COURT OF APPEAL FOR ONTARIO

CITATION: Cadieux v. Cloutier, 2019 ONCA 241

DATE: 20190327

DOCKET: C63160

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

BETWEEN

Chad Cadieux, by his Litigation Guardian Michael
    Cadieux,
Michael Cadieux and Lance Cadieux

Plaintiffs
(Respondents/Appellants by way of cross-appeal)

and

Susan Cloutier, Pilot Insurance Company,
Eric
    Saywell
and the Wawanesa Mutual Insurance Company

Defendants

(Appellant/Respondent by way of cross-appeal)

David A. Zuber and Joshua J.A. Henderson, for the
    appellant/respondent by way of cross-appeal Eric Saywell

Allan Rouben and Éliane Lachaîne, for the respondents/appellants
    by way of cross-appeal

Kristian Bonn, for the intervener Ontario Trial Lawyers
    Association

Heard: May 1-2, 2018

On appeal from the judgments of Justice Charles T.
    Hackland of the Superior Court of Justice, sitting with a jury, dated December
    12, 2016 and December 23, 2016, with reasons reported at 2016 ONSC 7604, 63
    C.C.L.I. (5th) 79.

SUPPLEMENTARY REASONS

[1]

In
    reasons released December 4, 2018, this court allowed the appellants (defendants)
    appeal in part and the respondents (plaintiffs) appeal in part and requested
    further written submissions on certain issues. We have now received those
    submissions and these are our reasons concerning those issues.

[2]

The
    additional issues are as follows:

(a)

Whether,
    having regard to all the circumstances, it is appropriate for the appellant to
    pay some part of the legal costs incurred by the respondent in recovering
    Statutory Accident Benefits (SABs) as costs of this proceeding and, if so, how
    much [para. 135 and para. 150.3];

(b)

Whether, having regard to all the circumstances, it is appropriate that
    the court exercise discretion under s. 130 of the
Courts of Justice Act
(CJA) to award prejudgment interest at a rate other than the default rate
    prescribed by s. 128 of the CJA [para. 145, para. 150.6];

(c)

The costs in the court below, having regard to the judgment of this
    court [para. 146]; and

(d)

The costs of the appeal.

[3]

In
    his written submissions on these issues, the appellant also submits that: the
    management fee and out-of-pocket expenses awarded by the trial judge should
    be characterized as an award for health care.

[4]

The
    resolution of the outstanding issues, particularly as regards costs in the
    court below and in this court, must have regard to context.

[5]

The respondent,
    a minor, was involved in an altercation with the appellant, also a minor, who
    pushed him onto a roadway into the path of an oncoming truck. The respondent
    suffered a fractured skull, brain injuries and orthopaedic injuries. He became
    incapable of managing his own affairs and will require lifetime financial and
    medical support.

[6]

The respondent
    settled with the insurer of the truck driver and with his own SABs insurer. He
    pursued the appellant to trial for his several liability.

[7]

The
    case was vigorously contested by the appellants insurer. The trial lasted
    seven (7) weeks. At the end of the day, the jury granted judgment in favour of
    the respondent in the amount of approximately $2.3 million. However, it found
    each of the appellant, the truck driver and the respondent one-third
    responsible for the respondents injuries. As a result of the contributory negligence
    finding against the respondent, and the settlement with the truck driver, the respondent
    was only entitled to recover one-third of his damages.

[8]

Following
    the trial, the trial judge was required to make certain deductions from and
    adjustments to the damages. This resulted in further deductions from the jury
    award, largely for: (a) statutory deductions under the
Family Law Act
;
    and (b) the impact of the SABs settlement. After the deductions and the addition
    of a management fee, the result was a damage award for the plaintiff of
    $500,827.

[9]

The
    appeal to this court was from the trial judges post-trial disposition of these
    issues.

[10]

We now turn to the
    issues identified above.

(a)

Respondents costs in recovering SABs

[11]

At para. 130 of this
    courts reasons, we noted that the tort defendant should not be required to
    pay the costs of the plaintiffs pursuit of SABs as a general principle or as a
    matter of course. We set out, at para 132, a number of factors that a trial
    judge might consider in determining whether to award such costs and, if so, the
    amount to be included. We invited the parties to make submissions as to how
    these factors applied on the facts of this case.

[12]

Neither party made a
    serious effort to address this issue in their written submissions. The
    appellant took the position that no payment should be made for costs because
    the SABs settlement was all-inclusive. The respondent has proposed the purely
    arbitrary amount of $95,325.79. This is based on the court-approved gross fees
    charged by the respondents solicitor for the SABs settlement and the
    settlement with the truck driver ($296,549.36) multiplied by the proportion
    that the SABs settlement ($900,000) bore to the total settlement ($1.4
    million), namely 64.3%, divided by two to account for the appellants
    proportionate share of liability.

[13]

The only reason
    advanced by the respondent for the award of such costs is that the appellant
    has received a substantial benefit from the SABs settlement because it reduces
    the net amount he is required to pay the respondent  an observation that will
    apply in any case. The respondent has not addressed most of the factors identified
    in this courts reasons, particularly whether the SABs settlement was the
    result of particular risk, effort or expense or whether, to use the vernacular,
    it was a slam dunk.

[14]

It was within the
    knowledge and ability of the respondent to address the issues identified by the
    court. He has failed to do so and we are not persuaded that the circumstances
    of this case call for an award of costs under this head.

(b)

The rate of prejudgment interest

[15]

The appellant submits
    that the default rate of 3.3% per annum should apply. The respondent does not
    dispute this. In the circumstances, there is no basis to award anything other
    than the default rate.

(c)

The costs of trial

[16]

Prior to trial, the respondent
    offered to settle for the sum of $900,000, plus costs, disbursements and HST. The
    appellant made a Rule 49 offer to settle for $500,000, plus partial indemnity
    costs.

[17]

The respondent
    advanced a claim for partial indemnity costs of the entire proceeding in an
    amount of nearly $600,000. The trial judge considered this amount reasonable
    for a complex seven-week jury trial. The appellant argued that his near miss
    offer should be taken into account in the award of the costs of trial and
    claimed partial indemnity costs from the date of his offer of approximately
    $420,000. The trial judge considered this amount reasonable as well.

[18]

The trial judge
    considered r. 49.10(2) with respect to the costs consequences of a plaintiff
    not accepting a defendants offer to settle, which is more favourable than the
    judgment: unless the court otherwise orders, the plaintiff is entitled to
    partial indemnity costs to the date the offer was served and the defendant is
    entitled to partial indemnity costs from that date. He also considered the
    near miss line of cases dealing with settlement offers that were close to,
    but less than, the judgment. In particular, he mentioned this courts decision
Elbakhiet
    v. Palmer
, 2014 ONCA 544, referring to r. 49.13, which provides that the
    court, in exercising its discretion with respect to costs, may take into
    account any offer to settle made in writing, the date the offer was made and
    the terms of the offer.

[19]

With these principles
    in mind, the trial judge awarded the respondent costs of $100,000 plus HST and
    disbursements of $98,798, a very significant reduction of the costs claimed and
    clearly giving significant effect to the appellants near miss offer.

[20]

The outcome of the
    appeal is that when statutory deductions and deductions for SABs are taken into
    account, the respondents net recovery is somewhere between $340,000 and
    $378,000, depending on which partys calculations are accepted. The result is
    that the appellants offer was not a near miss. It was more favourable than
    the respondents recovery. The costs consequences of r. 49.10(2) apply, unless
    the court otherwise orders.

[21]

In determining costs,
    we must also have regard to the general principles set out in r. 57.01,
    including the amount claimed and recovered, the importance of the issues and the
    overriding principle of proportionality. We also have regard to the principles
    expressed by the trial judge, at para. 64 of his reasons:

It must be remembered that costs are discretionary with the
    Court and in addition to the goal of promoting settlement (Rule 49), there are
    the goals of fairness to the parties, promoting access to justice and, in the
    context of personal injury cases, ensuring that an injured plaintiff is not
    undercompensated (nor over-compensated).

[22]

We begin with
    proportionality. The parties engaged in a lengthy legal dispute, and a
    seven-week jury trial, and
each
incurred, at least
    on paper, costs of about half a million dollars to claim, and defend, a net judgment
    of around $400,000. On the face of it, the costs claimed by both parties are
    disproportionate to the result.

[23]

Second, access to
    justice, fairness and fair compensation. The respondent suffered serious,
    permanent and disabling injuries. While the jury found that he bore some of the
    responsibility, and while he received no-fault SABs and a settlement from one
    of the parties, his total net compensation did not, in our view, result in
    overcompensation. The outcome of the proceeding was clearly not what he and his
    lawyer expected when he offered to settle for $900,000, plus costs,
    disbursements and taxes.

[24]

Third, the real issue.
    This appeal, which resulted in the reduction of the net judgment, was not about
    the jury award or the conduct of the trial. The appellant did not challenge the
    award. He challenged the method of deducting SABs from the jurys award. As we
    pointed out in our reasons, this was a complicated and uncertain area of the
    law. For the appellants insurer, as we were reminded at the hearing, the issue
    was an important one. Indeed, it was important to the insurance industry and
    for lawyers representing plaintiffs and defendants and, of course, for their
    clients. So while the swing in the judgment as a result of the appeal meant a
    great deal to the respondent in terms of dollars and cents, the outcome was
    significant for the appellant in more than its immediate financial
    consequences. The appeal established principles and practices that have important
    effects beyond this particular case.

[25]

Having regard to these
    factors, we would follow the approach originally taken by the trial judge in
    his post-trial ruling (before additional adjustments were made), namely,
    notionally setting off the costs incurred by the plaintiff [respondent] prior
    to the date of the defendants [appellants] offer to settle and the costs
    incurred by the defendant from the date of his offer to settle forward,
    including preparation for trial and trial costs. The result is that neither
    party is entitled to costs.

(d)

The costs of appeal

[26]

Having regard to the
    fact that the appellant was substantially the successful party on the appeal,
    and to the other factors identified in these reasons, the appellant is entitled
    to costs of the appeal fixed at $25,000, inclusive of disbursements and all
    applicable taxes.

(e)

Deductibility of management fee and out-of-pocket expenses

[27]

These issues were
    apparently not raised with the trial judge and they were not directly addressed
    by the parties on the appeal.

[28]

In the interests of
    efficiency, we will address the management fee. In our view, the management fee
    was as awarded by the trial judge properly applied to the plaintiffs
net
recovery and does not itself give rise to a further
    deduction.

[29]

The respondents
    submissions do not refer to the out-of-pocket expenses. We hope the matter has
    been resolved. If it has not been, we expect the parties to make reasonable and
    good faith efforts to do so. The amounts are not large and no issue of
    principle is involved.

G.R. Strathy C.J.O.

Alexandra Hoy A.C.J.O.

K. Feldman J.A.

David Brown J.A.

David M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Caja Paraguaya De Jubilaciones v. Obregon, 2019
    ONCA 198

DATE: 20190311

DOCKET: M50127 (C66070)

Nordheimer J.A. (In Chambers)

BETWEEN

Caja Paraguaya De Jubilaciones y Pensiones Del
    Personal De Itaipu Binacional

Respondent (Respondent)

and

Eduardo Garcia Obregon a.k.a. Eduardo Garcia
    a.k.a. Eddie Obregon, Claudia Patricia Garcia a.k.a. Patricia Garcia a.k.a.
    Claudia Patricia De Garcia a.k.a. Claudia Santisteban, Ligia Ponciano, Managed
    (Portfolio), corp., Genesis (la), corp. (Ontario Corporation Number 1653094, Genesis
    (la), corp. (Alberta Corporate Access Number 2013145921), FC int, corp., First
    Canadian int, corp.,
Union Securities Limited, Scott Colwell, Marty
    Hibbs, Hibbs Enterprises ltd., Columbus Capital Corporation, Antonio Duscio, Leanne
    Duscio, Leanne Duscio carrying on business as the Queen St. Conservatory, Catan
    Canada Inc., Vijay Paul, Greg Baker, Bradley F. Breen, Lou Maraj, 2138003 Ontario
    Inc., Mackie Research Capital Corporation, First Canadian Capital Markets ltd.,
    First Canadian Capital corp., FC Financial Private Wealth Group Inc., Jason C.
    Monaco, Daniel Boase, Paolo Abate, Nikolaos Sylianos Tsimids, Genesis Land Development
    Corporation, Limited Partnership Land Pool (2007), and GP LPLP 2007 Inc.

Applicants
(
Appellants
)

David Milosevic, for the applicants

Jacqueline King, for the respondent

Christopher Feeman, for Union Securities Limited

Heard: March 8, 2019

ENDORSEMENT

[1]

The applicants seek an order permitting them access to certain funds for
    the purpose of funding past and future legal fees. The respondent opposes the
    request on the basis, in essence, that any monies used by the applicants to
    fund their legal fees are monies that will not be available to the respondent
    to satisfy the judgment that it has against the applicants. Union Securities
    joins in the respondents opposition to this motion.

[2]

The applicants are appealing the trial judgment of Dunphy J. He found
    that the applicants had engaged in fraudulent conduct and ordered them to pay just
    over $20 million to the respondent. Union Securities also obtained judgment on
    a crossclaim but for a much smaller amount. No appeal has been taken from the
    Union Securities judgment.

[3]

In addition to awarding judgment in favour of the respondent, the trial
    judge also made an order that restrained the applicants from selling,
    removing, dissipating, alienating, transferring, assigning, encumbering or
    dealing with any assets, whether solely or jointed owned, wherever situated in
    the world . This order would, consequently, deny the applicants access to any
    and all of their funds or assets that could be used to fund their appeal.

[4]

The applicants first brought this motion before the trial judge. He
    dismissed the motion: see
Caja Paraguaya De Jubilaciones Y Del Personal De
    Itaipu Binacional v. Garcia
, 2018 ONSC 6569. In doing so, the trial judge
    applied the four-part test outlined in
Canadian Imperial Bank of Commerce
    v. Credit Valley Institute of Business & Technology
, [2003] O.J. No.
    40 (S.C.J.), at para. 26, namely:

(i) Has the defendant established on the evidence that he has
    no other assets available to pay his expenses other than those frozen by the
    injunction?

(ii) If so, has the defendant shown on the evidence that there
    are assets caught by the injunction that are from a source other than the
    plaintiff, i.e. assets that are subject to a
Mareva
injunction, but
    not a proprietary claim?

(iii) The defendant is entitled to the use of non-proprietary
    assets frozen by the
Mareva
injunction to pay his reasonable living
    expenses, debts and legal costs. Those assets must be exhausted before the
    defendant is entitled to look to the assets subject to the proprietary claim.

(iv) If the defendant has met the previous three tests and
    still requires funds for legitimate living expenses and to fund his defence,
    the court must balance the competing interests of the plaintiff in not
    permitting the defendant to use the plaintiff's money for his own purposes and
    of the defendant in ensuring that he has a proper opportunity to present his
    defence before assets in his name are removed from him without a trial. In
    weighing the interests of the parties, it is relevant for the court to consider
    the strength of the plaintiff's case, as well as the extent to which the
    defendant has put forward an arguable case to rebut the plaintiff's claim.

[5]

The trial judge ultimately dismissed the applicants motion, but did so
    without prejudice to the applicants bringing a motion for similar relief before
    this court. He found, on the first test, that the applicants had access to
    other sources of funds that were not subject to his non-dissipation order. On
    the fourth test, the trial judge concluded that he would not exercise his
    discretion to permit the applicants to have access to any funds.

[6]

Before me, the respondent submits that the
Credit Valley
test
    does not apply because it concerned a variation to a pre-trial
Mareva
injunction whereas, in this case, the relevant order is a post-trial
    non-dissipation order. That distinction does not accord with this courts
    decision in
Waxman v. Waxman,
2007 ONCA 326, 223 O.A.C. 375 which adopted
    essentially the same test in considering a similar request in the context of an
    appeal from a post-judgment order.

[7]

In my view, the first test is met. I reach that conclusion based on the
    plain wording of the non-dissipation order that the trial judge made. It is
    about as broad an order as could be envisaged. It covers all of the applicants
    assets with the result that even if, as the respondent contends, there are
    other assets under the ownership or control of the applicants (e.g. a house in
    Guatemala), those assets would also be subject to the order.

[8]

In terms of the second test, there was an express finding by the trial
    judge that $143,000 of the down payment made on the family home in Kitchener were
    monies to which the respondent has not established a proprietary claim.

[9]

In terms of the third test, because of the broadly worded
    non-dissipation order, the applicants do not have access to the $143,000. It is
    these monies to which the applicants seek access precisely because the
    respondent has no proprietary claim to them.

[10]

In
    terms of the fourth test, I do not intend to embark on a detailed analysis of
    the merits of the applicants appeal. It is sufficient to say that I do not
    agree with the respondent that the appeal is devoid of merit. It is generally
    recognized that the test for the merits of an appeal, on this form of
    preliminary pre-appeal motion, establishes a very low bar. As Doherty J.A. said,
    albeit in a different context, in
R. v. Bernardo
(1997), 105 O.A.C.
    244, 121 C.C.C. (3d) 123 (C.A.), at para. 22:

The merits inquiry should not, however, go any further than a
    determination of whether the appeal is an arguable one.

[11]

I
    am satisfied that, in this case, there are arguable grounds of appeal. I would
    add that any suggestion that Mr. Garcia could argue this case, on his own,
    fails to recognize the complexity of this case and the nature of some of the
    arguments to be made, including corporate identity and limitations issues. A
    party has the right to meaningfully participate in their appeal. In this case,
    meaningful participation cannot be achieved with the applicants unrepresented.

[12]

In
    the end result, the applicants have a right to appeal the trial judgment. The
    applicants need access to some monies to pay counsel for that purpose. As the
    trial judge found, the respondent has no proprietary claim to the monies from
    the down payment on the home (which is in the process of being sold). The
    respondents only claim to those monies is as a judgment creditor. The same is
    true with respect to any claim by Union Securities, as a judgment creditor, to
    those monies. In my view, those claims must take second place to the need of
    the applicants to fund their reasonable legal expenses relating to their right
    of appeal.

[13]

All
    of that said, I am not satisfied that the applicants need access to the entire
    $143,000. That is an amount that would exceed what would be reasonable fees to
    be incurred for this appeal. I would add that the applicants are not entitled
    to access to these funds to pay for past legal fees. In terms of past legal
    fees, the lawyers stand in the same position as the respondent and Union
    Securities. The lawyers would be, at most, execution creditors if they pursued
    their clients for the payment of those fees.

[14]

In
    the end, I grant an order permitting the applicants to have access to $100,000
    of the proceeds of the sale of the house in order to fund their reasonable
    legal fees for the appeal. These monies are to be paid directly to the applicants
    lawyers, Milosevic Fiske LLP, and are to be held by those lawyers in trust.
    These monies are only to be used to fund the reasonable costs of the
    applicants appeal, including the costs of obtaining the trial transcripts. The
    applicants lawyers are to account for the expenditure of these funds by
    providing to counsel for the respondent, and counsel for Union Securities, accounts
    for the fees charged, including details of the work done in support of those
    fees, summarized in a fashion that does not reveal any privileged material.

[15]

I
    should note, before concluding, that the applicants have given a clear and
    unequivocal undertaking that they will not seek any further monies for the
    purposes of their appeal.

[16]

There
    will be no order as to the costs of this motion.

I.V.B. Nordheimer
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Chisholm v. Bell Canada, 2019 ONCA 176

DATE: 20190305

DOCKET: C65572

Simmons, Tulloch and Brown JJ.A.

BETWEEN

Sonia Chisholm

Plaintiff (Appellant)

and

Bell Canada

Defendant (Respondent)

Sonia Chisholm, in person

Lisa Alleyne, for the respondent

Heard and released orally: March 1, 2019

On appeal from the
    order of Justice Heather McArthur of the Superior Court dated May 10, 2018.

REASONS FOR DECISION

[1]

The appellant appeals from an order refusing her request to reinstate an
    action that was dismissed for delay.

[2]

In February 2011 the appellant commenced an action against the
    respondent claiming $4,000,000 in damages on account of the respondents
    refusal to provide her with telephone and other services. Through inadvertence
    the respondent failed to file a defence. In June 2011, the registrar declined
    to sign default judgment and directed the appellant to move for judgment before
    a judge. The appellant failed to bring a motion for judgment. On October 12,
    2011, the action was dismissed for delay.

[3]

Although the motion judge accepted the appellants claim that she (the
    appellant) did not find out about the dismissal until January of 2018, the
    motion judge declined to reinstate the appellants action. The motion judge
    found that the appellant let more than six years go by without taking any steps
    to advance this litigation because the appellant chose to focus on other litigation
    matters instead. The motion judge concluded that the appellants delay was
    inordinate, that the delay had not been satisfactorily explained and that
    reinstating the action at this stage would undermine the finality principle.

[4]

We see no error in these conclusions. Further we see no merit in the
    appellants claims of want with jurisdiction or denial of natural justice. The
    appellant commenced the action. It was her responsibility to ensure that it
    proceeded. The motion judge properly concluded that reinstating the action
    would undermine the finality principle.

[5]

The appeal is therefore dismissed.

[6]

Costs of the appeal are to the respondent on a partial indemnity scale fixed
    in the amount of $500 inclusive of disbursements and applicable taxes.

Janet Simmons J.A.

M. Tulloch J.A.

David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Cline v. Drummond, 2019 ONCA 188

DATE: 20190307

DOCKET: C64112

Feldman, Roberts and Fairburn JJ.A.

BETWEEN

Patrick Robert Cline, Anne Cline and

Jeffrey Michael Patrick Cline

Plaintiffs

and

Susan
    Elizabeth Drummond

Defendant

AND BETWEEN

Susan Elizabeth (Drummond) Johnson and

Christopher St. Clair Johnson

Plaintiffs by Counterclaim (
Respondents
)

and

Patrick
    Robert Cline, Anne Cline and

Jeffrey Michael Patrick Cline

Defendants by
    Counterclaim (
Appellant)

Jeffrey Michael Patrick Cline, acting in person

Les Protopapas, for the respondents

Heard: March 5, 2019

On appeal from the
    judgment of Justice C. Stephen Glithero of the Superior Court of Justice, dated
    June 27, 2017, with reasons reported at 2017 ONSC 3916.

REASONS FOR DECISION

[1]

This case arises out of a protracted dispute
    between neighbours. The main action related to a property line dispute that was
    settled before trial. Accordingly, the trial judge only dealt with the
    Johnsons counterclaim against Jeffrey Cline, and Jeffrey Clines counterclaim
    against the Johnsons, both of which included allegations related to nuisance
    and invasion of privacy. Patrick and Anne Cline were no longer parties to
    either counterclaim as a result of the settlement.

[2]

This is an appeal from the trial judges
    findings on two fundamental points: (a) that the respondents actions did not
    constitute nuisance or an invasion of privacy; and (b) that the appellants
    actions amounted to nuisance.

[3]

Although the appellant had counsel at an earlier
    point in these proceedings, he represented himself during oral argument. We
    have considered the arguments advanced in both the factum filed by his previous
    lawyer and the arguments he advanced in oral submissions.

[4]

First, the appellant argues that the trial judge
    erred by concluding that he was not entitled to damages for nuisance or
    invasion of privacy. He says that the appellants have been invading his privacy
    for years by using video cameras that are pointed toward his property. The
    trial judge made findings of fact to which we defer.  He applied the correct
    legal test for the tort of nuisance and addressed the substance of the correct legal
    test for the tort of invasion of privacy, also referred to as intrusion upon
    seclusion, from
Jones v. Tsige
,
2012
    ONCA 32 and applied it to those facts. We would not interfere with his conclusion
    that nuisance and invasion of privacy had not been made out.

[5]

Second, the appellant contends that the trial
    judge erred by failing to make an adverse inference against the respondents on
    the basis that they should have produced more video surveillance than they did.
    We disagree. It was open to the trial judge to reject the appellants suggestion
    that the respondents had destroyed evidence. It was also open to the trial
    judge to conclude that the missing video would not have substantiated the appellants
    position in any event. As the trial judge found, it was more reasonable to
    infer that the videos had not been watched, except in relation to those
    incidents that directly involved the appellant. We see no error in the trial
    judges conclusion that all relevant evidence had been produced.

[6]

Third, the appellant claims that injunctive
    relief should not have been awarded by the trial judge. Given the trial judges
    conclusions about the appellants malice and threatening behaviour towards the
    respondents, we see no error in his decision to grant an injunction restraining
    the appellant from all forms of communication with the respondents, except by
    their written invitation or agreement.

[7]

Fourth, the appellant argued during oral
    submissions that the trial judge erred by finding police officers credible when
    they were clearly not. We see no such error. Although the trial judge made
    multiple credibility findings, he was duty bound to do so. The fact that those
    findings do not accord with the appellants view of the witness veracity is
    not a reason to set aside those findings.

[8]

Finally, the appellant argued that the trial
    judge was biased and prejudiced. We see no evidence to support that claim. The
    trial judge carefully, patiently, and methodically considered all evidence in
    this case, identified the live issues before the court, came to findings of
    fact and correctly applied the law.

[9]

The appeal is dismissed. Costs of the appeal are to the
    respondents in the amount of $10,000, inclusive of H.S.T. and disbursements.

K. Feldman J.A.
L.B. Roberts J.A.
Fairburn J.A.


COURT OF APPEAL
    FOR ONTARIO

CITATION: Crosstown Transit Constructors v. METROLINX, 2019
    ONCA 240

DATE: 20190327

DOCKET: C65832

Feldman, Simmons and Nordheimer JJ.A.

BETWEEN

Crosstown Transit
    Constructors

Plaintiff (Appellant)

and

Metrolinx

Defendant (Respondent)

Duncan Glaholt and Michael Valo, for the appellant

Peter Wardle and Evan Rankin, for the respondents

Heard:  March 22, 2019

On appeal from the order of Justice Herman Wilton-Siegel of
    the Superior Court of Justice, dated July 31, 2018 with reasons reported at 2018
    ONSC 4650

REASONS FOR DECISION

[1]

The applicant appeals from the order of the application judge that
    dismissed its application for judgment against the respondent in the amount of
    $7,451,662.65 pursuant to the terms of a settlement agreement
.

[2]

The parties entered into a contract for the construction of the western
    portion of the Eglinton Crosstown Tunnel (the Project).

[3]

Pursuant to the contract, the respondent was required to obtain certain
    insurance including third party liability insurance for the benefit of both
    parties and other subcontractors on the Project, which it did. The respondent
    is the first named insured and the appellant is an additional insured in the insurance
    policies.

[4]

An additional term of the contract between the parties was that the
    appellant was responsible for paying 100% of the deductibles for each third
    party claim against the appellant  made under the insurance policies, save for
    certain specific exceptions, none of which are of relevance here.

[5]

The appellant completed all of its work on the Project and a certificate
    of substantial performance of the contract was issued on November 29, 2016.
    There were some disputes outstanding but, after negotiations, the parties
    entered into a final settlement of the outstanding contract related issues
    between them.

[6]

As part of that settlement, the parties agreed to provide mutual
    releases.  One term of those releases was as follows:

THE PARTIES acknowledge that this Release is not intended to,
    and does not, affect the Parties' rights and obligations with regard to the
    insurance policies METROLINX was required to procure and maintain under the
    Contract ("OCIP Policies"). The Parties further acknowledge and agree
    that they will take all such action as reasonably necessary to allow each Party
    to secure any benefits which are or may be due under the OCIP Policies.

[7]

When it came time for the respondent to pay the final amount due to the
    appellant under the settlement, the respondent advised the appellant that it
    was going to withhold, from that payment, the amount potentially due for
    deductibles relating to outstanding claims by third parties that would be covered
    by the insurance policies.  The amount potentially due, at the time, was $6.4
    million.

[8]

The appellant took the position that no amount was owing to the
    respondent in respect of the deductibles as the settlement had resolved all
    outstanding issues under the contract, including any liability it had for the deductibles.
    The appellant brought an application for the interpretation of the settlement
    agreement and for judgment for the amount that the respondent had withheld from
    the settlement payment on account of the deductibles.

[9]

The motion judge found that the above term in the release was ambiguous.
    However, he concluded, after considering the intentions of the parties and the
    surrounding factual matrix, that the proper interpretation of the release, read
    as a whole, was that it did not release the appellant from its obligation to
    pay the applicable deductibles.

[10]

We
    agree with the conclusion reached by the motion judge but for different
    reasons. We do not view the term of the release as being ambiguous. There is no
    dispute that the parties intention was to protect their rights under the insurance
    policies. The term in the release is not restricted just to the rights and
    obligations as stipulated in those insurance policies. Rather, the term
    expressly states that it is not intended to, and does not, affect the parties'
    rights and obligations
with regard to
the
    insurance policies. In our view, that language clearly applies to all of the
    rights and obligations of the parties relating to the insurance policies, including
    the rights and obligations that they agreed upon
in the
    contract
with respect to the payment of the applicable deductibles.

[11]

However,
    even if the language of this term of the release is ambiguous, we do not find
    any error in the analysis and conclusion reached by the motion judge in terms
    of the interpretation he gave to it, which leads to the same result. The motion
    judges interpretation is entitled to deference from this court unless a
    palpable and overriding error can be shown, of which there is none here:
Sattva
    Capital Corp. v. Creston Moly Corp.,
2014 SCC 53, [2014] 2 S.C.R. 633.
    Nor is there any extricable question of law involved that would invoke a
    correctness standard of review.

[12]

We
    would add that we are unable to see anything in the events that led up to the
    settlement that would demonstrate that it was the intention of the parties to
    release the appellant from its contractual obligation to pay the deductibles.
    The appellant points to an email it sent to the respondent that proposed that
    mutual releases be exchanged and that the insurance exemption clause be
    inserted. There is nothing in that email that refers to the deductibles or
    suggests that the purpose of the proposed changes was to release the appellant
    from its obligation to pay them. Further, as the application judge noted, there
    is nothing in the record to suggest there was any reason for the respondent to have
    agreed to give up its entitlement to have the appellant pay the deductibles.
    That is, there is nothing in the evidence that demonstrates that the respondent
    gained anything in exchange for relinquishing its entitlement to be paid those
    amounts.

Conclusion

[13]

The
    appeal is dismissed with costs to the respondent fixed in the agreed amount of
    $30,000 inclusive of disbursements and HST.

K.
    Feldman J.A.
Janet Simmons J.A.
I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Endean v. St. Joseph's General Hospital, 2019 ONCA
    181

DATE: 20190308

DOCKET: C63751

Rouleau, van Rensburg and Zarnett JJ.A.

BETWEEN

Paulette M. Endean, Frank William Endean and
    Debbie Endean

Plaintiffs (Appellants/

Respondents by way of cross-appeal)

and

St. Josephs General Hospital

Defendant (Respondent/

Appellant by way of cross-appeal)

AND BETWEEN

Janet Hearsey by her Litigation Guardian Leslie
    Hearsey and Leslie Hearsey

Plaintiffs (Appellants/

Respondents by way of cross-appeal)

and

St. Josephs General Hospital

Defendant (Respondent/

Appellant by way of cross-appeal)

AND BETWEEN

Stephen Karam, Estate Trustee of the Estate of Andrew
    Karam

Plaintiff (Appellant/

Respondent by way of cross-appeal)

and

St. Josephs General Hospital

Defendant (Respondent/

Appellant by way of cross-appeal)

AND BETWEEN

Sherry Lind, Gino Deamicis, Lorraine Lind by her
    Litigation Administrator Crystal Lind, Lauri Lind, Crystal Lind, Donald Deamicis
    and Daniel Deamicis

Plaintiffs (Appellants/

Respondents by way of cross-appeal)

and

St. Josephs General Hospital

Defendant (Respondent/

Appellant by way of cross-appeal)

Brian Moher and Monica Zamfir, for the appellants/respondents
    by way of cross-appeal

Stephen Wojciechowski and Dawne Latta, for the
    respondent/appellant by way of cross-appeal

Heard: January 9, 2019

On appeal from the judgments of Justice F. Bruce
    Fitzpatrick of the Superior Court of Justice, dated April 27, 2017, with
    reasons reported at 2017 ONSC 2632, and from the costs order, dated December 1,
    2017, with reasons reported at 2017 ONSC 7190.

Zarnett J.A.:

Introduction

[1]

The appellants Paulette Endean, Janet Hearsey, Andrew Karam and Sherry
    Lind each had surgery at the respondent St. Josephs General Hospital (the
    hospital) in the mid 1980s. Each was implanted with a Vitek Proplast Teflon
    Interpositional implant (the implant), a device designed to replace a
    meniscus inside the temporomandibular joint (TMJ). The TMJ is a complex load
    bearing joint located between the skull and jaw which is central to, among
    other things, a persons ability to talk, chew, swallow, and yawn.

[2]

The implant caused injury to each of these individuals. It delaminated
    inside the TMJ, leaving particulate residue which, over time, caused
    degenerative bone loss. All four individuals had perforations in their skull in
    the area of their TMJ.

[3]

In 1996 and 1997, the appellants commenced actions against the hospital
    and the oral surgeons who actually did the implant surgery and follow up care (the
    Endean, Karam, Lind, and Hearsey Actions). The hospital and the oral surgeons
    cross-claimed against one another in all four actions.

[4]

In 2013, the appellants reached settlements with the oral surgeons. A Pierringer
    Order was made in each action, which affected the way the actions would
    continue against the hospital. The Pierringer Orders dismissed the actions
    against the oral surgeons and the cross-claims between the hospital and the
    oral surgeons. They provided that each of the appellants claims are
    restricted such that [the appellants] will only claim those damages, if any,
    arising from the actions or omissions of the Defendant Hospital.

[5]

The Pierringer Orders required the statement of claim in each action to
    be amended to limit the claim against the hospital to its several liability or
    proportionate share of joint liability to the appellants. The appellants recovery
    would be limited to the damages, costs and interest attributable to the hospitals
    several liability, or proportionate share of joint liability, as may be proven
    at trial. And the Pierringer Orders required the appellants to acknowledge, in
    their amended pleadings, that the court at trial had the authority to
    adjudicate upon the apportionment of fault among all defendants who had been
    named in each action, i.e., the hospital and the oral surgeons. The Pierringer
    Orders made specific provision for the obtaining and use of evidence by and
    about the oral surgeons at a trial between the appellants and the hospital.

[6]

In 2016, the actions came to trial together. The parties agreed at the
    outset to bifurcate the trial, dealing first with the issue of liability.

[7]

The trial judge:

a)

Dismissed the Endean, Karam,
    and Lind Actions on the basis that each had been commenced beyond the two year
    limitation period in the
Public Hospitals Act
(the
PHA
)
,
R.S.O. 1980 c. 410, s.
    28 and R.S.O. 1990, c. P.40, s. 31;

b)

Held that the Hearsey Action
    was not barred by the
PHA
limitation period, because Ms. Hearsey had
    received a follow up treatment at the hospital within two years of the
    commencement of her action;

c)

Found that the hospital was
    negligent in acquiring the implants and the oral surgeons were negligent in
    failing to take due care when assessing the viability of the implant and in the
    manner they followed up with patients after becoming aware of problems. He apportioned
    fault between them as follows: 5% of the fault to the hospital, 20% of the
    fault to the oral surgeons. He also apportioned 50% of the fault to the
    manufacturer of the implant, Vitek Inc., for making a defective product, and
    25% of the fault to the distributor of the implant, Instrumentarium, who
    purchased it from the manufacturer and sold it to the hospital without due
    enquiry as to whether it was an approved product. Neither the manufacturer nor
    the distributor were ever parties to the actions and both were bankrupt;

d)

Granted judgment in the
    Hearsey Action against the hospital for 5% of the damages that were to be
    assessed in the second phase of the trial; and

e)

Granted costs in favour of
    the hospital in each of the Endean, Karam and Lind Actions.

[8]

The appellants appeal, raising the following grounds:

a)

The trial judge erred in
    dismissing the Endean, Karam and Lind Actions on the basis of the
PHA
limitation period. They raise two points under this issue. First, they say that
    the two year limitation period in the
PHA

did not apply, because the limitation period related only
    to actions for negligence in the admission, care, treatment or discharge of a
    patient. The trial judge, they argue, situated the negligence of the hospital
    in its purchase of the implant, which should have been subject to the six year
    limitation period in the former
Limitations Act
, R.S.O. 1990, c. L.15. Second,
    they argue that even if the
PHA
applied, the trial judge should have
    found that the limitation period was extended under the doctrine of fraudulent
    concealment.

b)

The trial judge erred in
    rejecting their argument that the hospital was liable for breaching a duty to
    recall patients once it was advised of problems with the implant. They say that
    if this theory of liability were accepted, it would affect the apportionment of
    liability and the limitation period.

c)

The trial judge erred in
    apportioning fault to the manufacturer and the distributor, and thus restricting
    recovery in the Hearsey Action (and the other actions if they were improperly
    dismissed) to only 5% of the damages to be assessed.

[9]

The hospital cross-appeals. It argues that the Hearsey Action should
    also have been dismissed on the basis of the
PHA
limitation period. What
    the trial judge relied upon to bring the action within time was not treatment,
    but simply a diagnostic test. Second, it argues that the trial judge erred in
    failing to include HST in the cost awards made in its favour in the Endean,
    Lind, and Karam Actions.

[10]

For
    the reasons that follow I would allow the appeal in part. I would not disturb
    the trial judges finding that the Endean, Karam, and Lind Actions were barred
    by the
PHA
limitation period. In my view, the trial judge did not err in
    applying that limitation period or in rejecting the argument of fraudulent
    concealment. Nor did the trial judge err in rejecting the argument that the hospital
    breached a duty to recall. The trial judge did err, however, in apportioning
    fault to the manufacturer and distributor and reducing the recovery of the
    appellants in the Hearsey Action as a result of that apportionment. I would
    vary the judgment in the Hearsey action as described below.

[11]

I
    would dismiss the cross-appeal. Contrary to the assertions of the hospital, in
    the circumstances of this case Ms. Hearseys follow up appointment should not
    be ignored in determining when her treatment ceased and thus when the
PHA
limitation period commenced to run. Nor is there an error in principle in the
    trial judges award of costs.

Analysis

[12]

In light of the nature of the grounds of appeal
    the facts relevant to determining the issues (other than those in the outline
    above) are set out in relation to each issue discussed below.

(1)

The Limitation Period Issues

The Approach of
    the Trial Judge

[13]

Because
    of the dates the actions were commenced, the argument about limitation periods
    concerns provisions which are not currently in force but were at the relevant
    times.

[14]

The
PHA
limitation period applied by the trial judge provided as follows:

Any action against a hospital or any nurse or person employed
    therein for damages for injury caused by negligence in the admission, care,
    treatment or discharge of a patient shall be brought within two years after the
    patient is discharged from or ceases to receive treatment at the hospital and
    not afterwards.

(Between 1985 and 1990 this was s. 28 of the
PHA
,
    R.S.O. 1980, c. 410. From 1990 forward, this was s. 31 of the
PHA
,
    R.S.O. 1990, c. P.40. The limitation period provision was repealed in 2004, as
    a result of the enactment of the
Limitations Act,

2002
, S.O.
    2002, c. 24.)

[15]

The
    trial judge rejected the appellants argument the
PHA
limitation period
    is subject to a discoverability principle. Thus, it was irrelevant that the
    appellants had no idea anything was wrong with them until 1994 at the earliest
    and commenced their actions within two years of knowing the implant had failed
    and caused them damage. For the non-applicability of the discoverability
    principle to the
PHA
, the trial judge relied upon:
Von Cramm Estate
    v. Riverside Hospital of Ottawa
(1986), 32 D.L.R. (4th) 314, 17 O.A.C. 218
    (C.A.);
Hay v. Canadian Red Cross Society
,
[2004] O.J. No. 2887
    (S.C.); and
Purtell v. Royal Ottawa Hospital
, [2005] O.J. No. 2965
    (S.C.), affd 2007 ONCA 367, leave to appeal denied, 2007 S.C.C.A. No. 362.

[16]

In
Von Cramm
,
Cory J.A.
    (as he then was) made it clear that the discoverability principle did not apply
    to the
PHA
. He noted the harshness of applying a limitation period in a
    situation where, as was the case in
Von Cramm
and is the case here, a
    plaintiff could not have known or reasonably known of the negligence of the
    hospital until after any limitation period had expired. But that result was the
    product of the clear wording of the
PHA
. The limitation provision was enacted
    to protect public institutions. Any amelioration of the harshness of it
    expiring before a cause of action was discoverable was required to come from
    the Legislature, not the courts: see p. 318.

[17]

Although
Von Cramm
was decided before
Peixeiro v. Haberman
, [1997] 3
    S.C.R. 549,

in my view the trial judge was correct to find that the
    discoverability principle did not apply to the
PHA
.
Peixeiro
approved the application of the discoverability principle to limitation
    provisions which, properly interpreted, turned in some way on the injured
    persons knowledge for their commencement: see pp. 562-566. But the courts in
    both

Hay
and
Purtell

held that
Peixeiro
did not make the discoverability principle applicable to the
PHA
,
    because its limitation period runs from a fixed event unrelated to either the
    plaintiffs knowledge or the basis of the cause of action: see
Hay
, at
    paras. 14-16, and
Purtell
,
at paras. 36-37. In this court, the appellants did not challenge the conclusion
    that the discoverability principle was inapplicable to the
PHA
.

[18]

The
    trial judge then considered when a person ceases to receive care or
    treatment for the purpose of determining when the
PHA
limitation
    period commenced. The trial judge held that the appellants treatment or care
    ceased upon their being discharged on the last occasion each attended for a TMJ
    implant issue. He reasoned that where a later treatment in a hospital can be
    connected to the one about which negligence is alleged, the time limit runs
    from the date of the latest treatment, following
Fiorelli v. St. Marys
    General Hospital
, [1995] O.J. No. 631 (C.A.).

[19]

The
    trial judge made the following findings on the limitation issue:

a.

Ms. Lind received care and
    treatment from the hospital on June 17, 1985, June 5, 1986 and November 26,
    1991. This included the placement and removal of the implant, and the removal
    of certain debris from the TMJ that had been at the site of the implant.
    Although there was evidence that she had attended at the hospital on a number
    of occasions thereafter, the trial judge made a factual finding that these attendances
    related to other issues, not the implant or care or treatment of its effects.
    These findings are not challenged on appeal. Accordingly, the trial judge used
    November 26, 1991 as the date Ms. Lind ceased to receive care or treatment from
    the hospital, and thus as the date the
PHA
limitation period began to
    run. He held that her claim became statute barred on November 27, 1993. The
    Lind Action, commenced on August 20, 1996, was thus out of time.

b.

Ms. Endean attended the hospital
    only once, for her implant surgery, on October 8, 1985. The removal of the
    implant was done elsewhere and there were no other treatments at the hospital related
    to the implant or its effects. Accordingly, the trial judge held that October
    8, 1985 was the commencement of the
PHA
limitation period, and it
    expired on October 9, 1987. The Endean Action, commenced July 11, 1997, was
    thus out of time.

c.

Mr. Karam attended the hospital
    only once, for his implant surgery, on November 21, 1985. The removal of the
    implant was done elsewhere and there were no other treatments at the hospital
    related to the implant or its effects. The trial judge found that November 21,
    1985 was the commencement of the
PHA
limitation period, which expired on
    November 22, 1987. The Karam Action, commenced on March 14, 1997, was therefore
    out of time.

d.

Ms. Hearsey had her implant
    surgery on March 5, 1986, but attended the hospital for a follow up radiological
    procedure - a tomogram - on June 9, 1994. The trial judge found the tomogram
    was related to the failure of the implant, and thus was related to the original
    treatment she received in 1986. Although no negligence was alleged against the
    hospital for the way it conducted the tomogram, it was done as a result of the
    original implant and therefore was clearly connected to the negligence alleged.
    The trial judge held the tomogram was treatment, and therefore the
PHA
limitation
    period commenced on June 9, 1994 and did not expire until June 10, 1996. The
    Hearsey Action, commenced on March 21, 1996, was thus in time.

[20]

The
    trial judge considered and rejected the argument that the limitation period
    should be extended by operation of the doctrine of fraudulent concealment. He observed
    that the issue was raised late and not referred to in the appellants pleadings.
    But he went on to state that:

[M]ost importantly, I am not persuaded that
    the evidence at this trial has proven, or even suggested, that the Hospital was
    an unscrupulous defendant or that the acts or even failings of any of its
    employees or directors or agents came anywhere close to what any reasonable
    person could describe as constituting fraud or a fraudulent concealment.

The Limitation
    Period Appeal regarding the Endean, Karam and Lind Actions

[21]

The
    appellants attack the trial judges limitation period conclusions that led him
    to dismiss the Endean, Karam and Lind Actions on two bases.

[22]

First,
    they argue that the
PHA
limitation period does not apply to the wrong
    found to have been committed by the hospital; they contend it was not negligence
    in the care, treatment or discharge of the appellants. They argue that the
PHA
limitation period, a provision that restricts rights of action, must be
    strictly interpreted:
Fenton v. North York Hydro-Electric Commission

(
1996)
,
    29 O.R. (3d) 481, 92 O.A.C. 53 (C.A.), at pp. 11-12. The trial judge found the
    only negligence of the hospital was its decision to purchase the implants, at a
    time when they were not approved for sale or use in Canada, without enquiring
    whether they had received any such approval. For example, the trial judge
    stated I agree with the argument of counsel for the plaintiffs that a
    reasonable person would think maybe we should check to see if the device is
    approved before it was acquired. The appellants argue that if one gives the
PHA
a strict reading, the hospitals decision to purchase the implants was not
    negligence in the treatment or care of a patient, but negligence in a
    purchasing decision, made before the surgeries of the appellants were even
    contemplated. That negligence, they argue, would be subject to the limitation
    period in the former
Limitations Act
, and its overlay of
    discoverability.

[23]

The
    difficulty with this argument is that the negligence of the hospital in
    purchasing the implants was not actionable by any of the appellants on its own.
    It was only actionable because the implants were made available for use by oral
    surgeons for surgeries performed on Ms. Endean, Ms. Hearsey, Mr. Karam and Ms.
    Lind at the hospital. The appellants had a claim for negligence against the hospital
    only because each became a patient of the hospital, receiving treatment and
    care (that is, a surgical procedure), using devices that had been negligently
    acquired by the hospital for just such a use.

[24]

The
    trial judges findings are illustrative of the integral connection between the
    purchase of the implants, the appellants care and treatment, the appellants
    injuries and the negligence of the hospital. The trial judge found that:

Given that the device at issue would be placed
    in a persons body potentially for life and given that there was a government
    regulatory regime in place allowing or not allowing distribution of a device by
    manufacturers, failing to inquire about the use of the device is evidence of
    negligence.

And he found that the negligence in the purchase caused
    damage to the appellants exactly because [b]ut for the acquisition of the
    device, the oral surgeons could not have done the procedure, at least not at [the
    respondent] Hospital.

[25]

In
    my view, giving the
PHA
the strict reading contemplated by cases like
Fenton
does not alter the conclusion that the
PHA
limitation provision
    applies here. A negligent act by a hospital before a patient receives care or
    treatment, which becomes actionable only because it enables a treatment at the hospital
    that causes injury, is negligence in the care or treatment of the patient
    within the meaning of the
PHA
limitation provision.

[26]

Accordingly,
    I would not give effect to this ground of appeal.

[27]

Second,
    the appellants argue that the trial judge erred in rejecting their argument of
    fraudulent concealment. They point to the hospital having become aware of
    problems with the implants five years before the appellants. The trial judges error,
    they say, flowed from his having approached the issue as though what was
    required was conduct that was fraudulent in the common law sense.

[28]

I
    agree with the appellants that the doctrine of fraudulent concealment does not
    require common law fraud. As the Supreme Court of Canada said in
Guerin v. The
    Queen
, [1984] 2 S.C.R. 335, at p. 390:

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

[29]

I
    also agree with the appellants that the doctrine of fraudulent concealment
    could apply to the
PHA
limitation period. In this courts decision in
Zeppa
    v. Woodbridge Heating & Air-Conditioning Ltd.
, 2019 ONCA 47, the
    majority held that the doctrine of fraudulent concealment has no room to
    operate where the provisions of the
Limitations Act, 2002
, which are
    subject to a codified discoverability test, apply: see para. 71. But, at para. 64,
    the majority did not question the applicability of the doctrine of fraudulent
    concealment to other statutes:

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

(2002), 217 D.L.R. (4th) 327 (C.A.), at para. 35.

[30]

However,
    I disagree with the appellants that the doctrine applies in the circumstances
    of this case. In
Zeppa
, the majority adopted the following description
    of the doctrine at para. 62:

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

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

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

Fraudulent concealment includes conduct that having regard
    to some special relationship between the parties) concerned is unconscionable.
For fraudulent concealment, the defendant must hide, secret,
    cloak, camouflage, disguise, cover-up the conduct or identity of the wrongdoing
.
    [Emphasis added.]

[31]

The
    trial judges findings of fact preclude any conclusion that the hospital was
    hiding, secreting, cloaking, camouflaging, disguising or covering up anything.
    The appellants point to the hospitals receipt of a notification in May, 1990
    from the Emergency Care Research Institute (ECRI) that indicated that the
    implant can contribute to progressive bone degeneration, should not be used
    anymore, existing stocks of the implant should be returned to the manufacturer,
    and persons who had received the implant required monitoring and follow up.
    They also point to the hospital, in August of 1990, having received
    correspondence from the distributor recalling the implants and asking for the names
    of oral surgeons who had patients with the implants, so that safety information
    could be provided by the distributor to the oral surgeons.

[32]

The
    facts found by the trial judge, which are referred to in the section below on
    the duty to recall, show that the hospital contacted the oral surgeons to
    ensure they knew about the issue with the implants. The hospital was advised
    that the oral surgeons were aware of the issue, and the hospital had the
    reasonable expectation that any follow up with patients would be done by the
    oral surgeons. The hospital was also in touch with the distributor and was advised
    that it already had the names of the oral surgeons for further communication.
    Those facts are not consistent with the hospital hiding, secreting, cloaking,
    camouflaging, disguising or covering up anything. In other words, they are not
    consistent with concealment in the sense required by the doctrine.

[33]

Accordingly
    I would reject this ground of appeal.

The Limitation Period Cross-Appeal regarding the
    Hearsey Action

[34]

By
    cross-appeal, the hospital argues that the trial judge erred in not dismissing
    the Hearsey Action as barred by the
PHA
limitation period. It argues
    that the diagnostic procedure that Ms. Hearsey had in 1994, the tomogram, was
    not treatment. In the hospitals view, the trial judge erred in using it to
    determine the start date of the limitation period for the Hearsey Action. The
    hospital concedes, per
Fiorelli
, that it is the most recent treatment
    that is the operative commencement of the limitation period, as long as it has
    a connection to the care or treatment in which the negligence is alleged to
    have occurred. The hospital also concedes that the tomogram was connected to
    the implant surgery. Its point is that a diagnostic procedure is not treatment.

[35]

I
    would reject this argument. Nothing in the
PHA
limitation provision supports
    the distinction between a diagnostic procedure and treatment the hospital seeks
    to make, especially if one reads the provision so as to minimize the extent to
    which it interferes with rights of action, as cases such as

Fenton
require. Treatment is a term that encompasses investigation necessary to
    determine a future course of care and treatment, as well as investigation to
    monitor the effect of previous care and treatment. The tomogram in these
    circumstances was treatment.

[36]

Accordingly,
    I would not give effect to this ground of the cross-appeal.

(2)

The Duty to Recall

[37]

The
    appellants argue that the trial judge failed to give effect to the correct duty
    of care. Although he criticized the oral surgeons for their delay in calling
    back patients after becoming aware of implant problems, the appellants say the
    trial judge should have recognized that when the hospital received the 1990
    ECRI warning and the August 1990 letter from the distributor, it owed a duty of
    care to contain the risks. In oral argument, this was sometimes called a
    duty to warn, but before the trial judge, in their factum in this court, and
    in the substance of their oral argument before this court, it was articulated as
    more than a simple duty to give the appellants some sort of warning or notification.
    Rather, it was framed as an obligation on the part of the hospital to notify
    the appellants of the need for follow up care and to provide that follow up
    care  independently of anything the oral surgeons were doing. The trial judge
    properly described the contended for duty as a duty to recall the patients.

[38]

In
    my view, on the facts he found, the trial judge did not err in rejecting this theory
    of liability.

[39]

The
    trial judge found that upon receiving the 1990 ECRI warning and the
    distributors letter, the hospital contacted the oral surgeons to ensure both
    that they did not book any further implant surgeries and to confirm that they
    knew about the warning. He found that the oral surgeons advised the hospital
    that they were aware of the warning, and he found that the oral surgeons were
    aware of the problems with the implant by 1990. He also found that the hospital
    had contacted the distributor and confirmed in 1991 that the distributor was
    aware of and had been directly in touch with the oral surgeons  one of the
    requests in the distributors letter.

[40]

The
    appellants were the patients of the oral surgeons. The trial judge accepted the
    evidence of the CEO of the hospital that a recall of patients was something to
    be initiated only by the oral surgeons, given their medical training, ability
    to order tests, and ability to treat patients. The trial judge also accepted expert
    evidence that there was no precedent for any hospital in Canada self-initiating
    a recall of patients. He accepted evidence that the hospital could not order an
    oral surgeon to do any procedure on a patient or call people in for treatment;
    nor could it write orders for tests or book patients for treatment absent a
    physicians approval. He held that it was reasonable for the hospital to assume
    that the distributor and the oral surgeons, who had knowledge superior to that
    of the hospital about the implant and about what to do for patients if the
    implant failed, would deal appropriately with the issue. He concluded that there
    was no basis to elevate the hospital to an oversight role over the oral
    surgeons. These findings are entitled to deference. In light of them, the
    appellants proposition that a duty to recall existed and was breached by the
    hospital must be rejected.

[41]

In
    my view, the trial judge also did not err in determining that the decision in
Pittman
    Estate v. Bain
(1994), 112 D.L.R. (4th) 257 (Gen. Div.) did not assist the
    appellants.
Pittman
held that a hospital that undertakes a program to
    notify patients of a problem must do so without negligence. That proposition is
    not applicable here, given that the hospital did not undertake any notification
    program. On the trial judges findings of fact, nothing in
Pittman
requires a different conclusion to the one he reached.

[42]

Accordingly
    I would reject this ground of appeal.

(3)

Apportionment

[43]

The
    appellants argue that the trial judge erred by apportioning 75% of the
    liability to two non-parties. This limited the recovery of the appellants whose
    claims were not barred by a limitation period - that is, the Hearsey appellants
    - to 5% of their assessed damages. The manufacturer, who the trial judge found
    to be 50% at fault, and the distributor, held to be 25% at fault, were never
    parties to the action, were never the subject of third party proceedings by the
    hospital, and were both bankrupt. As such, the appellants say that apportionment
    of fault to them in a way that reduced the appellants recovery from the hospital
    was improper.

[44]

The
    hospital supports the trial judges approach.

[45]

There
    were two planks to the hospitals argument, (a) the Pierringer Order and the
    resulting amended statement of claim; and (b) this courts decision in
Taylor
    v. Canada (Health)
, 2009 ONCA 487, 95 O.R. (3d) 561. In my view, neither
    supports the trial judges approach.

[46]

In
    order to understand why I reject the hospitals argument, it is important to
    review some principles which set the background for consideration of both the
    Pierringer Order and the consequential amendment to the statement of claim, and
    the decision in
Taylor
.

Concurrent Liability and Pierringer Orders

[47]

At
    law, where more than one wrongdoer has caused or contributed to the plaintiffs
    injury, they are each liable to compensate the plaintiff in full, subject only
    to the rule that the plaintiff cannot recover more than 100% of their damages:
    see
Athey v. Leonati
, [1996] 3 S.C.R. 458, at para. 25. In practical
    terms, this means the plaintiff can recover 100% of their losses from any
    defendant who caused or contributed to the particular injury regardless of the
    degree of fault of that defendant, and regardless of whether others, parties or
    non-parties, were also at fault.

[48]

Pursuant
    to s. 1 of the
Negligence Act
, R.S.O. 1990, c. N.1, wrongdoers have a
    right of contribution from each other. In other words, although each remains jointly
    and severally liable to pay the plaintiff 100% of the plaintiffs damages, each
    can exercise the statutory right to have fault apportioned among the wrongdoers
    so that each wrongdoer will indemnify the others in accordance with the share
    of fault apportioned to them. Thus, if a defendant found 50% at fault pays the
    plaintiff 100% of their damages, that defendant can recover the 50% overpayment
    from the other wrongdoer(s) to whom the other 50% of fault was apportioned: see
Martin v. Listowel Memorial Hospital
(2000), 192 D.L.R. (4th) 250, 138
    O.A.C. 77 (C.A.), at paras. 34-35.

[49]

It
    is important, however, to note that the right of indemnity is not something
    which affects the plaintiff. The entire risk that a wrongdoer, liable to pay
    100% of the plaintiffs damages while not 100% at fault, will be able to
    actually recover indemnity from another wrongdoer, is on that first wrongdoer
    not the plaintiff. If the second wrongdoer is not pursued by cross-claim, third
    party action or separate action, or if the second wrongdoer pursued is not creditworthy
    or insured, the first wrongdoer will still have to pay 100% of the plaintiffs
    damages and recover no indemnity: see
Taylor
, at paras. 18-20.

[50]

Before
    the Pierringer Order in the Hearsey Action, the hospital and oral surgeons were
    defendants and had cross-claimed against each other. The hospital and the oral
    surgeons were each at risk to the Hearsey appellants, if found at fault to any
    degree, of having to pay 100% of any damages. But, each had the right to
    recover from the other for the latters proportionate share of any fault. So if,
    for example, the hospital paid the plaintiff more than its proportionate share,
    the hospitals out of pocket expense, assuming the oral surgeons were
    creditworthy, would be reduced by obtaining indemnity from the oral surgeons
    for their proportionate share of fault, and vice versa.

[51]

In
    addition, before the Pierringer Order in the Hearsey Action the hospital and
    the oral surgeons had no proceeding pending to claim indemnity from the
    manufacturer or distributor for their proportionate share of any fault, and they
    had no practical means of collecting any indemnity even if they had claimed it,
    as each of the manufacturer and distributor was bankrupt. So if, for example, the
    hospital paid 100% of the damages of the Hearsey appellants, as it would be
    liable to do no matter the degree of fault attributed to it, it could recover
    nothing from either the manufacturer or the distributor.

[52]

This
    brings us to the Pierringer Order in the Hearsey Action. Named after
Pierringer v.
    Hoger
, 124 N.W. 2d 106, 21 Wis. 2d 182 (U.S. Wis. S.C. 1963), the
    purpose of a Pierringer Order is to facilitate a settlement between a plaintiff
    and a defendant who wishes to settle (a settling defendant), while maintaining
    a level playing field for the remaining (non-settling) defendant against whom
    the plaintiff wishes to proceed to trial: see
Sable Offshore Energy Inc. v.
    Ameron International Corp.
, 2013 SCC 37, [2013] 2 S.C.R. 623, at paras. 6, 23-26.
    It does this by certain essential provisions:

(1) The settling defendant settles with the plaintiff;

(2) The plaintiff discontinues its claim [against] the settling
    defendant;

(3) The plaintiff continues its action against the non-settling
    [defendant] but limits its claim to the non-settling defendant's several
    liability (a 'bar order');

(4) The settling defendant agrees to co-operate with the
    plaintiff by making documents and witnesses available for the action against
    the non-settling defendant;

(5) The settling defendant agrees not to seek contribution and
    indemnity from the non-settling defendant; and

(6) The plaintiff agrees to indemnify the settling defendant
    against any claims over by the non-settling defendants.

Handley Estate v. DTE Industries Limited
, 2018 ONCA 324,
    421 D.L.R. (4th) 636, at para. 39, citing Paul M. Perell & John W. Morden,
    The Law of Civil Procedure in Ontario, 3d ed. (Toronto: LexisNexis Canada,
    2017), at p. 762.

[53]

These
    essential provisions of a Pierringer Order are informed by the discussion of
    liability above. The non-settling defendant will have cross-claimed against a
    settling defendant because it wants to recover the settling defendants share
    of fault from it as indemnity, should the non-settling defendant have to pay more
    than its proportionate share of the plaintiffs damages. The non-settling
    defendants need to do so disappears under a Pierringer Order, because it
    requires the plaintiff to effectively put the non-settling defendant in the
    same economic position as if it paid the plaintiff in full and recovered any
    indemnity from the settling defendant. It does this by requiring the plaintiff
    to reduce its recovery from the non-settling defendant by the percentage of
    fault to be attributed to the settling defendant, and thus by the amount the non-settling
    defendant would have been able to recover from the settling defendant as
    indemnity: see
M.(J.)

v. Bradley
(2004), 71 O.R. (3d) 171, 187
    O.A.C. 201 (C.A.), at paras. 30-31.

[54]

To
    use an example, suppose defendants A and B were each creditworthy and cross-claimed
    against each other for indemnity. Suppose each is found liable at trial and
    fault was apportioned 50% to each. The plaintiff makes A pay 100% of the damages.
    But A recovers from B, on a cross-claim, for Bs 50% proportionate liability as
    indemnity. At the end of the day, As net payment is only 50%, commensurate
    with As liability.

[55]

Now
    suppose the plaintiff settled with B before trial. In the Pierringer Order
    situation, the plaintiff reduces their recovery from A (who did not settle) by
    the amount it is determined that B is at fault. At trial, A and B are each
    found to be 50% at fault. The plaintiff reduces their claim against A by the
    amount of fault attributed to B. As net payment is the same 50%.

The Pierringer Order in the Hearsey Action Did Not
    Authorize Reduction of Recovery Due to Fault of Persons Other Than the Oral
    Surgeons

[56]

The
    Pierringer Order in the Hearsey Action is similar to the example above in so
    far as the hospital and the oral surgeons were concerned. For ease of
    reference, that Pierringer Order is attached as Schedule A to these reasons.
    The hospitals cross-claim against the oral surgeons in the Hearsey Action had
    been made so that the hospital could obtain indemnity from the oral surgeons if
    it was obliged to pay the plaintiffs full damages. To the extent fault was
    attributed to the oral surgeons, the hospital could recover indemnity from them
    and thus reduce its net out of pocket expenditure. The Pierringer Order
    dismissed the cross-claim of the hospital against the oral surgeons. It did not
    prejudice the hospital by doing so, as it required the Hearsey appellants to
    reduce their claim against the hospital by the amount of fault that would be
    apportioned at trial to the oral surgeons, and it provided procedures whereby
    that determination could be made at trial. If that was all the Pierringer Order
    in the Hearsey Action did, it would meet the objectives generally ascribed to a
    Pierringer Order discussed above.

[57]

However,
    the effect the hospital argues for goes much further. According to the hospital,
    the effect of the Pierringer Order was to also reduce the Hearsey appellants recovery
    from the hospital by the amount of fault the trial judge might attribute to the
    manufacturer and the distributor. These were entities against whom the hospital
    had not claimed indemnity under the
Negligence Act
, and from whom the
    hospital had no practical ability to recover indemnity even if claimed. The Pierringer
    Order, if so interpreted, would do more than maintain a level playing field for
    the hospital compared to its pre-Order position. The effect of the
    interpretation the hospital seeks is to put the hospital in a
better
position
    than it was in before the Pierringer Order. Before the Pierringer Order, the hospital
    was at risk, if found at fault to any degree, to pay all of the Hearsey
    appellants damages without the ability to obtain indemnity from the
    manufacturer and distributor. This risk was on the hospital, regardless of the
    degrees of fault of the concurrent tortfeasors. As interpreted by the hospital,
    the Pierringer Order would free the hospital of that risk. The hospital would
    be placed in as good a position as it would have been had it claimed indemnity from
    the manufacturer and distributor and had the manufacturer and distributor been
    creditworthy and able to pay indemnity, rather than being bankrupt. No reason
    why this should be the case was suggested.

[58]

The
    Pierringer Orders language, including that incorporated into the amended statement
    of claim, does not, taken as a whole, support this broader interpretation. Paragraph
    5 of the Pierringer Order provides that the Plaintiffs will only claim from
    the Defendant Hospital those damages, if any, arising from the actions or
    omissions of the Defendant Hospital, and refers to the Defendant Hospitals several
    liability, or proportionate share of joint liability, as may be proven against
    it at trial. But that must be read in light of the context and the other
    provisions of the Pierringer Order, which demonstrate that this was only
    intended to ensure the Hearsey appellants claim and recovery from the hospital
    did not include anything for the fault that may be attributed to the oral
    surgeons.

[59]

The
    Pierringer Order was made in the context of an action that included the oral
    surgeons and the hospital as defendants  no one else. It was made in the
    context of a settlement by the appellants with the oral surgeons against whom
    the hospital had cross-claimed. It dismissed the hospitals cross-claim against
    the oral surgeons. It expressly provided that the court at trial may apportion
    fault among all
Defendants named in the Statement of Claim

(emphasis
    added), which meant only the hospital and the oral surgeons. It did not refer
    to apportionment of fault to anyone else. And it provided procedures, including
    for the obtaining and use of evidence from and about the oral surgeons, clearly
    aimed at assisting the parties to present their cases on what fault should be
    apportioned to the oral surgeons. It provided no similar procedures regarding
    the fault of any other entities.

[60]

We were not referred to evidence that any of the appellants had
    made an agreement, as a result of settlements with the manufacturer or
    distributor, that claims the appellants might pursue against the hospital,
    would be reduced by the percentage fault that would be attributed to the
    manufacturer or distributor.

[61]

In his reasons, the trial judge referred to the manufacturer
    having gone bankrupt shortly after it ceased to make the implant in 1988. No
    reference is made to any settlement with the manufacturer or recovery from it,
    let alone to the terms on which that may have occurred.

[62]

The trial judge also referred to a settlement between the
    distributor on the one hand, and the appellants and many others who received
    the implant on the other. The record included a settlement agreement of class
    actions against the distributor. Accepting that the appellants were members of
    the class and may have benefitted from that settlement, my review of that agreement
    does not reveal any term whereby the appellants would reduce their claims
    against persons who were not parties to the class actions, such as the
    hospital, by the distributors percentage fault. Rather, the settlement agreement
    provides:

Except as otherwise provided herein, nothing in this Settlement
    Agreement shall prejudice or in any way interfere with the rights of the
    Settlement Class Members to pursue all of their other rights and remedies
    against persons and/or entities other than the Defendant and Released Parties.
    Nevertheless, Settlement Class Members further agree that in the event the
    Settlement Class Member commences or continues litigation or pursues a claim
    or-makes a claim against any person or entity arising from, arising out of, or
    connected directly or indirectly with the distribution and insertion of a Vitek
    Proplast TMJ implant, including all claims for non-pecuniary, punitive,
    aggravated, and consequential damages, then the Settlement Class Member
    expressly agrees not to include in respect of any such claim any right to
    recover from such person or entity any such amounts as have been paid under the
    terms of this Settlement Agreement to the Settlement Class Member or Settlement
    Class Members.

[63]

This provision requires the appellants to reduce their claims against
    the hospital to take into account the amount they
recovered
from the
    distributor under the class action settlement. If applicable, this credit would
    occur in the damages phase of the trial. It does not require or justify, on the
    question of apportionment, reducing the appellants recovery by the
    distributors percentage fault, as the trial judge did.

[64]

In
    my view, taken as a whole against the evidentiary background, the Pierringer
    Order and the amended statement of claim in the Hearsey Action do not require
    the appellants to reduce their claims against the hospital by the percentage
    fault of the manufacturer and the distributor, and thus improve the position of
    the hospital.

The Trial Judge Erred in Relying on
Taylor

[65]

The
    trial judge relied on this courts decision in
Taylor
as authority to
    apportion fault to non-parties. He stated that
Taylor
expressly
    determined that a court can apportion fault to a person who is not a party to
    an action. But the issue is not whether a court may do so, but under what
    circumstances a court should do so. The circumstances in
Taylor
were
    substantially different than those in the case at bar.

[66]

Taylor
concerned an attempt, by a defendant to a class action, to add third parties from
    whom the defendant wished to claim contribution and indemnity on the basis that
    their fault had contributed to each class members injury. In other words, due
    to the risk it could be made to pay 100 percent of the damages it wished to seek
    indemnity from the third parties for their proportion of fault. The plaintiff,
    however, made it clear by an amendment to the claim that the exposure of the
    defendant was limited to damages for which it could have no right of
    contribution, because all that was claimed were the damages that would be
    apportioned to the defendant given its relative degree of fault: see paras. 4
    and 11. This was done specifically to preclude the defendants attempt to
    assert a third party claim and with the intention that [t]he possibility of
    third party claims will be obviated: paras 9 and 10. Thus in
Taylor
the
    plaintiff amended her statement of claim to specifically state that she was not
    suing the defendant for anything other than the defendants proportionate share
    of fault, in circumstances that made it clear she was prepared to reduce the
    claim by the proportion of fault that would be attributed to the proposed third
    parties.

[67]

It
    was in that context that the court in
Taylor
held that fault could be
    apportioned at trial to the proposed third parties even though they were
    non-parties. This was essential to the courts holding that the third party
    claim was unnecessary. To protect the defendant, the reductions in the
    plaintiffs claim due to the fault of the proposed third parties would have to
    be calculated by determining their degree of fault. As the court in
Taylor
noted, considerations of encouraging settlements with non-parties or of simply
    allowing a plaintiff to streamline litigation by obviating third party claims,
    favoured an interpretation of the courts powers to apportion fault that is
    broad enough to permit apportionment to non-parties: see paras. 26 to 28.

[68]

The circumstances in
Taylor
were
    not present in the case at bar in so far as the manufacturer and distributor
    are concerned. As discussed in the section above, the settlement with the oral
    surgeons which gave rise to the Pierringer Order contemplated an apportionment
    of fault to, and a corresponding reduction of the claim for the fault of, the
    oral surgeons, not the manufacturer and distributor. The class action
    settlement with the distributor also does not contemplate such an apportionment
    and reduction. Nor did the appellants evince an intention to streamline the
    litigation by indicating they would reduce their claim for the fault of the
    distributor and manufacturer, as the plaintiff did in
Taylor
.

[69]

Taylor
does not stand for a proposition that is so broad that it would entitle the
    court in any case to apportion fault to non-parties, and reduce the plaintiffs
    recovery by that apportioned share of fault. That would be inconsistent with
    what the Supreme Court of Canada said in
Athey
and with s. 1 of the
Negligence
    Act
: namely, the general rule is that a wrongdoer is liable for 100
    percent of a plaintiffs injuries and wrongdoers are liable to contribute
between themselves
in accordance with their relative shares
    of fault. The approach in
Taylor
was context specific. And that
    context is not present here.

[70]

Accordingly,
    it was an error of law for the trial judge to apply
Taylor
as he did.

Conclusion on Apportionment

[71]

The
    appellants argued that if we agreed there was an error in the apportionment of
    fault to the manufacturer and distributor and the reduction of the appellants
    recovery as a result, we should remit that matter back to the trial judge. The hospital
    argued that if we found such an error, fault should be reapportioned 20% to the
    hospital and 80% to the oral surgeons. In other words, the relative assessment
    of fault as between the hospital and oral surgeons found by the trial judge
    should be maintained. The trial judge found the oral surgeons four times more
    at fault than the hospital.

[72]

I
    agree with the result proposed by the hospital. As discussed above, the
    underlying theory of contribution and indemnity is that a wrongdoer should be
    able to recover indemnity from another when the first has paid the plaintiff
    more than its proportionate share, assessed by their relative degrees of fault.
    Both the hospital and the oral surgeons were at risk before the Pierringer
    Order that one or the other would have to pay all of the appellants damages.
    They each had cross-claimed for indemnity from the other. And they were both in
    the same situation vis-à-vis the manufacturer and distributor  they had no
    claim or ability to recover indemnity from them regardless of their degree of
    fault.

[73]

The
    Pierringer Order was designed to protect the hospital from paying more than its
    proportionate share to the same degree as its prior cross-claim for indemnity
    against the oral surgeons. Given the findings of the trial judge, the hospital
    would be paying more than its proportionate share if it paid more of the total
    damages than its relative share of fault compared to the fault of the oral
    surgeons: namely, more than one fifth of the total fault attributed to the
    hospital and the oral surgeons combined. The judgment in the Hearsey Action
    should therefore be varied to reflect this.

(4)

The Costs Cross-Appeal

[74]

I
    would not give effect to the hospitals cross-appeal on costs. The hospital
    argues that an amount for HST is not included in the costs awards which the
    trial judge made after dismissing the Endean, Karam, and Lind Actions. In my
    view, the trial judge did not limit himself to a mechanical calculation of
    costs dependent on the inclusion or lack of inclusion of any specific item. In
    his reasons on costs, he stepped back to determine whether the amounts he
    calculated were reasonable given the magnitude of the matter and other relevant
    considerations: see para. 72. He was satisfied the amounts he awarded were
    reasonable. There is no error in principle justifying appellate intervention.

Conclusion

[75]

Accordingly,
    I would dismiss the appeals in the Endean, Lind and Karam Actions. I would allow
    the appeal in the Hearsey Action and vary para. 1 of the judgment in that
    action by replacing 5% with 20%. I would dismiss the hospitals cross-appeal.

[76]

The
    Hearsey appellants should have their costs of the appeal and cross-appeal fixed
    at $20,000 inclusive of HST and disbursements.

[77]

Success
    was divided between the hospital and the Endean, Karam and Lind appellants. I would
    not award any costs in the appeals or the cross-appeals in those actions.

Released: March 8, 2019 (P.R.)

B. Zarnett J.A.

I agree. Paul Rouleau J.A.

I agree. K. van Rensburg
    J.A.

SCHEDULE A


COURT OF APPEAL FOR ONTARIO

CITATION: Faas v. Centre for Addiction and Mental Health
    Foundation, 2019 ONCA 192

DATE: 20190311

DOCKET: C65576

Feldman, Roberts and Trotter JJ.A.

BETWEEN

Andrew Faas and The Faas Foundation

Applicants (Appellants)

and

Centre for Addiction and Mental Health Foundation
    and Centre for Addiction and Mental Health

Respondents (Respondents)

Ronald Lachmansingh and Tyler Murray, for the appellants

Rebecca Jones and Kelly Hayden, for the respondents

Heard: March 6, 2019

On appeal from the order of Justice Edward M. Morgan of
    the Superior Court of Justice, dated June 6, 2018, with reasons reported at
    2018 ONSC 3386.

REASONS FOR DECISION

[1]

The appellants agreed to make a significant charitable donation of one
    million dollars to the respondents  a mental health hospital and its
    fundraising arm (collectively CAMH)  for the express purpose of creating
    Well@Work, a workplace mental health program. The donation and the project were
    to take place over a three-year period. The parties entered a written Donor
    Investment Agreement, which set out the terms of the donation including provision
    for an annual status report to the donor.

[2]

The appellant, Mr. Faas, was not satisfied with the progress of the
    program, the extent of reporting, or the expenditure of the first one-third of
    the donation during the first year. He requested changes to the content of what
    was being developed as well as an accounting of CAMHs expenditures.
    Eventually, the parties reached an impasse and the appellant brought an
    application under s. 6 of the
Charities Accounting Act
, R.S.O. 1990,
    c. C.10. Subsections 6(1), (3) and (5) of that Act provide:

(1) Any person may
    complain as to the manner in which a person or organization has solicited or
    procured funds by way of contribution or gift from the public for any purpose,
    or as to the manner in which any such funds have been dealt with or disposed
    of.

(3) Wherever the judge
    is of opinion that the public interest can be served by an investigation of the
    matter complained of, he or she may make an order directing the Public Guardian
    and Trustee to make such investigation as the Public Guardian and Trustee
    considers proper in the circumstances.

(5) The cost of any
    such investigation, when approved by the Attorney General, forms part of the
    expenses of the administration of justice in Ontario.

[3]

The appellants application was based on the submission that it was in
    the public interest for the Public Guardian and Trustee (the PGT) to
    investigate whether CAMH used the appellants donation for the designated purpose
    that was agreed to in the Donor Investment Agreement. There was no suggestion
    that the respondent used the funds for purposes outside its own charitable
    objects.

[4]

The motion judge found that there were no grounds to order an
    investigation by the PGT, and that making such an order would serve no
    identifiable public interest: para. 67. He made the following findings, at
    paras 62-64 of his reasons:

[
62
]

As
    for Faas desire for an accounting in order to ensure that the funds have been
    properly spent, the Application is based on conjecture. No actual mischief has
    been identified, and no misuse of funds is apparent from the record. According
    to all of the relevant CAMH reports, the preparatory work was accomplished
    during the first year of the Well@Work program; the major expenses involved in
    those preparations were the salaries of the CAMH staff dedicated to the
    program.

[
63
] Absent evidence of financial misdeeds,
    Faas has no particular right to a detailed accounting of CAMHs program and its
    use of funds. Counsel for Faas argues that he does not know if there was
    mismanagement as it is not apparent what CAMH did with the first instalment of
    funds. He contends that Faas needs to invoke the PGTs authority to investigate
    in order to get to the bottom of a question to which Faas is incapable of
    obtaining the answer.

[
64
] The problem, however, is that the first
    instalment was, and was always intended to be, dedicated to preparatory work.
    Since the preparatory work was done in the first year, but the funding was
    prematurely cancelled in the second year, the implementation that was to follow
    all of that preparatory work never took place. Only the invisible part of the
    program had the chance to be accomplished. It is the non-payment of the second
    and third instalments that prevented the fruits of CAMHs initial years labour
    from being visible.

[5]

We see no error in these findings. The appellants argue that they were not
    able to show that there was mismanagement because the respondents refused to
    provide various documents and salary records that were requested on
    cross-examination of CAMHs witnesses for the purpose of the motion. However,
    the motion judge was satisfied on the record, based on the evidence from the
    respondents, that no mismanagement had occurred and that the funds were
    properly spent on the designated program. He was entitled to accept that
    evidence.

[6]

The appeal is therefore dismissed.

K.
    Feldman J.A.

L.B.
    Roberts J.A.

G.T.
    Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Faas v. Centre for Addiction and Mental Health
    Foundation, 2019 ONCA 206

DATE: 20190314

DOCKET: C65576

Feldman, Roberts and Trotter JJ.A.

BETWEEN

Andrew Faas and The Faas Foundation

Applicants (Appellants)

and

Centre for Addiction and Mental Health Foundation
    and Centre for Addiction and Mental Health

Respondents (Respondents)

Ronald Lachmansingh and Tyler Murray, for the appellants

Rebecca Jones and Kelly Hayden, for the respondents

Heard: March 6, 2019

On appeal from the order of Justice Edward M. Morgan of
    the Superior Court of Justice, dated June 6, 2018, with reasons reported at
    2018 ONSC 3386.

REASONS FOR DECISION

[1]

The amount of costs of the appeal that would be payable to the
    successful party was agreed at the hearing. As the respondents were successful,
    costs in the amount of $25,000 are payable to the respondents, inclusive of
    disbursements and HST.

K.
    Feldman J.A.

L.B.
    Roberts J.A.

G.T.
    Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Fraser v. United Steel Workers Union Local 2004,
    2019 ONCA 200

DATE: 20190313

DOCKET: C65614

Feldman, Roberts and Fairburn JJ.A.

BETWEEN

Ken
    Fraser

Appellant

and

United Steel Workers
    Union Local 2004

Respondent

Ken Fraser in person, assisted by Sandra Donney-Fraser

Daniel Sheppard and Charles Sinclair, for the respondent

Heard and released orally: March 8, 2019

On appeal from the
    judgment of Justice Gareau of the Superior Court of Justice, dated June 12,
    2018.

REASONS FOR DECISION

[1]

The appellant appeals from the decision of the motion judge that the
    Canada Industrial Relations Board has exclusive jurisdiction over his claim and
    therefore dismissing his action brought in the Ontario Superior Court. His
    claim is for redress from the actions the union took to discipline him
    following his allegations of financial and procedural improprieties on the part
    of the union. He submits that this is not the usual type of labour relations
    matter that is within the exclusive jurisdiction of the Board and that the
    motion judge erred in so finding.

[2]

We do not agree. We see no error in the analysis of the motion judge and
    his conclusions, particularly found at paras. 28 and 30 as follows:

28. In Mr. Frasers case, the
Canada Labour Code
provisions are designed to deal with the very internal dispute between union
    workers and the union which he raises and provides an adjudication process
    through the Canada Industrial Relations Board and remedy provisions.

30. As to whether the Ontario Superior Court of Justice has
    jurisdiction to hear the action commenced by Ken Fraser against the United
    Steelworkers Union Local 2004, my view is that this court does not have
    jurisdiction to hear that claim given the essential character of the claim
    and the statutory scheme in place under the provisions of the
Canadian
    Labour Code
.

[3]

The appeal is therefore dismissed. Costs are to be paid to the
    respondent in the amount of $1,500, inclusive of disbursements and HST.

K.
    Feldman J.A.

L.B.
    Roberts J.A.

Fairburn
    J.A.