this appeal should be dismissed.

OVERVIEW

[3]

Clearway Construction Inc. (Clearway) entered into a construction
    contract with the City in which it agreed to construct a water main 5.88
    kilometres in length (the Contract).  The water main ran under a number of
    roads in Toronto, including Leslie Street (the Leslie Street Project).

[4]

Clearway subcontracted with Technicore Underground Inc. (Technicore)
    to do the underground tunnelling, which it did through a tunnel boring machine.

[5]

Technicore excavated the tunnel under Leslie Street.  During the evening
    of August 2 - 3, 2006, there was a flood in that tunnel.  It is the flood that
    led to these legal proceedings.

[6]

As a result of the flood, Technicores tunnel boring machine was trapped
    under Leslie Street.  After rescuing and refurbishing the boring machine,
    Technicore completed the tunnelling by December 22, 2006.

[7]

The Contract work affected by the flood was completed at the end of
    December 2006.

[8]

By letter dated February 9, 2007, Technicore made a claim against
    Clearway for approximately $800,000 plus G.S.T. for damages arising from the
    flood (the Technicore claim).

[9]

On March 6, 2007, Clearway submitted a claim to the City for additional
    payment under the Contract to cover costs incurred as a result of the flood
    (the March 2007 Claim).  In the March 2007 Claim, Clearway sought
    approximately $1,270,000, comprised of indemnity for the Technicore claim plus
    a claim for approximately $400,000 of its own costs incurred as a result of the
    flood.  In the March 2007 Claim, Clearway noted the possibility that some
    costs have not yet been identified and reserve[d] the right to claim payment
    for work(s) not specifically mentioned herein.

[10]

By
    letter dated April 4, 2007, the City denied the March 2007 Claim.

[11]

Technicore
    started the main action in these proceedings on July 30, 2008.  It claimed
    solely against the City for damages suffered as a result of the flood.

[12]

The
    City defended and started a third party claim against Clearway for contribution
    and indemnity, and additional damages.

[13]

Clearway
    defended the Citys third party claim and counterclaimed against the City.  In
    its initial defence and counterclaim, served on the City in March 2010,
    Clearway sought indemnity for the Technicore claim, plus damages of $1,000,000.

[14]

In
    August of 2010, Clearway sent the City a claim in which it repeated the amounts
    sought in the March 2007 Claim and added new claims in excess of $3,000,000
    (the August 2010 Claim).

[15]

In
    an amended defence and counterclaim dated June 23, 2011 (the Counterclaim),
    Clearway continued to seek indemnity for the Technicore claim but increased its
    damages claim to just over $3,400,000.

[16]

In
    a companion construction lien action, Technicore sues Clearway for damages
    arising out of the Leslie Street flood and for certain other claims.  The lien
    action has been ordered to be tried together with this proceeding.

[17]

The
    City brought a motion for partial summary judgment, seeking a dismissal of
    those parts of the Counterclaim that were in excess of the March 2007 Claim.
    The focus of the motion was paragraph GC 3.14.03.03 of the General Conditions
    that were included as part of the Contract (the Notice Provision).  The
    Notice Provision sets out specific requirements for the filing of claims under
    the Contract.  It reads as follows:

The Contractor shall submit detailed claims as soon as
    reasonably possible and in any event no later than 30 Days after completion of
    the work affected by the situation.  The detailed claim shall:

a)

identify the item or
    items in respect of which the claim arises;

b)

state the grounds,
    contractual or otherwise, upon which the claim is made; and

c)

include the Records
    maintained by the Contractor supporting such claim.

[18]

The
    full text of GC 3.14 can be found as appendix A to these reasons.

[19]

The
    motion judge concluded that Clearway was limited to the March 2007 Claim.  By
    judgment dated December 5, 2011, she granted partial summary judgment (the
    Judgment).

[20]

Clearway
    appeals.  It contends that the portions of its Counterclaim that the Judgment
    has the effect of dismissing raise genuine issues requiring a trial.  It asks
    that the Judgment be set aside.

[21]

In
    my view, the motion judge correctly decided this matter.  I would dismiss the
    appeal.

A PRELIMINARY MATTER

[22]

The
    focus of the motion below was on the timing of the August 2010 Claim, as it had
    been made years after the time required by the Notice Provision.  However, the
    motion judge struck two other parts of the August 2010 Claim for reasons other
    than the timing of its delivery.

[23]

First,
    she struck those parts of the August 2010 Claim that pre-dated, and were
    unrelated to, the Leslie Street Project, noting that they failed to raise a
    genuine issue requiring a trial in respect of the Citys liability.

[24]

Second,
    she struck the parts in which Clearway sought reimbursement for the claims that
    Technicore made against it (Clearway) in the related lien action that had not
    been made against the City.  These other Technicore claims against Clearway
    were unrelated to the flood or the work under Leslie Street (the non-Leslie
    Street Claims).

[25]

Before
    the motion judge, the parties agreed that the non-Leslie Street Claims were not
    properly asserted against the City and should be dismissed, but they disagreed
    on the procedure that should be followed for their dismissal.  The motion judge
    was satisfied that partial summary judgment was an appropriate method by which
    to dispose of the non-Leslie Street claims.

[26]

I
    do not understand Clearways appeal to extend to these two other parts of the
    August 2010 Claim, even though Clearway purports to seek to have the entire
    Judgment set aside.  However, even if Clearway did intend to appeal the
    dismissal of these parts of the Counterclaim, it is readily apparent that the
    appeal fails in respect of these items.  For the reasons given by the motion judge,
    they raise no genuine issue requiring a trial in respect of the City.

THE ISSUES

[27]

Clearway
    submits that the motion judge erred in:

1.       her interpretation of the Notice Provision;

2.      granting
    the motion despite the absence of evidence of prejudice to the City;

3.      allowing
    the City to rely on the Notice Provision when it had failed to comply with GC
    3.14.04;

4.      failing
    to recognize and find that items 7 and 8 in Part 1 of the August 2010 Claim are
    the same as items 3 and 6 of the March 2007 Claim; and

5.      allowing
    the City to rely on the Notice Provision when it has raised no complaint in
    respect of the date of delivery of the March 2007 Claim.

ANALYSIS

Issue 1:
Interpreting the Notice Provision

[28]

Based
    on the jurisprudence, the motion judge concluded that the Notice Provision
    operated as a condition precedent that served to bar the August 2010 Claim
    because Clearway failed to deliver it (the August 2010 Claim) before the expiry
    of the time limit.  Clearway submits that the motion judge erred in her
    interpretation of the Notice Provision.  It argues that had the motion judge
    reviewed GC 3.14 in its entirety, she would have seen that the Notice Provision
    in GC 3.14.03 simply sets out a procedure to identify, and provide details of,
    any claims that are to be subsequently negotiated and possibly mediated
    pursuant to GC 3.14.04 and 3.14.05.  As none of these provisions contains a
    failing which clause, Clearway submits that the Contract does not contain the
    clear language necessary to deprive it of the right to proceed with its full
    counterclaim against the City.

[29]

I
    do not accept this submission.  The Notice Provision sets out a mandatory procedure
    for the filing of claims under the Contract, including the requirement that
    detailed claims are to be submitted no later than 30 days after completion of
    the work affected by the situation.
[1]
The Notice Provision need not include a failing which clause in order for it to
    bar the August 2010 Claim.  This conclusion flows inexorably from the decision
    of the Supreme Court of Canada in
Corpex (1977) Inc. v. Canada
, [1982]
    2 S.C.R. 643.

[30]

In
Corpex
, the plaintiff contractor
    had a contract with the federal government to build a dam across a river.  The
    first stage of the contract required the river to be dewatered.  The contractor
    based his estimate of the pumping costs on incorrect information about the
    nature of the soil contained in the plans and specifications.  After a
    fortnight of pumping, it became obvious that the pumping equipment was not
    equal to the task.  Additional pumps had to be installed.  The contractor did
    not give written notice to the government that it would claim for the
    additional costs occasioned by the mistake as to the soil conditions.

[31]

Notice
    of the claim was required by clause 12 of the General Conditions to the
    contract.  Clause 12 provided:

12.     (1)
No
    payment shall be made
by Her Majesty to the Contractor
in addition to the payment expressly
    promised by the contract on account of any extra expense, loss or damage
    incurred or sustained by the contractor for any reason
,
    including a misunderstanding on the part of the Contractor as to any fact,
    whether or not such misunderstanding is attributable directly or indirectly to
    Her Majesty or any of Her Majesty's agents or servants (whether or not any
    negligence or fraud on the part of Her Majesty's agents or servants is involved)
    unless, in the opinion of the Engineer, the extra expense, loss or damage is
    directly attributable to

(a)     a substantial difference between information relating
    to soil conditions at the work site, or a reasonable assumption of fact based
    thereon, in the plans and specifications or other documents or material
    communicated by Her Majesty to the Contractor for his use in preparing his bid
    and the actual soil conditions encountered at the work site by the Contractor
    when performing the work,

...

in which case,
if
    the Contractor has given the Engineer written notice of his claim before the
    expiry of thirty days after encountering the soil conditions giving rise to the
    claim [...] Her Majesty shall pay
to the Contractor in respect
    of the additional expense, loss or damage incurred or sustained by reason of
    that difference [...] an amount equal to the cost, calculated in accordance
    with clauses 44 to 47 of the General Conditions, of the additional plant,
    labour and materials necessarily involved.  [Emphasis added.]

[32]

Corpex
    sued the government for, among other things, the additional costs arising from
    the mistake as to the soil conditions.  The trial judge allowed this part of
    Corpexs claim based on considerations of equity rather than on a technical
    application of certain clauses in the General Conditions.
[2]

[33]

The
    Federal Court of Appeal overturned the trial decision on this point because
    Corpex had failed to give notice as required by clause 12 of the General
    Conditions.

[34]

The
    Supreme Court upheld the decision of the Federal Court of Appeal.  In paras. 59
    and 60 of
Corpex
, Beetz J., writing for the court, explains that a
    clause such as clause 12 of the General Conditions is of benefit to both the
    contractor and the owner.

The contractor is practically certain of being compensated for
    additional costs either during the work or later, if he complies with the
    provisions of clause 12, and in particular, if he gives the notice provided for
    in that clause.

An owner who is thus informed of a mistake as to the nature of
    the soil knows that the contractor will probably not drop his claim, and he is
    enabled to reconsider his position. He can in practice be assured that the work
    will go forward if he wishes  . He may conclude another agreement with the
    same contractor or some other.  If he prefers for the work to continue under
    the new circumstances, he may make arrangements to monitor quantities and costs
    of additional work so that the payments due the contractor ... can be made.

[35]

In
    para. 62, Beetz J. explains why compliance with a notice provision is a
    condition precedent to legal proceedings:

However, once the work is complete, a contractor cannot claim
    in a court of law benefits similar to those which clause 12 would have
    guaranteed if he has not himself observed that clause and given the notice for
    which the clause provides.  Otherwise, he would be depriving the owner of the
    benefits which he is guaranteed by clause 12.

[36]

There
    was no failing which provision in
Corpex
.  Nonetheless, the
    contractor was barred from asserting this part of its claim because it had
    failed to give notice as required by clause 12.

[37]

Nor
    was there a failing which provision in
Doyle Construction Co. v. Carling
    OKeefe Breweries of Canada Ltd.
(1988), 27 B.C.L.R. (2d) 89 (C.A.).  In
Doyle
,
    the plaintiff contractor was engaged to construct an expansion of the
    defendants brewery.  The tender documents did not contain a clear statement
    that certain items of equipment would be installed by the defendant during the
    construction.  The contractor contracted on the assumption that the equipment
    would not be installed until after the construction was complete.  When the
    mistake was discovered a new construction schedule had to be drawn up.  After
    the work was completed, the contractor submitted a claim for the extra costs
    incurred because of delay.

[38]

The
    trial judge held that the defendant had not breached the contract but, in any event,
    the contractors claim could not proceed because the contractor had failed to
    give notice as required by the contract.  He noted that had the contractor
    given proper notice, the defendant could have addressed cost reduction
    measures, insisted on the institution of a cost control system and taken steps
    to see that all records were preserved.  The contractors failure to comply
    with the notice provisions deprived the defendant of these rights.

[39]

The
    British Columbia Court of Appeal dismissed the contractors appeal, holding
    that compliance with the notice provision in the contract was a condition
    precedent to the contractors claim.

[40]

In
Bemar Construction (Ontario) Inc. v. Mississauga (City of)
(2004), 30
    C.L.R. (3d) 169 (On. S.C.), Fragomeni J. considered
Doyle
at length
    and applied the principles set out in it.  At para. 194, Fragomeni J. concluded
    that the contractor could not advance its claims as it had failed to properly
    comply with the notice provisions in the contract.  On appeal, this court
    approved the trial decision: see
Bemar Construction (Ontario) Inc. v.
    Mississauga (City of)
2007 ONCA 685, 63 C.L.R. (3d) 161.

[41]

Again,
    there was no failing which provision in
Bemar
.

[42]

I
    acknowledge that at para. 6 of
First City Development Corp. Ltd. v.
    Stevenson Construction Co. Ltd.
(1985), 14 C.L.R. 250, the British
    Columbia Court of Appeal stated:

I approach the construction of art. 36 with the proposition
    established by the decided cases in mind: if a party to a building contract is
    to be deprived of a cause of action, this is only to be done by clear words.

[43]

However,
    as the motion judge explained, there are significant factual distinctions
    between
First City
and this case.  In
First City
, there was
    no express time requirement.  Article 36 of the construction contract provided
    that a claim was to be made in writing within a reasonable time after the
    first observance of such damage and not later than the time of final
    certificate.   The plaintiff commenced an action one year after completion.
    As no final certificate of completion had ever been issued, the claim was
    permitted to proceed.

[44]

Two
    additional points must be made in respect of the decision in
First City
.
    First, the court makes no mention of
Corpex
in its judgment.  Second,
Doyle
was decided after
First City
.  The British Columbia Court of Appeal
    was fully aware of its decision in
First City
when it rendered its
    decision in
Doyle
.
[3]
Nonetheless, and in the absence of a failing which clause, the court clearly
    and emphatically concluded that compliance with a notice provision is a
    condition precedent to maintaining a claim in the courts.

[45]

Accordingly,
    I see no error in the motion judges interpretation of the Notice Provision.
    This ground of appeal fails.

Issue 2:
The Absence of Evidence of Prejudice to the City

[46]

Clearway
    submits that when dealing with notice provisions, the courts central concern
    is to protect parties from any prejudice resulting from non-compliance with
    them.  It contends that
Doyle
and
Bemar
are authority for the
    proposition that notice provisions serve to bar claims only where there is
    evidence of prejudice resulting from non-compliance.  Clearway says that the
    City provided no evidence that it suffered prejudice as a result of the timing
    and delivery of the August 2010 Claim and, therefore, the motion judge erred in
    granting partial summary judgment.

[47]

I
    begin by considering
Corpex
.  Does it stipulate that prejudice must be
    proven in order for an owner to rely on a notice provision?  No, it does
    not.    As para. 60 of
Corpex
makes clear, one purpose of a notice
    provision is to enable the owner to consider its position and the financial
    consequences of the contractor providing additional work.  Notice gives the
    owner the opportunity to decide whether to conclude another agreement with the
    contractor or have the work done by some other.  It also enables the owner to
    make arrangements to monitor the costs of the additional work.  The contractor
    must give notice in accordance with the notice provision, otherwise it deprives
    the owner of the benefits guaranteed by the notice provision.

[48]

What
    then of
Doyle
and
Bemar
?  Do either of these cases stand for
    the proposition that the owner must show prejudice in order to rely on a notice
    provision?  In my view, they do not.

[49]

At
    para. 21 of
Doyle
, the trial judge is quoted as stating that had the
    contractor given proper notice, the defendant could have addressed cost
    reduction measures, could have insisted upon the institution of a cost control
    system, and could have taken steps to see that all records, including site
    diaries, were preserved.  Similarly, had Clearway given proper notice in this
    case, the City could have chosen whether to permit Clearway to continue with
    the work occasioned by the flood and, if so, it could have instituted cost
    control mechanisms.  The fact that the trial judge in
Doyle
made those
    findings does not make it a requirement in law.

[50]

Bemar
does not elevate this aspect of
Doyle
to a requirement of law.  It is
    true that
Doyle
is quoted at length and relied on by the trial judge in
Bemar
, and that the findings of prejudice in
Doyle
set out in
    the preceding paragraph are quoted.  But, Fragomeni J. does not suggest that
    prejudice must be established before non-compliance with notice provisions will
    bar a claim.  At para. 194 of the
Bemar
trial decision, Fragomeni J.
    concludes that the contractor did not properly comply with the notice
    provisions in the contract and, therefore, it could not advance its claims.  He
    made no finding of prejudice on the part of the city in reaching that conclusion.

[51]

Accordingly,
    there was no onus on the City to lead evidence of prejudice.  As owner, the
    City is assumed to have been prejudiced by a multimillion dollar claim being
    made years after the Contract permitted and long after the City could consider
    its position and take steps to protect its financial interests.

Issue 3:
Reliance
    on the Notice Provision despite Failing to Comply with GC 3.14.04

[52]

GC
    3.14.04 of the Contract requires the parties to make all reasonable efforts to
    resolve their dispute by amicable negotiations and to provide open and timely
    disclosure of relevant facts, information, and documents to facilitate these
    negotiations.

[53]

Clearway
    says that instead of attempting to negotiate after receiving the March 2007
    Claim, the City simply issued the denial letter of April 4, 2007.  Clearway
    also complains about the Citys delay in disclosing the report prepared by its
    geotechnical engineer on the causes of the flood. Clearway submits that because
    the City failed to comply with the negotiation and disclosure requirements in
    GC 3.14.04, it should be barred from relying on the Notice Provision.

[54]

In
    my view, this submission completely misses the mark.  GC 3.14.04
follows
the Notice
    Provision in GC 3.14.03.  Therefore, the negotiation and disclosure
    requirements in GC 3.14.04 arise
after
a claim has been made pursuant to GC 3.14.03.  Accordingly, the complaints that
    Clearway levies against the City about negotiation and disclosure can only
    relate to the March 2007 Claim, with which the City took no issue in the motion
    below.  An alleged failure on the part of the City to negotiate in the spring
    of 2007 is not, and cannot be, relevant to the August 2010 Claim, as the
    negotiation requirement did not arise until the August 2010 Claim had been
    delivered to the City.  Similarly, the disclosure requirement could not have
    arisen in 2007 in respect of the August 2010 Claim.

[55]

Finally,
    while I need not decide the point, it may be that GC 3.14.04 is not engaged at
    all where, as in this case, the August 2010 Claim was not properly advanced in
    accordance with the Notice Provision.

Issue 4:
Items 7 and 8 of the August 2010 Claim

[56]

Items
    3 and 6 of the March 2007 Claim were for the extended maintenance of
    excavations or pits, and the associated shoring required for the pits.  The
    cost of these two items in the March 2007 Claim was slightly in excess of
    $455,000.  Clearway says that items 7 and 8 of the August 2010 Claim are for
    the same items, but for the increased amount of approximately $1,700,000.

[57]

Clearway
    submits that the motion judge erred in failing to recognize that items 7 and 8
    of the August 2010 Claim are of the same type as those in items 3 and 6 of the
    March 2007 Claim and, instead, treated them as new claims.  It asks that even
    if the appeal is otherwise dismissed, it be allowed to continue to pursue the
    amounts set out as items 7 and 8 of the August 2010 Claim.

[58]

The
    City disputes the factual assertion that underpins this ground of appeal.  It
    says that items 3 and 6 of the March 2007 Claim are for extended maintenance of
    excavations under Leslie Street and under a CN Rail tunnel but that items 7 and
    8 are for pit delay costs at numerous locations, including Leslie Street and
    the CN Rail tunnel.

[59]

Corpex
dictates that this ground of appeal must fail.  It will be recalled that in
    para. 62 of
Corpex
, the Supreme Court stated:

[O]nce work is complete, a contractor cannot claim in a Court
    of law benefits similar to those which [the notice provision] would have
    guaranteed if he has not himself observed that clause and given the notice for
    which the clause provides.

[60]

Thus,
    even if Clearways factual assertion is correct, Clearway cannot rely on items
    3 and 6 of the March 2007 Claim to save items 7 and 8 of the August 2010
    Claim.  The Notice Provision requires detailed claims in which the items being
    claimed are identified and supported by records.  Items 3 and 6 do not contain
    the information necessary to meet those requirements in respect of items 7 and
    8 of the August 2010 Claim.  Accordingly, items 3 and 6 of the March 2007 Claim
    did not give the notice required by the Notice Provision such that Clearway can
    rely on them to proceed with its claims in items 7 and 8 of the August 2010
    Claim.

Issue 5:
No
    Complaint by the City in respect of the Date of Delivery of the March 2007
    Claim

[61]

This
    ground of appeal rests on the timing of the March 2007 Claim, which Clearway
    delivered to the City more than 30 days after completion of the work affected
    by the flood.

[62]

Clearway
    contends that as the City did not raise any issue with respect to the timing of
    the March 2007 Claim, it waived compliance with the Notice Provision or,
    alternatively, it varied the terms of the Contract by this conduct.  On the
    basis of either waiver or variation of contract, Clearway submits, the City
    cannot rely on the timing component of the Notice Provision to bar the August
    2010 Claim.

[63]

The
    Supreme Court of Canada provides guidance on the doctrine of waiver in
Saskatchewan
    River Bungalows Ltd. v. Maritime Life Assurance Co.
,
[1994] 2 S.C.R. 490.  In paragraphs 19,
    20 and 24, it lays down the following.  Waiver occurs when one party to a
    contract (or proceeding) takes steps that amount to foregoing reliance on some
    known right or defect in the performance of the other party.  It will be found
    only where the evidence demonstrates that the party waiving had (1) a full
    knowledge of the deficiency that might be relied on and (2) an unequivocal and
    conscious intention to abandon the right to rely on it.  The intention to
    relinquish the right must be communicated.  Communication can be formal or
    informal and it may be inferred from conduct.  The overriding consideration in
    each case is whether one party communicated a clear intention to waive a right to
    the other party.

[64]

There
    is nothing in Clearways affidavit material that meets the requirement that the
    City communicated an unequivocal and conscious intention to abandon its right
    to rely on the Notice Provision or to otherwise waive strict compliance with
    its terms.  Indeed, Clearway did not assert that it had any such belief.
    Accordingly, there is no factual basis to support this submission.  On that
    basis alone, this ground of appeal must fail.

[65]

Two
    other arguments advanced on this ground of appeal warrant comment.  The first
    is Clearways argument, based on the decision of this court in
Colautti
    Construction Ltd. v. Ottawa
(
City
    of
)
(1984), 46 O.R. (2d)
    236, that the City varied the terms of the Contract by its conduct such that it
    cannot rely on the timing component of the Notice Provision.

[66]

Colautti
    Construction
is a very different case from the present one.  In
Colautti
    Construction
, the plaintiff contractor entered into a contract with the
    defendant city for the construction of a sanitary sewer.  The contract
    stipulated that written authorization was required for additional charges.
    Nonetheless, at various different times over the course of the project, the
    contractor billed the city for significant extra charges and the city paid
    them, despite the absence of written authorization.  This court held that the
    parties had varied the terms of the contract by their conduct and the city
    could not rely on the strict provisions of the contract to escape liability for
    further additional costs.

[67]

In
    the present case, there is no pattern of conduct by the parties over the course
    of the Contract demonstrating that they did not intend to be bound by the
    Notice Provision.  Far from ignoring the relevant provisions in the Contract,
    the parties acted in compliance with its terms.  GC 3.14.03.01 required
    Clearway to give notice of any situation that might lead to a claim for
    additional payment.  The affidavit evidence shows that Clearway did this.
    Further, as we have seen, the Notice Provision required Clearway to give a
    detailed claim after completion of the work affected by the situation.
    Clearway did that, by delivering its March 2007 Claim.  As for the City, GC
    3.14.03.05 required that it advise Clearway, in writing, within 90 days of
    receiving the detailed claim, of its opinion of the validity of the claim.
    This the City did by means of its letter dated April 4, 2007, which denied the
    March 2007 Claim.  There is no pattern of conduct by the parties that had the
    effect of varying the terms of the Contract.

[68]

The
    second matter warranting comment is the Citys contention that waiver and
    promissory estoppel are one and the same.  Based on this view, the City
    submitted that Clearway had to meet the test for promissory estoppel enunciated
    by the Supreme Court of Canada in
Maracle v. Travellers Indemnity Co. of
    Canada
, [1991] 2 S.C.R. 50, at para. 13:

The principles of promissory estoppel are well settled.  The
    party relying on the doctrine must establish that the other party has, by words
    or conduct, made a promise or assurance which was intended to affect their
    legal relationship and to be acted on.  Furthermore, the representee must
    establish that, in reliance on the representation, he acted on it or in some
    way changed his position.

[69]

The
    Supreme Court decided
Saskatchewan River Bungalows
a mere three years
    after
Maracle
.  It did not conflate or equate the requirements for
    waiver and promissory estoppel in those two cases.  Rather, as has been seen,
    it articulated different requirements for each doctrine.  Indeed, at para. 18
    of
Saskatchewan River Bungalows
, after acknowledging that waiver and
    promissory estoppel are closely related, the Supreme Court expressly declined
    to determine how and whether the two doctrines should be distinguished.
    Instead, it decided the appeal based on waiver, because that is how the
    parties [had] chosen to frame their submissions.

[70]

There
    has been much speculation, both judicial and academic, on whether waiver and
    promissory estoppel are essentially the same thing, with the sole or primary
    difference being that waiver developed as a common law doctrine whereas
    promissory estoppel arose in equity.
[4]
That determination awaits the proper case, one in which it is squarely raised
    and fully argued. Following the lead of the Supreme Court, I would decide this
    ground of appeal based on waiver and variation, as that is how Clearway framed
    the issue.  I would add, however, that if the doctrine of promissory estoppel
    is in play, my conclusion that Clearway has failed to establish the necessary
    evidentiary basis is reinforced because there is no evidence of detrimental
    reliance.

DISPOSITION

[71]

Accordingly,
    I would dismiss the appeal, with costs to the City in the agreed-on amount of
    $5,000, inclusive of disbursements and applicable taxes.

Released: September 11, 2012 (E.E.G.)

E.E. Gillese
    J.A.

I agree R.G. Juriansz J.A.

I agree G.J. Epstein J.A.

Appendix A

GC 3.14 Claims, Negotiations, Mediation

GC 3.14.01 Continuance of the Work

.01     Unless the Contract has been terminated or completed, the
    Contractor shall in every case, after serving or receiving any notification of
    a claim or dispute, verbal or written, continue to proceed with the Work with
    due diligence and expedition.  It is understood by the parties that such action
    will not jeopardize any claim it may have.

GC 3.14.02 Record Keeping

.01     Immediately upon commencing work which may result in a claim,
    the Contractor shall keep Daily Work Records during the course of the Work,
    sufficient to substantiate the Contractors claim, and the Contract
    Administrator will keep Daily Work Records to be used in assessing the
    Contractors claim, all in accordance with clause
GC
    8.02.07
, Records.

.02     The Contractor and the Contract Administrator shall reconcile
    their respective Daily Work Records on a daily basis, to simplify review of the
    claim, when submitted.

.03     The keeping of Daily Work Records by the Contract Administrator
    or the reconciling of such Daily Work Records with those of the Contractor
    shall not be construed to be acceptance of the claim.

GC 3.14.03 Claims Procedure

.01     The Contractor shall give oral notice to the Contract
    Administrator of any situation which may lead to a claim for additional payment
    immediately upon becoming aware of the situation and shall provide written
    notice to the Contract Administrator of such situation or of any express intent
    to claim such payment, within seven days of the commencement of any part of the
    work which may be affected by the situation or will form part of the claim.

.02     Not used.

.03     The Contractor shall submit detailed claims as soon as
    reasonably possible and in any event no later than 30 Days after completion of
    the work affected by the situation.  The detailed claim shall:

a)

identify
    the item or items in respect of which the claim arises;

b)

state
    the grounds, contractual or otherwise, upon which the claim is made; and

c)

include
    the Records maintained by the Contractor supporting such claim.

In
    exceptional cases the 30 Days may be increased to a maximum of 90 Days with
    approval in writing from the Contract Administrator.

.04     Within 30 Days of the receipt of the Contractors detailed
    claim, the Contract Administrator may request the Contractor to submit any
    further and other particulars as the Contract Administrator considers necessary
    to assess the claim.  The Contractor shall submit the requested information
    within 30 Days of receipt of such request.

.05     Within 90 Days of receipt of the detailed claim, the Contract
    Administrator shall advise the Contractor, in writing, of the Contract
    Administrators opinion with regard to the validity of the claim.

GC 3.14.04 Negotiations

.01     The parties shall make all reasonable efforts to resolve their
    dispute by amicable negotiations and agree to provide, without prejudice, open
    and timely disclosure of relevant facts, information, and documents to
    facilitate these negotiations.

.02     Should the Contractor disagree with the opinion given in
    paragraph
GC 3.14.03.05
, with respect to any part
    of the claim, the Contract Administrator shall enter into negotiations with the
    Contractor to resolve the matters in dispute.  Where a negotiated settlement
    cannot be reached and it is agreed that payment cannot be made on a Time and
    Material basis in accordance with clause
GC 8.02.04
,
    Payment on a Time and Material Basis, the parties shall proceed in accordance
    with clause
GC 3.14.05
, Mediation.

GC 3.14.05 Mediation

.01     If a claim is not resolved satisfactorily through the negotiation
    stage noted in clause
GC 3.14.04
, Negotiations,
    within a period of 30 Days following the opinion given in paragraph GC
3.14.03.05
, and the Contractor wishes to pursue the
    issue further, the parties may, upon mutual agreement, utilize the services of
    an independent third party mediator.

.02     The mediator shall be mutually agreed upon by the Owner and
    Contractor.

.03     The mediator shall be knowledgeable regarding the area of the
    disputed issue.  The mediator shall meet with the parties together and
    separately, as necessary, to review all aspects of the issue.  In a final
    attempt to assist the parties in resolving the issue themselves prior to
    proceeding to arbitration the mediator shall provide, without prejudice, a
    non-binding recommendation for settlement.

.04     The review by the mediator shall be completed within 90 Days
    following the opinion given in paragraph
GC 3.14.03.05
.

.05     Each party is responsible for its own costs related to the use
    of the third party mediator process.  The costs of the third party mediator
    shall be equally shared by the Owner and Contractor.

GC 3.14.06 Payment

.01     Payment of the claim will be made no later than 30 Days after
    the date of resolution of the claim or dispute.  Such payment will be made
    according to the terms of
Section GC 8.0
,
    Measurement and Payment.

GC 3.14.07 Rights of Both Parties

.01     It is agreed that no action taken under this subsection
GC 3.14
, Claims, Negotiations, Mediation, by either
    party shall be construed as a renunciation or waiver of any of the rights or
    recourse available to the parties, provided that the requirements set out in
    this subsection are fulfilled.

[1]
The Notice Provision allows for time extensions of up to 90 days in
    exceptional cases, with approval in writing from the Contract Administrator.
    As the August 2010 Claim greatly exceeds either time limit, for ease of
    reference I refer only to the 30-day limit.

[2]

Corpex
,
at para. 31.

[3]
See pp. 101-103.

[4]
See, for example,
Re Med-Chem Health Care Inc.
, [2000] O.J. No. 4009 (S.C.);
HREIT Holdings 45 Corp. v. R.A.S. Food Services (Kenora) Inc.
(2009),
    80 R.P.R. (4th) 64, at paras.
57-61 (Ont. S.C.);
Re Tudale
    Explorations Ltd. and Bruce et al.

(1978), 20 O.R. (2d) 593, at pp.
    595-99 (H. Ct. J.);
Petridis v. Shabinsky
(1982), 35 O.R. 92d) 215 (H.
    Ct. J.);
Laurie v. Jones
, 2004 NSSC 87, at para. 14, 223 N.S.R. (2d)
    129. For academic consideration of this matter see, for example, S.M. Waddams,
The
    Law of Contracts
, 6th ed. (Toronto: Canada Law Book, 2010), at paras.
    195-206; Angela Swan,
Canadian Contract Law
, 2d ed. (Markham, Ont.:
    LexisNexis, 2009), at paras. 2.198-255; John D. McCamus,
The Law of
    Contracts
(Toronto: Irwin Law, 2005), at pp. 275ff.


COURT OF APPEAL FOR ONTARIO

CITATION:
Toronto-Dominion
    Bank v. Hylton, 2012 ONCA 614

DATE: 20120917

DOCKET: C53134

Winkler C.J.O., LaForme J.A. and Cunningham
    A.C.J. (
ad hoc
)

BETWEEN

The Toronto-Dominion Bank

Plaintiff (Respondent)

and

Paul Hylton also known as Paul U Hylton

Defendant (Appellant)

Osborne Barnwell, for the appellant

Dennis Touesnard, for the respondent

Heard and released orally: September 10, 2012

On appeal from the judgment of Justice Harrison S. Arrell
    of the Superior Court of Justice, dated December 10, 2010.

ENDORSEMENT

[1]

All the proposed fresh evidence filed for this courts consideration on
    this appeal was available to Hylton before the second hearing of the Toronto-Dominion
    Banks summary judgment motion. Especially given this courts reasons and
    comments in Hyltons first appeal, there is no reason why he would not have
    been aware of the requirement to exercise reasonable diligence in obtaining and
    presenting this evidence at the second summary judgment hearing.

[2]

The affidavit of the signing officer at Keywell is sparse. It simply
    makes a bald assertion that the loan was intended to be for the company, but
    does not explain the circumstances surrounding the loan applications or the
    defaults. The evidence was available well before the hearing and without more
    evidence on contractual intent, these materials are meaningless.

[3]

Moreover, Hylton has not only waited until now to obtain evidence he
    could have obtained all along, he is presenting a picture of the facts so
    poorly incomplete and unpersuasive as to beg the question: what will he gain
    from having a lower court consider this matter for a third time?

[4]

The motion judge exercised his discretion in weighing the evidence,
    drawing inferences from the facts and making findings of credibility. He made
    no errors in doing so.

[5]

A party moving for summary judgment has the evidentiary burden of
    showing there is no genuine issue for trial. Once this burden is discharged the
    responding party must prove that its defence has a real chance of success. Each
    party must put its best foot forward to establish whether or not there is an
    issue for trial. The court is entitled to assume that the record contains all the
    evidence the parties would present at trial.

[6]

The appellant has failed to put his best foot forward after this court
    has given him an additional chance to do so. The appeal is dismissed. Costs to
    the respondent are fixed in the amount of $5,000, inclusive of disbursements
    and applicable taxes.

W. K.
    Winkler C.J.O.

H.S. LaForme J.A.

J.D.
    Cunningham A.C.J. S.C.J. (
ad hoc
)