COURT OF APPEAL FOR ONTARIO

CITATION:
Kyko
    Global Inc. v. M/S Crawford Bayley & Co., 2021 ONCA 736

DATE: 20211020

DOCKET:
C68842

Rouleau, Hoy and Thorburn JJ.A.

BETWEEN

Kyko Global Inc.

Plaintiff (Respondent)

and

M/S Crawford Bayley & Co. and Sanjay Asher

Defendants (Appellants)

James Bunting and Anisah Hassan, for the appellants

Jayson W. Thomas and Laura Chiu, for the respondent

Heard: September 24, 2021 by video conference

On appeal from the order of Justice Michael T. Doi of the
    Superior Court of Justice, dated October 30, 2020, with reasons at 2020 ONSC 6537.

Hoy J.A.:

[1]

The appellants, M/S Crawford Bayley & Co.
    and Sanjay Asher (Mr. Asher), are a law firm based in Mumbai, India, and
    a senior partner of that firm, respectively. Before the motion judge, they
    unsuccessfully argued that Ontario lacks jurisdiction over, and is not the
    convenient forum for, the respondent, Kyko Global Inc.s action against them.
    They appeal the motion judges dismissal of their motion seeking the stay or
    dismissal of Kykos action.

Background

[2]

Kyko, an Ontario corporation, had retained the
    appellants to provide an opinion on the enforceability of a guarantee to be
    provided by Sical Logistics Limited (Sical or the guarantor), a publicly-traded
    company in India. The guarantee was security for a trade finance facility
    provided by Kyko to another Indian company, West Coast Marine Private Limited.
    In a letter dated September 9, 2010 addressed to Kykos Ontario counsel, the
    appellants opined that the guarantee was enforceable in accordance with its
    terms. The guarantee had Ontario choice of law and forum provisions.

[3]

Unbeknownst to Kyko, it was Mr. Ashers cousin,
    Yogesh Asher, who effectively brokered Kykos agreement to provide the trade
    facility to West Coast Marine Private Limited.

[4]

The facility went into default and Kyko obtained
    a default judgment in Ontario against Sical. Sical obtained an interim
    injunction from the High Court of Judicature at Madras, in India, to restrain
    enforcement of the default judgment by alleging that the guarantee was a
    forgery. Police in the City of Chennai (also known as Madras) opened a criminal
    investigation and concluded that the signatures on the guarantee were forged.

[5]

Kyko subsequently brought this action against
    the appellants for negligent and fraudulent misrepresentation and breach of
    contract. At the time the motion was heard, Sicals injunction application was
    still pending before the Madras High Court. The motion judge noted that Kyko
    concedes that its claim against the appellants may only proceed if the
    guarantee is a forgery, and as a result depends on the outcome of the
    proceeding in the Madras High Court.

The motion judges decision

[6]

Applying the test in
Club Resorts
    Ltd. v.
Van Breda
, 2012
    SCC 17, [2012] 1 S.C.R. 572, the motion judge concluded that two
    presumptive connecting factors were present. Therefore, there was a presumption
    that there was a real and substantial connection between the subject matter of
    the litigation and Ontario.

[7]

First, there was a good arguable case that the
    tort (fraudulent or negligent misrepresentation) took place in Ontario: in particular,
    there was a good arguable case that the appellants legal opinion was first
    provided to Kyko in Ontario; arrangements were made in Ontario to advance the
    credit facility; and Kyko suffered damages in Ontario.

[8]

Second, there was a good arguable case that the
    contract connected to the dispute was made in Ontario. Kyko pleaded this in its
    statement of claim, and the appellants did not adduce any evidence to challenge
    or deny it. In the absence of evidence from the appellants to challenge or deny
    the facts pleaded in Kykos claim, Kyko could rely on those facts, which are
    presumed to be true, to presumptively demonstrate jurisdiction
simpliciter
:
Ontario v. Rothmans Inc.
, 2013 ONCA
    353, 115 O.R. (3d) 561, at paras. 111-114, leave to appeal refused, [2013] S.C.C.A.
    No. 327;
Vahle v. Global Work & Travel Co. Inc.
, 2020 ONCA 224, at para. 13.

[9]

The motion judge noted that the burden of
    rebutting the presumption of jurisdiction is on the party challenging it. The
    appellants were required to show facts to demonstrate that the presumptive
    connecting factors do not point to any real relationship between the subject
    matter of the litigation and the forum, or point to a weak relationship:
Van Breda
, at para. 95. The motion
    judge found that they had failed to do so and, accordingly, that Ontario had
    jurisdiction
simpliciter
over the action.

[10]

The motion judge then considered whether the
    appellants had discharged their burden of showing why jurisdiction should nevertheless
    be declined in favour of a different forum (
forum non conveniens
). He correctly noted that the standard to displace the plaintiffs
    chosen forum is high: the alternate forum must be clearly more appropriate
    such that it would be fairer and more efficient to decide the dispute there:
Van Breda
, at paras. 108-9.

[11]

As I discuss in more detail below in addressing
    the fifth issue that the appellants raise on appeal, the motion judge
    considered six factors in the course of his analysis. He concluded that the
    appellants had not discharged their burden to show that their proposed
    alternate forum, Mumbai, is clearly more appropriate.

Issues on appeal

[12]

The appellants raise five issues on appeal:

1.

Did the motion judge reverse the burden of proof on the test for
    jurisdiction
simpliciter
?

2.

In his jurisdiction
simpliciter
analysis, did the motion judge
    err by accepting allegations in the statement of claim as true despite evidence
    to the contrary?

3.

Did the motion judge discount the appellants evidence on the location
    of their witnesses in his
forum non conveniens
analysis as a result of
    a misreading of the applicable jurisprudence?

4.

Did the motion judge fail to consider relevant factors in his
forum non
    conveniens
analysis?

5.

Is the motion judges decision that the appellants had not discharged
    their burden to show that Mumbai was a clearly more appropriate forum
    unreasonable?

First, I address the standard of
    review. Then I address the appellants five issues in turn.

Standard of review

[13]

Whether or not a motion judge has erred in the application
    of the test for jurisdiction
simpliciter
is a
    question of mixed fact and law, reviewable for palpable and overriding error,
    unless an error in the application of the test can be attributed to an
    extricable question of law:
Airia Brands Inc. v. Air Canada
, 2017 ONCA 792, 417 D.L.R. (4th) 467 at para. 39, leave to appeal
    refused, [2017] S.C.C.A. No. 476.

[14]

The application of
forum non conveniens
is an exercise
    of discretion reviewable in accordance with the principle of deference to
    discretionary decisions. An appeal court should intervene only if the motion
    judge erred in principle, misapprehended or failed to take account of material
    evidence, or reached an unreasonable decision:
Young v. Tyco International
    of Canada Ltd.
, 2008 ONCA 709, 92 O.R. (3d) 161, at para. 27;
Éditions
    Écosociété Inc. v. Banro Corp.
, 2012 SCC 18, [2012] 1 S.C.R. 636, at para.
    41;
Haaretz.com v. Goldhar
, 2018 SCC 28, [2018] 2 S.C.R. 3, at para.
    49. Errors of law and clear and serious errors of fact may also give grounds
    for intervention:
Lapointe Rosenstein Marchand Melançon LLP v. Cassels
    Brock & Blackwell LLP
, 2016 SCC 30, [2016] 1 S.C.R. 851, at para. 54;
Van Breda
at para. 112.

[15]

With the standard of review in mind, I turn now to the appellants
    arguments on jurisdiction
simpliciter
.

(1)

Did the motion judge reverse the burden of proof on the test for
    jurisdiction
simpliciter
?

[16]

As noted above, the motion judge concluded that
    Kyko has a good arguable case that Kyko first received the opinion in Ontario,
    when it was sent to Kykos legal counsel.

[17]

The appellants point to the evidence that the
    original of the opinion was delivered to Kykos CEO, Mr. Kulkarni, in India. They
    argue that the motion judge erred in applying the test for jurisdiction
simpliciter
: he reversed the burden of proof by only considering whether that
    evidence rebutted the presumption of jurisdiction, and not in determining
    whether Kyko had discharged its onus of establishing that there was a good
    arguable case.

[18]

I reject this argument. The motion judge
    recounted that on September 9, 2010, Mr. Asher signed the opinion for his firm
    and faxed it to Ms. Thomas, Kykos external legal counsel, at her office in Brampton,
    Ontario. Then, on September 13, 2010, Mr. Ashers associate, Ms. Batra, emailed
    Ms. Thomas an electronic version of the opinion. That email indicated that the
    opinion is being handed over to Yogesh [Asher]. This was done so that he
    could hand-deliver the original opinion to Mr. Kulkarni. There was no
    evidence about when the original opinion was delivered to Mr. Kulkarni.
    The motion judge wrote that [i]t also appears from the record that Mr. Kulkarni
    could not have received the Opinion before it was sent to Ms. Thomas by
    facsimile on September 9, 2010 and by email on September 13, 2010.

[19]

Citing
Rothmans
, at paras. 53-54, and
Vahle
, at para. 13, the motion judge held that on a jurisdiction motion
    brought at an early stage of a proceeding, the court does not assess the facts
    of a case beyond deciding whether a good arguable case is shown to ground
    jurisdiction. After considering the appellants argument in relation to the
    delivery of the original opinion to Mr. Kulkarni, the motion judge concluded
    that Kyko has a good arguable case that Kyko first received the opinion in
    Ontario. The motion judge did not reverse the burden of proof. He considered
    the evidence on which the appellants rely both in concluding that Kyko has a
    good arguable case, and in concluding that the appellants had not rebutted the
    presumption of jurisdiction.

[20]

The appellants also argue that the motion judges
    conclusion that there was a good arguable case that the receipt of their
    opinion in Ontario by Ms. Thomas completed the tort of misrepresentation was
    tainted by legal error. They say that the document had to be received by a
    principal or directing mind of Kyko, and that did not occur until the opinion
    was delivered to Mr. Kulkarni in Mumbai.

[21]

I reject this argument. The opinion was
    addressed to Ms. Thomas. Mr. Kulkarnis evidence was as long as our lawyers
    were happy, I was happy. There was nothing for me to review. Here, there is
    clearly a good arguable case that receipt of the opinion by Ms. Thomas was
    receipt by Kyko.

[22]

Moreover, the tort of negligent or fraudulent
    misrepresentation occurs where the information is received and relied upon. Even
    if the opinion were first received in India, it should not deprive Ontario of
    jurisdiction. The appellants provided the opinion with the clear understanding that
    it would be relied on in Ontario: see
Central Sun Mining Inc. v.
    Vector Engineering Inc.
, 2013 ONCA 601, 117 O.R. (3d) 313,
    at para. 33, leave to appeal refused, [2013] S.C.C.A. No. 475.

(2)

Did the motion judge err by accepting allegations in the statement of
    claim as true despite evidence to the contrary?

[23]

As noted above, the motion judge further
    concluded that there was a good arguable case that the contract connected to
    the dispute was made in Ontario. Kyko pleaded this in its statement of claim,
    and the appellants did not adduce any evidence to challenge or deny it.

[24]

The appellants argue that the motion judges
    conclusion was tainted by palpable and overriding error. They say that Kykos
    pleading was in fact contradicted by Mr. Kulkarnis evidence on
    cross-examination. The motion judge accordingly erred in relying on the pleaded
    facts, and there was not a good arguable case that the contract connected to
    the dispute was made in Ontario. Further, they argue that the motion judge
    erred in law in permitting Kyko to rely on its pleading that the contract was
    made in Ontario: that was a legal conclusion, not an allegation of fact.
    Moreover, it was a bald conclusory statement and was not sufficiently particularized.

[25]

I disagree.

[26]

In cross-examination, Mr. Kulkarni was directed
    to the Notice of Examination, which asked that he produce evidence of any
    payment made by Kyko to the appellants in return for the provision of legal
    services and any contract or retainer agreement between Kyko and the
    [appellants].

[27]

Mr. Kulkarni confirmed that he did not produce
    any such documents because there werent any. During that exchange, he made the
    following statement, on which the appellants rely:

Obviously we didnt make any payment, if that
    is the question. But say in return for the provision of legal services, I
    said that
they didnt provide any legal services
    to Kyko,
so I dont know what this thing refers to. [Emphasis
    added.]

[28]

The appellants say the substance of Mr.
    Kulkarnis evidence is that Kyko did not have a contract with the appellants
    (they did not provide any legal services to Kyko) and, since there was no
    contract, there could not have been a contract made in Ontario.

[29]

I am not persuaded that the motion judges
    conclusion that there was a good arguable case that the contract connected to
    the dispute was made in Ontario is tainted by palpable and overriding error.

[30]

On the motion, there was no dispute that the
    appellants delivered the opinion and that they had been retained to do so.
    Indeed, Mr. Ashers evidence was that Kyko required that Crawford Bayley
    provide a legal opinion concerning the guarantee and that Crawford Bayley did
    not have written agreements with all its clients. The appellants did not argue
    below that there was no contract. The only issue was where the contract was
    made. In context, including that the opinion was addressed to Kykos Ontario
    legal counsel, Mr. Kulkarnis evidence does not contradict Kykos pleading that
    the contract was made in Ontario. The appellants should not now be permitted to
    assert that there was no contract.

[31]

Nor am I persuaded that the motion judge erred
    in principle by failing to require Kyko to lead evidence to support its pleading
    that the contract was made in Ontario. The appellants do not appear to have
    argued below that Kyko could not rely on its pleading to establish a
    presumptive connective factor because it pleaded a legal conclusion, or because
    it did not provide sufficient particulars. Moreover, in context, I would not
    characterize the allegation as a purely legal conclusion. Rather, as the motion
    judge found, it is essentially a factual allegation.

[32]

In
Rothmans
, at para. 113, this court suggested that a plaintiff asserting
    jurisdiction may be required call evidence to support undenied allegations in a
    statement of claim either where the cause of action as pleaded appears to be
    devoid of merit or where the pleadings fail to demonstrate any air of reality
    concerning the possible existence of the presumptive connecting factor. I agree
    with the motion judge that this is not such a case. Kyko pleaded that it is an
    Ontario corporation with its head office in Brampton, Ontario, and that the
    appellants delivered the opinion. It is open to the appellants to seek
    particulars under r. 25.10 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194.

[33]

In summary, I am not persuaded that the motion judge committed any palpable
    and overriding error of fact or any extricable error of law in finding that
    Ontario had jurisdiction
simpliciter
. I turn
    next to the appellants challenges to the motion judges
forum non
    conveniens
analysis.

(3)

Did the motion judge discount the appellants evidence on the location
    of their witnesses in his
forum non conveniens
analysis as a result of
    a misreading of the applicable jurisprudence?

[34]

One of the relevant factors in determining
    whether a defendant has discharged its burden of showing why jurisdiction
    should be declined to displace the forum chosen by the plaintiff is the
    comparative convenience and expense for the parties to the proceeding and for
    their witnesses in litigating in the court or in any alternative forum.

[35]

The motion judge concluded that this factor was
    neutral in this case. This ground of appeal arises out of the underlined
    portion of the passage below from the motion judges reasons addressing the
    comparative convenience and expense for the witnesses:

[51] Similarly, I find that the comparative convenience and
    expense for the witnesses is largely neutral in this matter. Kykos witnesses,
    including Mr. Kulkarni and Ms. Thomas, are in Ontario. Sanjay Asher, Ms. Batra
    and Yogesh Asher, are located in Mumbai. Mr. Rajappan and Mr. Sundar purportedly
    signed the Guarantee for Sical, but it is unknown if they are in India,
    Singapore or elsewhere. The Defendants may call others from Sical to testify,
    but do not know whether anyone at Sical has anything relevant to say and, if
    so, who or where they are. The Defendants may call a police witness from
    Chennai, located about 1,300 km from Mumbai, to testify about the forgery investigation.
    They also submit that Amit Punde, Kykos former representative in Pune, may be a
    witness, although Mr. Punde did not witness any relevant events and can only
    give second-hand information about the forgery investigation, which the police
    witness likely will address.
As the
Defendants gave little or no information as to what their
    witnesses will say, apart from Sanjay
Asher and
    Ms. Batra, I am persuaded to treat their proposed list of witnesses with
    caution:
Goldhar

at para 57
.

[52] Should a party or witness outside of Ontario not wish to
    travel to Brampton for any part of this proceeding, Kyko has undertaken to
    consent to their attendance by videoconferencing, which is how the parties
    conducted cross-examinations on the affidavits for this motion. The Defendants did
    not object to video testimony and led no evidence to suggest that any of its
    witnesses would not agree to testify by video. As a result, I find that video
    technology may offer a fair, convenient, and cost-effective way to obtain
    testimony from witnesses abroad at trial in Ontario:
Davies v.
Clarington
,
    2015 ONSC 7353 at paras 23-28. In contrast, there was no evidence of whether
    video evidence is permitted by the High Court of Bombay. [Emphasis added.]

[36]

The
    appellants argue that the motion judge relied on a passage in the decision of
    the motion judge in
Goldhar
that Côté J. overruled when the decision
    was appealed to the Supreme Court. She held at para. 67 that the motion judge
    had

erred by unreasonably discounting [the defendant] Haaretzs
    proposed witnesses and the relevance of their evidence. Haaretz had, in its
    factum, described what these 22 witnesses may speak to and had filed a
    supplemental affidavit briefly describing the evidence that 8 of the witnesses
    might give to assist it at trial. Goldhar had, in comparison, no evidence
    concerning the witnesses he might call and what those witnesses would speak to.

[37]

Côté
    J. described the motion judges error as involving a complete misapprehension
    of, or failure to consider, material evidence (at para. 50), and the motion
    judges conclusion regarding the comparative convenience and expense for the
    witnesses as wholly unreasonable in light of the evidence before him (at
    para. 55.) She concluded that this factor heavily favoured the forum proposed
    by the defendant (Israel). She also held that the motion judge erred in giving
    weight to the notion of having the Israeli witnesses (many of whom were
    reluctant) testify by videoconference, since there was no evidence that an
    Ontario court could compel them to do so.

[38]

The
    appellants argue that they, like the defendant Haaretz in
Goldhar
,
    provided a list of their proposed witnesses and a brief description of what
    some of them would speak to, and the motion judge therefore erred in treating
    their witness list with caution. They say this led the motion judge to
    erroneously conclude that the factor of comparative inconvenience for the
    witnesses was neutral. They submit that the motion judges error is not saved
    by his observation that videoconferencing may be an option for witnesses from
    outside of Ontario. They point to what they say are the inherent frailties of
    testifying by videoconference.

[39]

While
    the motion judge in this case erred in citing to the overruled passage in
Goldhar
,
    I am not persuaded that this warrants interference by this court. The
    appellants do not impugn any of the motion judges findings of fact in the
    passages reproduced above. The motion judge acknowledged that the appellants
    had provided information about what some of their witnesses (Mr. Asher and Ms.
    Batra) will say. Unlike Haaretz in
Goldhar
, however, Mr. Asher could
    not say what, if any relevant evidence the other witnesses might be able to
    provide. The motion judge in this case, therefore, unlike the motion judge in
Goldhar
,
    did not misapprehend the evidence and his conclusion was reasonable. His error
    in citing to
Goldhar
did not lead him to conclude that the factor of
    comparative inconvenience to witnesses was largely neutral.

[40]

Further,
    while I appreciate that there is a 9½-hour time difference between Ontario and
    Mumbai, the appellants have not demonstrated any error in principle concerning
    the motion judges observation that videoconferencing technology may offer a
    fair, convenient and cost-effective way to obtain testimony from witnesses
    abroad at trial in Ontario. It is open to an Ontario court to modify its usual
    sitting hours to better accommodate an out-of-country witness. Even before the COVID-19
    pandemic made videoconferencing software ubiquitous, Canadian courts have considered
    the possibility of proceeding electronically as part of the
forum non
    conveniens
analysis:
Tyco
at para. 52;
Henry Estate v. Henry
,
    2012 MBCA 4, 275 Man. R. (2d) 90, at paras. 54-57. The motion judge in this
    case did not fall into the error in
Goldhar
. Unlike Haaretz, the
    appellants did not adduce evidence that their witnesses in India would not testify
    voluntarily. The motion judge did not

rely on videoconferencing to
    overcome the problem of foreign witnesses who are unwilling to testify, in the
    absence of evidence that those witnesses could be compelled in Ontario.

(4)

Did the motion judge fail to consider relevant factors in his
forum
    non conveniens
analysis?

[41]

The
    appellants argue that the motion judge erred in principle in his
forum non
    conveniens
analysis because he failed to consider the jurisdiction where
    the factual matters arose and the location of the evidence.

[42]

I
    am not persuaded that, in the context of this case, the fact that the motion
    judge did not specifically address these two factors in his reasons constitutes
    an error in principle or resulted in an unreasonable decision.

[43]

In
Van Breda
, LeBel J. wrote the following at paras. 105 and 110:

A party applying for a stay on the basis of
forum non
    conveniens
may raise diverse facts, considerations and concerns. Despite
    some legislative attempts to draw up exhaustive lists, I doubt that it will ever
    be possible to do so. In essence, the doctrine focusses on the contexts of
    individual cases, and its purpose is to ensure that both parties are treated
    fairly and that the process for resolving their litigation is efficient

[T]he factors that a court may consider in deciding whether to
    apply
forum non conveniens
may vary depending on the context and might
    include the locations of parties and witnesses, the cost of transferring the
    case to another jurisdiction or of declining the stay, the impact of a transfer
    on the conduct of the litigation or on related or parallel proceedings, the
    possibility of conflicting judgments, problems related to the recognition and
    enforcement of judgments, and the relative strengths of the connections of the
    two parties.

[44]

As
    discussed in more detail below, the motion judges reasons reflect that he
    considered and balanced the following six factors in his
forum non
    conveniens
analysis: the comparative convenience and expense to the
    parties and witnesses in litigating in Ontario or India; the law to be applied
    to the issues in the proceeding; the desirability of avoiding a multiplicity of
    proceedings; the desirability of avoiding conflicting decisions in different
    courts; the enforcement of an eventual judgment; and the fair and efficient
    working of the Canadian legal system as a whole.

[45]

The
    appellants assert that all the underlying conduct described in Kykos statement
    of claim occurred in India, and that the majority of the physical evidence is
    located in India. These two factors clearly favour India. When these factors
    are considered (as they should have been), Mumbai is clearly a more appropriate
    forum than Ontario.

[46]

While the opinion was prepared in India, the motion judge found
    that
there was a good arguable case that the appellants legal
    opinion was first provided to Kyko in Ontario. Arrangements were made in
    Ontario to advance the credit facility, and Kyko suffered damages in Ontario.
    All the underlying conduct did not occur in India.

[47]

As to the significance of the physical evidence,
    on cross-examination, Mr. Asher admitted that he relied on only four
    documents in forming the opinion: the guarantee, the minutes of two board
    meetings of the guarantor relating to it, and the memorandum articles of
    association of the guarantor. He does not remember if he has ever seen the
    originals of the guarantee or minutes. The appellants do not identify any other
    documents that they say will be required in this case and are located in India.
    In assessing the comparative convenience to the parties and the witnesses, the
    motion judge considered that Mr. Asher is located in Mumbai.

[48]

In the context of this case, the factors that the appellants argue
    the motion judge should have considered are minor, and are largely subsumed by
    the motion judges analysis of the comparative convenience and expense to the
    parties and witnesses in litigating in Ontario or Mumbai.

(5)

Is the motion judges decision that the appellants had not discharged
    their burden to show that Mumbai was a clearly more appropriate forum
    unreasonable?

[49]

While noted above, for ease of reference, I
    repeat that the motion judge considered, and balanced, six factors in concluding
    that the appellants had not met the onus of showing India to be a
clearly
more
    appropriate forum for the action than Ontario: (1) the comparative convenience
    and expense for the parties to the proceeding and for their witnesses in
    litigating in Ontario or India; (2) the law to be applied to the issues in the
    proceeding; (3) the desirability of avoiding a multiplicity of proceedings; (4)
    the desirability of avoiding conflicting decisions in different courts; (5) the
    enforcement of an eventual judgment; and (6) the fair and efficient working of
    the Canadian legal system.

[50]

The motion judge found that the first four
    factors were neutral, the fifth factor favoured Mumbai, and the final factor
    favoured Ontario. As a result, he concluded that the appellants had not met the
    onus of showing India to be a clearly more appropriate forum than Ontario.

[51]

The appellants argue that the motion judge
    unreasonably concluded that the first four factors are neutral, and that the
    final factor favoured Ontario. They say these factors clearly favour India and,
    as a result, the motion judges conclusion that they had not met their onus of
    showing India to be a clearly more appropriate forum was unreasonable. Below, I
    address their arguments with respect to each of the challenged factors. As I
    will explain, the motion judges conclusions were reasonable.

[52]

As to the first factor (the comparative
    convenience and expense for the parties to the proceeding and for their
    witnesses in litigating in Ontario or in India), the appellants argue that,
    while an Ontario corporation, Kyko carries on business in India and was
    carrying on business in India in connection with and at the time it received
    the opinion and the vast majority of the witnesses are domiciled in India. They
    argue that, in light of this, the motion judges conclusion that the first
    factor is neutral was unreasonable.

[53]

I disagree. The motion judge noted that Kyko is
    situated in Brampton, Ontario and
no longer
has a business presence in
    India. Its CEO, Mr. Kulkarni, is based in Ontario and visits India
    infrequently. The motion judge did not fail to consider or misapprehend the
    evidence or make a clear and serious error of fact about Kykos business
    activities in India. In assessing the comparative convenience and expense to the
    parties, the motion judge reasonably focused on Kykos current situation,
    rather than what might have been its situation in the past.

[54]

Above, in addressing the third issue that the
    appellants raise on this appeal, I reproduce the motion judges analysis of the
    comparative convenience and expense for the witnesses. The motion judge did not
    find that the vast majority of the witnesses are domiciled in India. Further,
    his analysis reasonably considered more than the number of witnesses on each
    partys list of proposed witnesses. His decision that this factor is neutral
    was reasonable.

[55]

The appellants argue that, at its core, this
    action is about whether an Indian lawyer met the expected standard of care of
    an Indian lawyer in providing the opinion and that is a matter of Indian law.
    Accordingly, they argue, the motion judges conclusion that both Indian and
    Ontario law are implicated in this case, and the second factor

applicable law

was therefore a neutral factor, was unreasonable.

[56]

The motion judge specifically considered that
    Indian law was implicated because of this standard of care issue. However, he
    accepted that Ontario law was also implicated because of Kykos position that
    the place of the tort is Ontario, where it received and acted on the allegedly
    negligent
and fraudulent
representation in the opinion, and that Kykos contract claim
    pleads a breach of contract made in Ontario. The motion judge did not accept
    that, at its core, this action is about professional negligence.

[57]

The motion judges conclusion that both Indian
    and Ontario law are implicated in this case and that applicable law is
    therefore a neutral factor is reasonable.

[58]

Turning to the third and fourth factors
    (desirability of avoiding a multiplicity of proceedings and conflicting decisions),
    the appellants say that given that the Madras High Court will consider whether
    the guarantee is a forgery, it would be eminently reasonable for the Madras
    High Court to also determine the issues raised in Kykos action. The motion
    judges conclusion that these factors were neutral is accordingly unreasonable.

[59]

I disagree. The motion judge specifically
    recognized that the Madras High Court is to consider whether the guarantee is a
    forgery, which will overlap with Kykos claims against the appellants. He noted,
    however, that neither party viewed the Madras High Court as an appropriate or
    convenient forum: the appellants submitted that the High Court of Bombay in
    Mumbai was the convenient forum. He held that there was no evidence on this
    motion to suggest that having this proceeding heard in Mumbai would lead to any
    ongoing efficiencies with the ongoing matter in the Madras High Court or
    mitigate the multiplicity of proceedings. There was no indication that the
    parties or claims in the matter before the Madras High Court could be
    consolidated with Kykos action against the appellants if it were heard before
    the High Court of Bombay and it seemed likely that the litigation in Chennai
    will continue as a separate proceeding, whether Kykos claim is heard in Mumbai
    or Ontario. Nor was there any suggestion that having Kykos claim heard in
    Mumbai would result in procedural efficiencies with litigation in Chennai by
    allowing common records, productions or other evidence to be shared in both
    proceedings, or by allowing any appeals from the proceeding to be joined or
    heard in tandem. Further, whichever court hears Kykos claim  whether in
    Ontario or Mumbai  will likely have to consider the risk of a conflicting
    decision in the Madras High Court proceedings.

[60]

On appeal, the appellants attempt to re-cast
    their position before the motion judge, submitting that the Madras High Court
    is the clearly more convenient forum. However, Mr. Ashers evidence was that
    Kykos action should be heard in Bombay. The motion judges conclusion that the
    third and fourth factors are neutral is reasonable.

[61]

With
    respect to the sixth factor, the appellants argue that an Indian court is
    clearly in a better position to dispose fairly and efficiently of the
    litigation. Indeed, they say it is unfair to require an Indian law firm and
    lawyer who provided an opinion about the enforceability in India of a guarantee
    given by an Indian company to an Ontario company which carried on business in
    India to defend an action in Ontario arising out of their provision of that
    guarantee. They say this case is different from
Sincies Chiementin S.p.A.
    (Trustee of) v. King
, 2012 ONCA 653, leave to appeal refused, [2012]
    S.C.C.A. No. 516, on which the motion judge relied, in concluding that it was
    fair for the appellants to be called to account in Ontario. Mr. Asher is a
    lawyer in a regional law firm in India, not a lawyer who specializes in
    international business law like the lawyer in
Sincies
. Further, they say
    that the motion judge leant instinctively in favour of his own jurisdiction,
    which
Van Breda
, at para. 112, cautions against.

[62]

The motion judge instructed himself that, having
    regard to the case as a whole, he must consider and balance the broader issues
    of fairness and efficiency of a particular forum with the justice of that
    choice to the parties. He found himself unable to assess the juridical
    advantage factor, and the appellants do not fault that finding.

[63]

He concluded that overall fairness
    considerations favoured Ontario. In his view, this case was like
Sincies
because, like the lawyer in that case, the appellants
    are sophisticated legal professionals who advised Kyko, an Ontario corporate
    client, knowing that it would receive and act upon the advice in the forum. It
    would therefore be fair for the appellants to account for their conduct in
    Ontario. The motion judge held that the appellants had not shown that the High
    Court of Bombay would be a substantially less inconvenient and expensive forum.

[64]

In my view, that conclusion is reasonable. Whether
    or not Mr. Asher specialized in international business law, the appellants are
    one of Indias oldest law firms and a senior partner at that firm. As the
    motion judge found, they are sophisticated legal professionals who advised an
    Ontario corporation, and there was a good arguable case that the opinion was
    first provided to Kyko in Ontario and relied upon there. The motion judges
    analysis was rigorous and much more than an instinctive favouring of his own
    jurisdiction.

Disposition

[65]

For
    these reasons, I would dismiss the appeal, with costs to Kyko in the
    all-inclusive amount of $20,000.

Released: October 20, 2021 PR

Alexandra Hoy J.A.

I agree. Paul
    Rouleau J.A.

I agree. Thorburn
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Ilgner
    v. Box, 2021 ONCA 747

DATE: 20211020

DOCKET: M52850 (C69621)

Brown J.A. (Motion
    Judge)

In the Matter of the Estate of Juliet Pitterson-Box, deceased

BETWEEN

Audrey Ilgner, personally
    and in her capacity as Estate Trustee of the Estate of Juliet Pitterson-Box

Applicant/Moving Party

(Responding Party/Respondent)

and

Blaze
    Box
, Klay Box, Storm Box, Alburn Vidal (referred to as Alluin Didal in
    the Last Will and Testament of Juliet Pitterson-Box), Claudia Roseanne Soso and
    Nora Mazit

Respondents

(
Moving Party/
    Appellant
)

Blaze Box, acting in person

Jonathon Kappy and Stuart Clark, for the responding
    party

Heard: October 12, 2021 by video conference

ENDORSEMENT

[1]

The moving party appellant, Mr. Blaze Box, has
    filed a notice of appeal from the order made by Conway J. dated June 3, 2021
    (the Third Conway Order). Mr. Box has not yet perfected his appeal.

[2]

Mr. Box moves for an order: (i) granting him an
    extension of time until December 31, 2021 to perfect his appeal; (ii) requiring
    the estate trustee, his grandmother Audrey Ilgner, to release to him all draft
    copies of the will of his late mother, Juliet Pitterson-Box, her medical
    records and any insurance documents (the Document Requests); (iii) putting in
    place a process that would enable him to pay out his two siblings share of the
    estate from a mortgage he wishes to place on the main estate asset, a
    residential property at 352 Dupont Street, Toronto (the Property), which he
    presently occupies; and (iv) staying the Third Conway Order that ordered him to
    vacate the Property and granted leave to issue a writ of possession to the
    estate trustee in respect of the Property.

[3]

Ms. Pitterson-Box died on June 18, 2019. At the
    time of her death, she had three adult children: the appellant, Klay Box, and
    Storm Box.

[4]

The deceaseds Will dated February 12, 2019 (the
    Will) appointed her mother, Ms. Ilgner, as estate trustee. The Will provides
    for several bequests totaling $150,000, with the residue to be divided equally
    amongst the deceaseds three children.

[5]

In January 2020, Blaze and Klay Box filed a
    notice of objection in respect of the Will in which they asserted that their
    mother wanted to maintain the Property as the family home with the three
    children as beneficiaries. The siblings contended that the estate trustee was
    not acting in the best interests of the beneficiaries and asserted that the
    failure of the Will to include a bequest to one of their mothers friends
    indicated that her wishes seemed to be ignored/tampered with and/or changed
    through suspicions + questionable circumstances. The objectors did not assert
    the existence of an alternate will.

[6]

The Property is the main estate asset.

[7]

Mr. Box has resided at the Property at least
    since his mothers death. He is, in effect, treating the Property as his own,
    renting out some of the rooms and making some renovations.

[8]

By notice of application issued October 13,
    2020, the estate trustee sought various relief, including orders striking out
    the notice of objection, restraining the three children from effecting any
    capital improvements or renovations to the Property, requiring the children to
    account for any rental income they had received for the Property, and directing
    the children to provide vacant possession of the Property. Blaze and Klay Box
    filed a notice of appearance in the application.

[9]

On November 9, 2020, Conway J. made her first
    order (the First Conway Order). It directed Blaze and Klay to desist from
    further renovations and account for their dealing with the Property. Mr. Blaze
    Box did not participate in that hearing.

[10]

Mr. Box contends that he did not participate in
    many of the hearings because he was not given notice of them and was not
    properly served with court materials.  The record contradicts his assertion.
    There is no doubt that Mr. Box uses the email address to which the various
    affidavits of service state the court materials were sent. Emails from him
    dating back to April 1, 2020 attest to that fact. Mr. Box contends that during
    the pandemic he did not check his email with great frequency. Whether or not
    that is true, it does not detract from the propriety of service of various
    court materials to his email address, as well, on occasion, to the Property,
    where he lives.

[11]

No appeal was taken from the First Conway Order.

[12]

The record shows that Mr. Box ignored the First
    Conway Order. That led to the second order (the Second Conway Order) dated
    December 16, 2020, which struck out the notice of objection filed by Blaze and
    Klay without leave to amend, directed the issuance of a certificate of
    appointment of estate trustee to Ms. Ilgner, and directed Blaze and Klay to
    comply with the First Conway Order.

[13]

No appeal was taken from the Second Conway
    Order.

[14]

In late May 2021, the estate trustee moved for
    an order requiring Mr. Box to vacate the Property and seeking leave to issue a
    writ of possession. The Third Conway Order, dated June 3, 2021, ordered Mr. Box
    to vacate the Property by July 3, 2021, failing which a writ of possession
    could issue.

[15]

Mr. Box remains in the Property.

[16]

On July 7, 2021, Mr. Box filed a notice of
    appeal from the Third Conway Order.

[17]

To date, Mr. Box has not filed any materials to
    perfect his appeal, notwithstanding the courts issuance on August 16, 2021 of
    a notice of intention to dismiss for delay if the appeal was not perfected by
    September 13, 2021.

[18]

Instead, Mr. Box seeks an extension, until the
    end of this year, to perfect his appeal.

[19]

I start my consideration of his request for an
    extension with the observation that while the appellants delay in perfecting
    his appeal is not unduly long, he offers no reasonable explanation about why
    there was any delay, given that the proceeding before Conway J. in June 2021
    was a motion based on a written record. The subsequent variation of the Third
    Conway Order in September 2021 to include the Propertys legal description and
    PIN number would not prevent Mr. Box from perfecting his appeal. The record
    strongly suggests that Mr. Box believes he can live on in the estates Property
    for as long as he wishes and disregard the terms of his mothers Will and the
    efforts of his grandmother to administer the estate. His motion for an
    extension of time to perfect until the end of this year strikes me as a
    continuation of that pattern of conduct.

[20]

As to the merits of his appeal of the Third
    Conway Order, I see no meritorious grounds of appeal:
Chuang v. Royal
    College of Dental Surgeons of Ontario
(2005), 77 O.R. (3d) 280 (Div. Ct.),
    at para. 3. No appeal was taken from the Second Conway Order that struck out
    the notice of objection and directed the issuance of a certificate of
    appointment of estate trustee. Given the lack of an appeal, the Will must be
    taken as proved. Therefore, the Document Requests sought by Mr. Box are no
    longer relevant.

[21]

The Will does not grant Mr. Box a proprietary
    interest in the Property; his interest is in the residue of the estate
    following the realization of the estates assets. Accordingly, there is no
    legal basis for his position that he should be allowed to somehow take title to
    the Property, mortgage it, and pay out his siblings shares of the residue. It
    also follows that there is no legal basis for Mr. Box to remain in the
    Property, which is the estates asset.

[22]

Since the Property is the main estate asset, any
    continuing delay would prejudice the estate and the other beneficiaries of the
    estate.

[23]

In sum, the justice of the case works against
    granting the relief requested by Mr. Box. Instead, the justice of the case
    requires the administration of the estate to proceed without further efforts by
    Mr. Box to delay the estate trustee.

[24]

For those reasons, the motion is dismissed.

[25]

The respondent estate trustee is entitled to her partial indemnity
    costs of this motion fixed in the amount of $10,000.00, inclusive of
    disbursements and applicable taxes, payable out of the residuary interest of Mr.
    Blaze Box in the Estate of Juliet Pitterson-Box.

David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Eden, 2021 ONCA 733

DATE: 20211020

DOCKET: C68564

Paciocco, Nordheimer and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Brooke Eden

Appellant

Jessica Zita, for the appellant

Katie Doherty, for the respondent

Heard:  October 13, 2021 by videoconference

On appeal from the conviction entered on June 21, 2019
    and the sentence imposed on February 7, 2020 by Justice Joseph Nadel of the Ontario
    Court of Justice.

REASONS FOR DECISION

[1]

Ms. Eden appeals from her convictions for Impaired Operation Causing
    Death, Impaired Operation Causing Bodily Harm, and Failing to Remain, for which
    she received a global sentence of five years. The appellant also seeks leave to
    appeal the sentence.

[2]

The basic facts are that the appellant was operating her mothers motor
    vehicle when she collided with a vehicle ahead of her that had stopped at an
    intersection. The appellants vehicle careened off the vehicle that she hit,
    moved into the opposite lane, and struck a motorcycle heading in the opposite
    direction. The driver of the motorcycle was killed, and his passenger was
    seriously injured.

[3]

The appellant fled on foot from the accident. She was arrested a short
    time later about two kilometres from the accident. The arresting officer
    noticed the odour of alcohol on the appellants breath and that her eyes were
    bloodshot. Subsequent Intoxilyzer readings, extrapolated by an expert for the
    passage of time, put the appellants blood alcohol readings at the time of the
    accident in a range between 70 milligrams to 135 milligrams of alcohol per 100
    millilitres of blood. An analysis of information from the vehicle, that the
    appellant had been operating, established that the speed of the vehicle just before
    the accident was 113 to 114 kph. The posted speed limit on the road was 80 kph.

[4]

The appellant pled guilty to the offences. However, there was an issue
    regarding her mental health and fitness. The trial judge inquired about these
    matters at the time of the plea and was told that a fitness assessment had recently
    been conducted and that the appellant had been found to be fit. The trial judge
    was also told by the appellants counsel that he had conducted a full plea
    inquiry and that he had reviewed the agreed facts with her. The appellant then
    entered a plea of guilty to each of the three offences.

[5]

While the appellant was represented at the time of her guilty plea, by
    the time of sentencing, she had fired her lawyer and was unrepresented. The
    appellant said that she wanted to proceed with sentencing without a lawyer. The
    trial judge cautioned the appellant against proceeding without a lawyer, but
    the appellant insisted.

[6]

The trial judge explained the process to the appellant. He then heard
    the Crowns submissions on sentence and heard the victim impact statements. The
    trial judge adjourned the matter for two months so that the appellant could
    have more time to prepare her submissions.

[7]

The appellant then brought a number of motions, the significant one of
    which was a motion that appeared to seek to strike the guilty plea. The judge
    conducted a hearing on that motion, that included hearing from the appellants
    former counsel. He dismissed the motion as he did not find a basis for any
    suggestion that the plea had been involuntary or uninformed. In particular, the
    appellant asserted that she had pled guilty under duress, but the trial judge
    found that there was no evidence to support that assertion.

[8]

The matter proceeded to sentencing. After hearing submissions from the
    appellant, the judge imposed a global sentence of five years: four years on the
    impaired operation causing death conviction; one year concurrent on the impaired
    operation causing bodily harm conviction; and one year consecutive for the fail
    to remain conviction.

[9]

The appellant has failed to identify any legal error in the trial
    judges reasons for rejecting the motion to strike the guilty plea. More
    particularly, the appellant has failed to demonstrate any error in the trial
    judges conclusion that the plea was neither involuntary nor uninformed. We do
    not accept that the conduct of the appellant after the guilty plea provides any
    reliable evidence as to the appellants understanding of the events at the time
    that the guilty pleas were entered which, we would reiterate, occurred when she
    was represented and had been found fit to stand trial. Put simply, it is not
    sufficient to set aside a guilty plea on the basis that the accused has simply
    changed their mind after the fact.

[10]

In
    terms of the sentence appeal, the sentencing hearing was conducted fairly. The
    trial judge confirmed repeatedly that the appellant wished to represent herself
    and ensured that she understood the process, the law and the Crowns arguments.
    The trial judge was not required to adjourn matters, nor to appoint
amicus
.
    The sentence imposed by the trial judge was entirely warranted by the facts of
    the case and the appellants prior driving record. In terms of the complaint
    that the trial judge did not provide any
Downes
credit, that is a
    matter of discretion for the trial judge. The appellant has failed to show any
    basis for us to interfere with his exercise of that discretion. In saying that,
    we would note that the subject and terms of the bail were negotiated between
    counsel in a situation where the appellants entitlement to bail, given her
    breaches of prior bail orders, was certainly a live issue. We also note that
    the bail terms imposed did not represent the most onerous form of house arrest.

[11]

The
    conviction appeal is dismissed. While leave to appeal sentence is granted, the
    appeal is dismissed.

David M. Paciocco
    J.A.

I.V.B. Nordheimer
    J.A.

J.A. Thorburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Hevey
    v. Hevey, 2021 ONCA 740

DATE: 20211021

DOCKET: C68436

Feldman, Harvison Young and
    Thorburn JJ.A.

BETWEEN

Lynne Marie Hevey

Applicant (Appellant)

and

Charles James Hevey

Respondent (Respondent)

Gary S. Joseph and Stephen P. Kirby, for the appellant

Bryan R.G. Smith and Sarah Conlin, for the respondent

Heard: April 14, 2021 by video conference

On appeal from the order of Justice Jonathon C. George of
    the of the Superior Court of Justice, dated May 27, 2020, with reasons reported
    at 2020 ONSC 3307.

Harvison Young J.A.:

[1]

The appellant, Lynne Hevey, appeals from an order granting summary
    judgment to the respondent, Charles Hevey, dismissing her application for
    equalization and other relief. At the time of her application, the parties had
    been divorced for more than 10 years. The dispute arises out of a complex
    financial arrangement.

[2]

Ms. Hevey claimed in her application to have recently discovered that
    Mr. Hevey had misrepresented material facts and failed to make significant
    disclosure at the time of the divorce application in 2008. In particular, she
    claimed Mr. Hevey had represented to banks that his net worth was approximately
    $21 million at the same time that he stated in a sworn financial statement that
    his total assets amounted to $0. At the time, the parties did not pursue
    equalization or spousal support. In his summary judgment motion, Mr. Hevey
    relied heavily on his submission that the parties had agreed not to pursue
    either, although there was no written agreement not to pursue equalization or
    spousal support. He also argued that Ms. Heveys claim for equalization was
    barred by s. 7(3) of the
Family Law Act
, R.S.O. 1990, c. F.3 [
FLA
].

[3]

The heart of the appeal is Ms. Heveys assertion that this was not an
    appropriate case for summary judgment. For the following reasons, I would allow
    the appeal and order that the matter be remitted for trial.

A.

Background

[4]

The appellant, Ms. Hevey, and the respondent, Mr. Hevey, married in
    1980, separated in 2006, divorced in 2008, and have two adult sons. They
    negotiated the issues arising from their separation in 2008 and did not pursue
    equalization, although the surrounding circumstances form part of the subject
    of this appeal. Both parties were represented by counsel at the time.

[5]

In 2019, Ms. Hevey brought an application for equalization and spousal
    support, alleging that Mr. Hevey had misrepresented his financial circumstances
    during their negotiations.

[6]

In her application, Ms. Hevey claimed to have recently discovered the misrepresentation
    when Mr. Hevey, who is a real estate developer, sold one of the familys
    commercial properties in April 2019 for over $16 million. During the
    disposition of the property, Ms. Hevey, through her commercial counsel,
    received documents that disclosed a trust arrangement involving PMP Trust, of
    which Mr. Hevey was the sole beneficiary. Ms. Hevey then discovered the alleged
    misrepresentation: while Mr. Heveys financial statement sworn in December 2008
    indicated a net family property value of $0, he was actually worth more than
    $21 million between 2007 and May 2008, based on his disclosure to a bank.

[7]

The relevant background to the family arrangements pre-separation may be
    briefly summarized. In 1986 and 1996, two family trusts were created which held
    various assets. Ms. Hevey was the trustee of both family trusts and Mr. and Ms.
    Heveys two sons were the beneficiaries. In 2006, the assets of those family
    trusts were transferred to three new numbered companies due to the pending
    expiry of the 21-year period from the date of creation of one of the family
    trusts. There is no dispute that this was required by tax laws. The dispute
    arises from the corporate arrangements established, into which the trust assets
    were transferred.

[8]

Ms. Hevey and Mr. and Ms. Heveys two sons owned special or preferential
    shares in the three numbered companies. However, PMP Trust, of which Mr. Hevey
    was the sole beneficiary, owned the only common, or growth share, in each of
    the three numbered companies. According to Ms. Hevey, Mr. Hevey thereby was the
    beneficiary of all the family assets, except for one half interest in the
    matrimonial home. She notes that when she raised Mr. Heveys interest in PMP
    trust through counsel in July 2009, Mr. Hevey emailed her stating that her
    lawyers [
sic
] concern about PMP trust is without merit, as the one
    common share held by PMP has absolutely no value and that [t]he boys control
    the corporation. Ms. Hevey claims that she relied on Mr. Heveys
    representations about his financial situation and his representations that he
    was making all efforts to ensure she and the children benefited from the family
    assets.

[9]

In response to Ms. Heveys application for equalization and spousal
    support, Mr. Hevey brought a motion for summary judgment under r. 16 of the
Family
    Law Rules
, O. Reg. 114/99 [
FLR
], dismissing Ms. Heveys
    application. He argued that the limitation period set out in s. 7(3) of the
FLA
had long expired and that he and Ms. Hevey had agreed not to pursue
    equalization or spousal support at the time of their divorce. The test,
    summarized by this court in
Ramdial v. Davis
, 2015 ONCA 726, 68 R.F.L.
    (7th) 287, at paras. 27-31, required the motion judge to ascertain whether
    there was a genuine issue for trial. At the time Mr. Hevey brought the motion,
    he had not filed an answer to Ms. Heveys application or a financial statement
    as required by the
FLR
.

B.

Issues on Appeal

[10]

The
    issues are whether the motion judge erred by

·

allowing Mr. Heveys motion for summary judgment when Mr. Hevey
    had not served an answer as required by r. 16 of the
FLR
; and

·

misinterpreting and misapplying s. 2(8) of the
FLA
.

C.

Decision Below

[11]

The
    motion judge granted summary judgment against Ms. Hevey, dismissing her
    application. Before addressing the motion directly, he spoke to Ms. Heveys
    argument that he did not have the authority to consider the motion when Mr.
    Hevey had not yet filed an answer and financial statement as required by r.
    16(1) of the
FLR
. The motion judge referred to an endorsement from
    September 12, 2019, which stated that Mr. Hevey was not required to file an
    answer or sworn financial statement pending determination of the summary
    judgment motion. Citing Ms. Heveys counsels lack of concern with that
    endorsement and his conduct afterward, he found that the parties had agreed to
    proceed without the filing of an answer.

[12]

The
    motion judge noted that, in any event, the primary objective of the rules was
    to ensure the court can deal with cases justly and to mandate a process that is
    fair, efficient, and appropriate given the importance and complexity of the
    issues. He stated that an answer would have done little to enhance Mr. Heveys
    position and that the record was sufficient to deal with the merits of the
    motion. The motion judge was puzzled as to why Ms. Hevey, if she had procedural
    concerns before, did not raise them prior to consenting to the timetables and
    foregoing cross-examinations.

[13]

Proceeding
    to the merits of the motion, the motion judge noted that Ms. Heveys claim for
    equalization was statute-barred under s. 7(3) of the
FLA
. To revisit
    the issue of equalization, Ms. Hevey needed to satisfy the conditions under s.
    2(8) of the
FLA
, which permits the court to extend a time prescribed
    by the
FLA
if it is satisfied that there are apparent grounds for
    relief, relief is available because of delay that has been incurred in good
    faith, and no person will suffer substantial prejudice by reason of delay.

[14]

The
    test for summary judgment is whether there is a genuine issue requiring a
    trial:
Hryniak v. Mauldin
, 2014 SCC 7, [2014] 1 S.C.R. 87.

[15]

The
    motion judge considered the evidence before him, which was that the
    equalization claim was statute-barred; the parties were represented by
    experienced counsel when they decided to forego equalization; financial
    disclosure was exchanged in relation to that decision; Ms. Hevey was a savvy
    business-person and had run her own family company for years; Ms. Hevey had
    access to her own accounting and legal professionals; Ms. Hevey was directly
    involved with and had knowledge of Mr. Heveys finances and that of the trusts;
    and the correspondence from 2008-2009 during their negotiations addressed the
    issues Ms. Hevey now raised. The motion judge found no evidence of an intention
    to mislead, no evidence of fraud, and no evidence that Mr. Hevey acted in bad
    faith. He also found that the documents Ms. Hevey relied on lacked context and
    could not be fully attributed. The motion judge observed that the parties
    settled their affairs, motived by a desire for finality so that they could move
    on with their lives.

[16]

Lastly,
    the motion judge addressed the issue of spousal support. The parties made only
    limited submissions on spousal support and, in any case, those issues had been
    settled over 10 years earlier and there was no evidence of fraud. The motion
    judge concluded that there was no genuine issue requiring a trial.

D.

Discussion

[17]

For
    reasons that follow, I would allow the appeal.

[18]

As
    Iacobucci and Major J.J., writing for the majority, noted in
Housen v.
    Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235, the standard of review on a
    pure question of law is correctness: at para. 8. Questions of mixed fact and
    law, which involve applying a legal standard to a set of facts and which lie
    along a spectrum, are usually subject to the more stringent standard of
    palpable and overriding error:
Housen
,

at paras. 26, 36-37.

[19]

Here,
    the motion judge fell into reversible error by permitting the respondent to
    proceed with his summary judgment motion despite not having filed an answer to
    the appellants application as required by r. 16 of the
FLR
. In
    addition, he fell into error by misinterpreting and misapplying s. 2(8) of the
FLA
,
    which sets out the conditions to be applied by the court in considering whether
    an extension of time prescribed by the
FLA
should be granted.

(1)

Did the motion judge err by allowing the summary judgment motion to
    proceed in the absence of an answer?

[20]

Given
    the language of r. 16 of the
FLR
and the importance of disclosure in
    family law and in light of the opacity of Mr. Heveys financial arrangements,
    the motion judge made a palpable and overriding error in concluding that an
    answer was not required before proceeding with the summary judgment motion.

[21]

Summary
    judgment is governed by r. 16 of the
FLR
.

[22]

Rule
    16(1) specifically provides that summary judgment is available
after
the respondent has served an answer:

WHEN AVAILABLE

16. (1) After the
    respondent has served an answer or after the time for serving an answer has
    expired, a party may make a motion for summary judgment for a final order
    without a trial on all or part of any claim made or any defence presented in
    the case.

[23]

The appellant says that this rule is mandatory and that the appeal
    should be allowed on this basis alone. The respondent states that the
    appellants counsel did not raise any concerns about the motion judges order
    dispensing with the requirement that the respondent file an answer prior to the
    hearing of the summary judgment motion. In his reasons, the motion judge made a
    similar comment, stating that [a]s I recall it, Applicant[s] counsel did not
    object to this nor did he raise any concerns.

[24]

The
    appellants concern was, however, raised before the motion judge at the
    scheduling hearing. In response to a question from the motion judge as to
    whether granting an order dispensing with the request to file an answer before
    the summary judgment hearing would prejudice Ms. Hevey, the appellants lawyer
    stated that he was not agreeing to such an order but that it should be left to
    the judge hearing the summary judgment motion. The motion judge wrote an
    endorsement dispensing with the requirement that Mr. Hevey file an answer and
    financial statement, and the summary judgment hearing proceeded on March 6,
    2020, on that basis.

[25]

With
    respect, the motion judge erred in permitting the summary judgment motion to
    proceed to hearing in the absence of an answer and financial statement from Mr.
    Hevey.

[26]

As
    this court held in
Frick v. Frick
, 2016 ONCA 799, 132 O.R. (3d) 321,
    at para. 11, [t]he
Family Law Rules
were enacted to reflect the fact
    that litigation in family law matters is different from civil litigationThey
    embody a philosophy peculiar to a lawsuit that involves a family. Part of that
    philosophy is the recognition that [t]he most basic obligation in family law
    is the duty to disclose financial information:
Roberts v. Roberts
,
    2015 ONCA 450, 65 R.F.L. (7th) 6, at para. 11.

[27]

Here,
    the appellants position was that she had received inadequate disclosure
    initially. She put forward some evidence to substantiate her claim  in
    particular, the roughly contemporaneous $0 sworn net family property statement
    and the May 2008 bank disclosure asserting that the respondent had assets in
    excess of $21 million, which she stated she never saw until 2019.

[28]

Mr.
    Hevey insists that, as a sophisticated business woman who ran her own business,
    had been a trustee of the trusts, and was a preferential non-voting shareholder
    in one of the companies, Ms. Hevey understood exactly how his financial affairs
    were managed and what his interests were at the time. He says she also knew
    that his net worth vacillated as he bought and sold properties, and, in
    addition, that times were especially bad in December 2008 following the
    financial crash in the fall of 2008.

[29]

In
    my view, and without deciding whether an answer is always needed, an answer was
    needed here as required by the rules. Specifically, the answer would have been
    accompanied by a new sworn financial statement upon which Mr. Hevey could have
    been cross-examined. Cross-examinations, particularly about the nature of the respondents
    interest in the PNP trust could in fact be very helpful in this case. In their
    absence, the respondents affidavits could rely upon the complexity of the corporate
    arrangements and the PNP trust to skirt what might be, and might have been, a
    significant beneficial interest. For example, a cross examination on a
    financial statement might include a question such as Despite not being a
    shareholder, have you received any benefit in any form from the trust, which
    holds your common shares in the corporations? At the same time, the motion
    judge may have been inferring from the fact that neither party sought to
    cross-examine the other on the sworn affidavits that were in evidence that
    there would also not have been cross-examinations on a sworn financial
    statement.

[30]

The
    requirement for both parties to provide financial statements at the outset is
    closely related to the importance of disclosure in family law proceedings, a
    particularly salient principle in the present case. This court has repeatedly
    emphasized this point in recent years, and it has been recently emphasized in
    the Supreme Court of Canada decision in
Colucci v. Colucci
, 2021 SCC
    24, 458 D.L.R. (4th) 183
.

[31]

While
    the respondent argues that the appellant waived equalization, the record
    suggests that she merely did not pursue it at that time. There was no written
    waiver or domestic contract. In support of his argument that the appellant was
    sophisticated, knew all the arrangements, and had access to all the financial
    information, the respondent provided a letter. This letter dated December 17,
    2008, from his lawyer Donald Kilpatrick to Ms. Heveys lawyer, sets out the
    general structure of the family assets and the roll-over of the trust assets to
    the three numbered companies. It also mentions that Mr. Hevey was not a
    shareholder of any of the companies, going on to state that PNP trust did own a
    common share in each one and that Mr. Hevey is the beneficiary of the PNP
    trust.

[32]

The
    evidence about what Ms. Hevey understood about the new corporate structure into
    which the trust assets were moved is very conflicting. Mr. Hevey states that
    she had open access to Brian Chapman, the commercial lawyer who made the
    arrangements. Ms. Hevey states that at one point Mr. Hevey called her and said,
    I dont have anything but if you dont believe me then talk to Brian Chapman.
    She also states that she never had independent legal advice on these issues and
    that Mr. Chapman was effectively Mr. Heveys own commercial lawyer. She also
    points to other contemporary correspondence she learned about later suggesting
    that while Mr. Hevey was being kept out of the limelight, he was retaining
    the control of the companies.

[33]

Against
    this backdrop is the May 2008 statement to a bank in which Mr. Hevey disclosed
    assets of approximately $21 million. There may well be good explanations for
    the disparity between this amount, the $0 amount on his December 2008 financial
    statement, and the fact that he did not disclose any beneficial interest in PNP
    or any other corporate interests. In the absence of an answer and sworn
    financial statement, Ms. Hevey was at a significant disadvantage in the course
    of this summary judgment motion where she was required to put her best foot
    forward.

[34]

Suggesting
    that she could have cross-examined Mr. Hevey misses the mark. It is up to the
    party with the assets to make the disclosure and the valuation of assets.
    According to the Ontario family law regime, and as already stated, financial
    disclosure is a paramount consideration. That also applies to a summary
    judgment motion such as this one. Moreover, it is not up to the claimant to
    ferret out information, as the appellant put it, about income and assets from
    the other party
.
Although, in
Colucci
, the Supreme Court was
    dealing with retroactive child support, the same imperatives apply when dealing
    with issues of retroactive spousal support, namely that courts must encourage
    proactive financial disclosure and in no way reward those who improperly
    withhold, hide or misrepresent information they ought to have shared: at para.
    54.

[35]

There
    is nothing in the record that presents any valuation of the common shares of
    any of the companies at the time of Mr. Heveys December 2008 financial
    statement. Nor is there anything in his financial statement that disclosed his
    beneficial interest in the three companies.

[36]

A
    continuing theme in Mr. Kilpatricks letter was that the respondent was
    considering claiming equalization and spousal support from the appellant. This
    suggests that her understanding at the time was that Mr. Hevey had little or
    nothing in the way of assets and that she decided to not pursue any claims to
    pre-empt him from claiming anything from her. There is nothing in the record to
    indicate that Mr. Hevey had produced any valuation of his beneficial interest
    in the PNP trust at the time. Ms. Heveys evidence is that he had not, and that
    she did not understand the nature of his interests in the companies.

[37]

In
    short, in my view, the motion judge fell into palpable and overriding error in
    dispensing with the requirement that the respondent file an answer and
    financial statement, as required by r. 16 of the
FLR
, before
    proceeding with a summary judgment motion in these circumstances.

(2)

Did the motion judge err in interpreting and applying s. 2(8) of the
FLA
?

[38]

The
    motion judge reasoned that summary judgment was available to dismiss the
    appellants claims largely because the limitation period for equalization
    claims set in the
FLA
had long expired.

[39]

Section
    2(8) of the
FLA
provides:

The court may, on motion, extend a time prescribed by
    this Act if it is satisfied that,

(a) there are apparent grounds for relief;

(b) relief is unavailable because of delay that has
    been incurred in good faith; and

(c) no person will
    suffer substantial prejudice by reason of the delay.

[40]

Each
    of the requirements must be met as a pre-condition to granting the relief:
Vivier
    v. Vivier
, 5 R.F.L. (3d) 450 (Ont. Dist. Ct.). The relief is not the
    extension of time but the relief claimed under the
FLA
such as
    equalization:
Scherer v. Scherer
(2002), 59 O.R. (3d) 393 (Ont. C.A.),
    at para. 16. In determining whether apparent grounds for relief exist, the
    court may make a limited inquiry into the merits of the proposed claim. The
    question to be answered is [b]ut for the limitation period that acts as a bar,
    are there apparent grounds to support the claim?: see
Werth v. Werth
,
    2004 ONCJ 43, at para. 14. The relief must be unavailable because of a delay
    that has been incurred in good faith. The good faith requirement requires the
    applicant for an extension to show that they acted honestly and with no
    ulterior motive:
Hart v. Hart
(1990), 27 R.F.L. (3d) 419 (Ont.
    U.F.C.), at p. 432. Lastly, it must be demonstrated that no person will suffer
    substantial prejudice by reason of the delay. The mere showing of prejudice is
    not sufficient; rather, it must be demonstrated that the prejudice will be
    substantial. Generally, the length of time occasioned by the delay is a factor,
    along with the extent to which the responding party has rearranged their
    financial affairs: see e.g.,
Douthwaite v. Douthwaite
(1997), 32
    R.F.L. (4th) 90 (Ont. Gen. Div.).

[41]

With
    respect, the motion judges reasons do not interpret and apply s. 2(8) of the
FLA
correctly.

[42]

First,
    the motion judge erred in his interpretation of s. 2(8)(b), which refers to the
    delay incurred in good faith. This clearly refers to the delay occasioned by
    the party claiming the extension:
Hart
, at p. 432. However, the motion
    judge appears to have focussed on whether the appellant had established fraud
    on the part of the respondent. At para. 10, he notes:

More than that, however, [namely,
    the fact that she was at the relevant time, in the loop so to speak and kept
    up to speed on all issues relating to the trusts] while recognizing that
    limitation periods can be extended and that
an established fraud would
    indeed allow one to revisit these issues
.[Emphasis added].

[43]

This
    articulation holds the appellant up to a higher standard for revisiting the
    limitation period than s. 2(8) sets out. Specifically, while s. 2(8) only
    requires apparent grounds for relief, unavailability of relief because of delay
    that has been incurred in good faith, and no substantial prejudice, the motion
    judges statement at para. 10 suggests that he was holding the appellant to a
    standard of established fraud before revisiting the limitation period
    question. There is no authority to support that interpretation, and it is not
    consistent with the clear wording of the provision.

[44]

Second,
    the motion judge fell into palpable and overriding error in inferring that Ms.
    Hevey knew or ought to have known all information about the trusts and the
    corporations.

[45]

The
    appellants evidence explaining the delay is that she began her claim after
    receiving information in 2019 indicating that the respondent had been in a much
    stronger financial position in the period leading up to the application for
    divorce than he had led her to believe. If true, this explains her delay. As I
    have indicated earlier in these reasons, the appellant was not in a position to
    put her best foot forward in the summary judgment motion because Mr. Hevey
    had not filed an answer and financial statement.

[46]

A
    related concern is the motion judges inference, as argued by the respondent
    both below and in this court, that because the appellant had book-keeping
    experience and access to some (though not all) of the trust information, she
    understood the complexity and consequences of the corporate and trust
    arrangements. In my view, it was unfair to infer that the appellant did
    understand all this at the time. She does not appear to have received
    independent legal advice concerning the structure of the new corporations and
    the PNP trust, although she was represented by an experienced family lawyer.
    Again, given the absence of a clear written agreement between the parties, the
    record before this court might have supported the inference that she did not
    understand the arrangements, whether as a result of a lack of disclosure,
    misrepresentation, or other factors. As already mentioned, the record includes
    the letter from Mr. Kilpatrick referred to above clearly indicating that Mr.
    Hevey was considering claiming spousal support and equalization from Ms. Hevey
    as well as the evidence of the discrepancy between the $0 on the respondents net
    family property statement and the bank statement earlier in 2008 that his net
    worth was $21 million.

[47]

These
    determinations relate both to the explanation for Mr. Heveys delay and to her
    good faith and could not be made on a summary judgment motion, at least in the
    absence of an answer by the respondent, which undermined her ability to put her
    best foot forward.

[48]

Finally,
    this was not simply a claim for equalization but also a claim for spousal
    support which is not subject to the same limitation period. There is no
    discussion of this point. It may well be that Ms. Heveys claim for spousal
    support would not be strong. That said, the circumstances of disclosure in
    December 2008 and the question as to whether the respondent did mislead the
    appellant are material issues that would be very relevant to whether Ms. Hevey
    could have been entitled to spousal support. That could not be determined in
    this summary judgment motion.

E.

Disposition

[49]

For
    the foregoing reasons, I would allow the appeal and remit the matter to trial,
    without prejudice to the right of the parties to bring a fresh motion for
    summary judgment in accordance with these reasons. Costs are payable by the
    respondent to the appellant for this appeal in the amount of $15,000.

Released: October 21, 2021 K.F.

Harvison Young J.A.

I agree. K. Feldman
    J.A.

I agree. Thorburn
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Robertson (Re), 2021 ONCA 737

DATE: 20211021

DOCKET: C69116

Paciocco, Nordheimer and Thorburn JJ.A.

IN THE MATTER OF: James Robertson

AN APPEAL UNDER PART XX.1 OF THE
CODE

James Robertson, acting in person

Mercedes Perez, appearing as
amicus curiae

Molly Flanagan, for the respondent, Attorney General of
    Ontario

James P. Thomson and Julia Lefebvre, for the respondent,
    Person in Charge of Waypoint Centre for Mental Health Care

Heard: October 15, 2021 by video conference

On appeal from the disposition of the Ontario Review
    Board, dated October 22, 2020, with reasons dated November 13, 2020.

REASONS FOR DECISION

[1]

Mr. Robertson appeals from the disposition of the Ontario Review Board
    that continued the detention order against him. The appellant submits that the
    Board erred in not awarding an absolute discharge. In the alternative, the
    appellant submits that the Board erred in not allowing him to transfer to a
    less secure psychiatric facility. For the following reasons, the appeal is
    dismissed.

[2]

The appellant has been under the auspices of the Board since October 2007
    when he was found not criminally responsible (NCR) with respect to offences
    of criminal harassment and invitation to sexual touching.

[3]

At this most recent review, the Board found that the appellant continues
    to pose a significant threat to the safety of the public. There was a solid
    evidentiary foundation for that conclusion. Indeed, all of the expert evidence
    before the Board supported that conclusion. Given this solid evidentiary
    foundation, it was reasonable for the Board to have concluded that the appellant
    remains a significant threat to the safety of the public. This is sufficient to
    dispose of the request for an absolute discharge.

[4]

The Board heard from the appellants attending physician. It is fair to
    say that, while the concerns regarding the conduct of the appellant were
    originally based in inappropriate sexual contact, those concerns have largely
    ameliorated as the appellant has grown older. The appellant is currently
    sixty-six years old. However, concerns regarding the appellants generally aggressive
    and threatening behaviour continue. The appellants psychiatrist testified
    before the Board that, as recently as the weekend before, the appellant had
    threatened staff.

[5]

The Board also heard from Dr. Phillip Klassen, who had been retained to
    provide an independent psychiatric assessment. Dr. Klassens assessment was
    limited, however, as the appellant refused to meet with him. Nevertheless,
    based on a review of the appellants history, Dr. Klassen agreed that the
    appellant continues to pose a significant threat. Dr. Klassen assessed the
    appellant as having a high risk of general/violent recidivism. Of importance to
    the appellants request to transfer to a less secure psychiatric facility, Dr.
    Klassen said that, given the appellants past conduct, especially his conduct
    towards females, it made sense for the appellant to remain on an all-male unit.
    That requirement restricts the psychiatric facilities to which the appellant
    could be transferred as not all such facilities have all-male units.

[6]

Dr. Klassen also noted that he was unable to determine to what degree
    the appellants ongoing aggressive conduct is related to his unhappiness with
    being at Waypoint, as opposed to his high score on the appraisal test for
    recidivism. The appellant views his continued detention at Waypoint as being an
    injustice.

[7]

The Board concluded that this was not the appropriate time to consider
    allowing the appellant to transfer to a less secure psychiatric facility. In
    particular, the Board declined to allow the appellant to transfer to the two
    facilities that he proposed because neither of those facilities has an all-male
    unit.

[8]

The Board acknowledged the positive strides that the appellant had made
    in the last year. However, the Board concluded that the appellant should remain
    at Waypoint to determine if those positive strides will continue. The Board
    appears to be alert to the concerns that arise from the appellants continued
    detention at Waypoint as a high security facility and also appears to be open
    to a transfer to a less secure facility, in the future, if the appellant
    continues to improve.

[9]

Given the evidence, and the ongoing conduct of the appellant, the
    Boards conclusion was a reasonable one. It is entitled to deference from this
    court. We have no basis to interfere with it, especially since the Board is alive
    to the concerns about the appellants continued detention at Waypoint and to
    the possibility of a transfer in the future. Also, the appellants increasing
    age will be a factor in determining whether his aggressive behaviour remains a
    concern.

[10]

Before
    concluding, we address two other points. One is the appellants reliance on the
Universal Declaration of Human Rights
, G.A. Res. 217 A (III), U.N.
    Doc. A/810, at 71 (1948), s. 5, s. 8 and the oath of Queen Elizabeth II. As
    important as these documents are, the principles they describe do not govern
    this appeal. The provisions of Part XX.1 of the
Criminal Code
set out
    the law that must be applied, and the Board decision properly applies those
    provisions. Nor has the appellant satisfied us that any provisions of the
Canadian
    Charter of Rights and Freedoms
have been violated.

[11]

The
    other is the attempt by the appellant to file what he called fresh evidence. While
    we have looked at the material that the appellant filed in this regard, we have
    not considered that material in coming to our conclusion. The will say
    statements set out in that material are not evidence. They are hearsay. The
    appellants last-minute request to have unidentified witnesses testify for the
    first time on appeal came too late. More importantly, the issue before us
    relates to the reasonableness of the Boards decision. The reasonableness of that
    decision must be judged based on the evidence that was before the Board at the
    time. Therefore, the material offered does not satisfy the well-established requirements
    for admission as fresh evidence:
Palmer v. The Queen
, [1980] 1 S.C.R.
    759.

[12]

The
    appeal is dismissed.

David M. Paciocco
    J.A.

I.V.B. Nordheimer
    J.A.

J.A. Thorburn J.A.