COURT OF APPEAL FOR ONTARIO

CITATION: Ferreira v. St. Mary's General Hospital, 2018 ONCA
    247

DATE: 20180314

DOCKET: C64204

Juriansz, Miller and Nordheimer JJ.A.

BETWEEN

Fernando Ferreira

Applicant (Appellant)

and

St. Marys General Hospital and Dr. Christopher
    Hinkewich

Respondents

Jordan Palmer, for Georgiana Masgras, also acting in
    person

Daphne Jarvis, for the respondent, St. Marys General
    Hospital

Sarit Batner, for the respondent, Dr. Christopher
    Hinkewich

Heard: March 1, 2018

On appeal from the order of Associate Chief Justice Frank
    Marrocco of the Superior Court of Justice dated July 9, 2017 and of the costs
    order of Regional Senior Justice Harrison Arrell of the Superior Court of
    Justice dated November 28, 2017.

Nordheimer J.A.:

[1]

Ms. Masgras is a lawyer.  She purports to bring this appeal on behalf of
    Mr. Ferreira. As the background to this matter demonstrates, this is an unusual
    case that arises out of an unfortunate factual situation. The case revolves
    around a lawyers claim of authority to take steps on behalf of a client who is
    incapacitated. Mr. Ferreira was the client and Ms. Masgras was his lawyer. Ms.
    Masgras purports to appeal the order of Marrocco A.C.J.S.C. (the reviewing
    judge) as it relates to a decision to set aside an interim injunction that
    prohibited the removal of Mr. Ferreira from life support. She also appeals the
    costs order made against her personally by Arrell R.S.J. (the application
    judge). As I shall explain, while she has the right to do the latter, she does
    not have the right to do the former.

Background

[2]

In December 2016, Mr. Ferreira was in a motor vehicle accident. He
    retained Ms. Masgras in respect of his claims for compensation for neck and
    lower back pain and related injuries.

[3]

On July 3, 2017, Mr. Ferreira was quite unexpectedly found in cardiac
    arrest at his home. EMS personnel were able to restore his pulse, and brought
    him to St. Mary's General Hospital in Kitchener ("the Hospital"),
    where he was provided with life support in the Intensive Care Unit (ICU).

[4]

Over the following days, it became clear that Mr. Ferreira had suffered
    a very significant brain injury as a result of a lack of oxygen to his brain caused
    by the cardiac arrest. His condition continued to deteriorate in spite of the
    intensive care provided. There was no prospect of recovery.

[5]

After consultations with the physicians involved and Mr. Ferreiras
    family, on July 6, Mr. Ferreiras wife made the decision to remove Mr. Ferreira
    from life support. No family member, of the over 15 in attendance, nor any of
    the medical professionals, thought that this was the wrong medical decision or
    inconsistent with Mr. Ferreiras wishes.

[6]

As is legally required, the Trillium Gift of Life agency (TGOL) was
    contacted and advised of Mr. Ferreira's imminent death. Further discussions
    between TGOL and the family on July 7 led to a decision to offer organ
    donation. In coordination with TGOL, the withdrawal of life support was scheduled
    to take place in the morning of Saturday, July 8 to allow the broader family to
    gather to support each other and to pay their respects.

[7]

During this time, Ms. Masgras became aware of Mr. Ferreiras condition.
    Both she and her husband, a chiropractor who was treating Mr. Ferreira, contacted
    Mr. Ferreiras wife and urged her to reconsider the decision to remove Mr.
    Ferreira from life support. They also contacted members of Mr. Ferreiras
    family, through a friend of Mr. Ferreiras, to urge the same thing.
    Notwithstanding these entreaties from Ms. Masgras, the family did not change
    their minds.

[8]

Convinced that the decision to remove Mr. Ferreira from life support
    needed to be given further consideration, Ms. Masgras decided to bring an
    application for an interim injunction restraining the Hospital from withdrawing
    Mr. Ferreira from life support.

[9]

In furtherance of this application, at or around 7:00 p.m. on Friday,
    July 7, Ms. Masgras contacted the duty judge line for Central South Region. She
    was put in touch with a trial co-ordinator. When the trial co-ordinator learned
    of the relief being sought, she advised Ms. Masgras that the matter could be
    put in front of a judge immediately once the application materials were ready.
    She also told Ms. Masgras that she needed to serve the respondent with the
    application materials before it would be considered by a judge.

[10]

Ms.
    Masgras spent the next number of hours preparing the application materials.
    Around 3:00 a.m., she arranged to have some application materials served on a
    nurse at the ICU in the Hospital. The materials were then sent by email to the
    court. Ms. Masgras did not serve Mr. Ferreiras wife with the materials or advise
    her of the proposed application.

[11]

At
    approximately 9:00 a.m. on Saturday, July 8, Ms. Masgras re-attended at the ICU
    and advised the respondent, Dr. Christopher Hinkewich, the physician most
    responsible for Mr. Ferreira, that she had the application judge on the phone.
    She told Dr. Hinkewich that the application judge had made a verbal order not
    to remove Mr. Ferreira from life support.

[12]

In
    light of the verbal order, Dr. Hinkewich retained counsel. The TGOL physicians,
    who were there to perform the organ donations, left. The family were told of
    this development. They were upset and confused. Later that day, Ms. Masgras
    served the formal injunction order, and later that evening she served copies of
    her application record.

[13]

Mr.
    Ferreiras condition continued to deteriorate. Brain death seemed possible, and
    testing was initiated to determine whether it had occurred. If brain death had
    occurred, harm to Mr. Ferreiras organs preventing their donation was a real
    possibility. As a result, on Sunday, July 9, Dr. Hinkewichs counsel brought a
    motion to vary the injunction order.

[14]

The
    motion was heard that day by the reviewing judge on an urgent basis by
    telephone. Ms. Masgras participated in the motion, as did counsel for the
    Hospital and for Dr. Hinkewich. During the hearing, the court was advised that
    Mr. Ferreira had been declared brain dead. The reviewing judge set aside the
    interim injunction and dismissed the application. He ordered that the costs of
    the application, including the costs of the motion to vary, be reserved to the
    application judge.

[15]

The
    order of the reviewing judge was immediately communicated to the respondents.
    Mr. Ferreira was removed from life support and he passed away. The organ
    donation was accomplished.

[16]

On
    August 18, 2017, Ms. Masgras filed a notice of appeal from the order of the
    reviewing judge with this court. The notice of appeal seeks to have the order of
    the reviewing judge set aside. The notice of appeal also seeks a series of
    orders that are best described as declarations, including an order that Ms.
    Masgras had standing in the matter of whether Mr. Ferreiras life support
    system should be maintained or removed.

[17]

In
    light of the appeal, Ms. Masgras sought to adjourn the costs hearing that was
    scheduled to be heard before the application judge on October 11, 2017. Ultimately,
    the costs hearing was held on October 27. At that hearing, all counsel agreed
    that further oral submissions were not necessary and that the costs could be
    determined on the basis of the written materials.

[18]

The
    respondents sought their costs of the application on a substantial indemnity
    basis against Ms. Masgras personally. Dr. Hinkewich sought costs in the amount
    of $20,796.52. The Hospital sought costs in the amount of $20,048.46. On November
    28, 2017, the application judge awarded costs of $7,500 to each of the
    respondents, payable by Ms. Masgras personally.

[19]

In
    giving his reasons, the application judge said, at para. 29:

I am satisfied that the Respondents incurred costs needlessly
    as set out in Rule 57.07(1) as a result of the inappropriate application
    brought by Ms. Masgras who had no instructions, submitted misleading material
    to the court, and was at the very least negligent or mistaken in her
    preparation of the material submitted to me.

The Main Appeal

[20]

The
    main appeal, that is the appeal from the order of the reviewing judge, can be
    dealt with briefly. It cannot succeed for two fundamental reasons. First, Ms.
    Masgras had no instructions to bring this appeal. Indeed, she had no
    instructions to bring the underlying application. Further, the underlying application
    was stayed as a result of Mr. Ferreiras death by virtue of r. 11.01 of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194, unless and until an order to
    continue is granted under r. 11.02. No such order has ever been obtained.  Once
    death occurred, the right to bring this appeal vested in the estate trustee. Consequently,
    this appeal is improperly constituted as it has not been brought by the estate
    trustee nor has it been assigned by the estate trustee to Ms. Masgras.  As a
    result, the appeal must be quashed.  Alternatively, the underlying application
    must be dismissed pursuant to r. 15.02(4) as it was commenced without Mr.
    Ferreiras authorization.

[21]

Second,
    and in any event, as is apparent from the facts, the appeal is now moot. Even
    if Ms. Masgras could bring a successful appeal to set aside the reviewing judges
    order (and it would not be successful), the result would be of no moment given
    that the Mr. Ferreira is deceased. Further, there is no basis for this court to
    give the type of declaratory orders that are sought in the notice of appeal.

[22]

The
    main appeal must therefore be dismissed.

The Costs Appeal

[23]

I
    begin by noting that Ms. Masgras was given an indulgence by this court. She was
    allowed to wrap her costs appeal into her main appeal even though she did not
    seek leave to appeal the costs award as required by s. 133(b) of the
Courts
    of Justice Act
, R.S.O. 1990, c. C.43 and r. 61.03.1(17) of the
Rules
    of Civil Procedure
.

[24]

The
    costs decision directly engages the propriety of Ms. Masgras conduct
    throughout this entire proceeding. Ms. Masgras submits that she was entitled to
    take the steps that she did in obtaining the interim injunction, and then
    opposing the motion to set aside that order, and indeed then bringing an
    appeal, on the basis that she was obliged as Mr. Ferreiras personal injury
    lawyer in a separate matter, to protect his interests and further his cause.

[25]

In
    support of her position, Ms. Masgras relies on r. 3.2-9 of the
Rules of
    Professional Conduct

of the Law Society of Ontario, which reads:

When a client's ability to make decisions is impaired because
    of minority, mental disability, or for some other reason, the lawyer shall, as
    far as reasonably possible, maintain a normal lawyer and client relationship.

[26]

She
    also relies on commentary 3 to that Rule, but only on the final sentence that
    reads In any event, the lawyer has an ethical obligation to ensure that the
    client's interests are not abandoned. To put that statement into context, the
    whole of the commentary needs to be considered. The entirety of commentary 3
    reads:

A lawyer with a client under a disability should appreciate
    that if the disability of the client is such that the client no longer has the
    legal capacity to manage their legal affairs, the lawyer may need to take steps
    to have a lawfully authorized representative appointed, for example, a
    litigation guardian, or to obtain the assistance of the Office of the Public
    Guardian and Trustee or the Office of the Children's Lawyer to protect the
    interests of the client. In any event, the lawyer has an ethical obligation to
    ensure that the client's interests are not abandoned.

[27]

Ms.
    Masgras did not take any steps to have an authorized representative appointed.
    Indeed, it is not apparent on the record that Ms. Masgras sought or obtained
    any form of instructions from any next of kin of Mr. Ferreira, most notably,
    his wife. I note, on this point, that under the
Health Care Consent Act,
    1996
,
S.O. 1996, c. 2, Sched. A, s. 20, if a person is incapable
    with respect to treatment, consent may be given by a person designated in the
    section, one of which is the incapable persons spouse.

[28]

In
    fact, rather than attempting to obtain instructions from a next of kin, what is
    clear on the record is that Ms. Masgras acted in a manner that contravened the
    wishes of Mr. Ferreiras next of kin without ever advising Mr. Ferreiras wife,
    or any other member of his family, of her intended actions. More specifically,
    Ms. Masgras never told any member of Mr. Ferreiras family, that she intended
    to go to court and obtain an injunction to restrain the family from doing what
    they had decided to do, that is, to remove Mr. Ferreira from life support.

[29]

Ms.
    Masgras contends that her perceived obligation to protect Mr. Ferreira gave her
    the right to act in such a fashion. In addition to her reliance on the
Rules
    of Professional Conduct
,

to which I have referred above, Ms.
    Masgras also relies on the decision in
Canada (Attorney General) v.
    Federation of Law Societies of Canada
, 2015 SCC 7, [2015] 1 S.C.R. 401. In
    particular, Ms. Masgras relies on the various references in that decision to
    the lawyers duty of commitment to the clients cause.

[30]

Ms.
    Masgras fundamentally misunderstands the principles enunciated in that case. That
    decision does not support Ms. Masgras proposition that a lawyer is entitled to
    take whatever steps s/he wishes in furtherance of what the lawyer thinks is the
    clients cause. What Ms. Masgras appears not to understand is the fundamental
    principle that lawyers must act in accordance with the instructions of their
    clients.
[1]
Lawyers do not have a
carte blanche
to take steps of their own volition
    under the guise of furthering the clients perceived cause. In particular,
    lawyers do not have the right to institute proceedings without being armed with
    instructions from their clients to do so.

[31]

Simply
    put, Ms. Masgras had no authority to take the steps that she did. In doing so,
    Ms. Masgras breached the basic principles that apply to the conduct of lawyers,
    particularly their duty to act honourably.

[32]

In
    my view, that conclusion is sufficient to dispose of Ms. Masgras costs appeal
    against the application judges order requiring her to personally pay the costs
    of the injunction application. It is worth repeating that Ms. Masgras launched
    the application for an interim injunction without instructions. She did so
    without advising Mr. Ferreiras family of her intentions to do so. She also
    obtained the interim injunction without first giving any notice of her
    intentions to the Hospital or to the physician treating Mr. Ferreira, save and
    except for serving the application materials on a nurse in the ICU at 3:00 in
    the morning on the day that she obtained the
ex parte
injunction.
    Further, she obtained the extraordinary injunctive relief based on what the
    application judge found to be misleading material.

[33]

Ms.
    Masgras submits that her actions were undertaken in good faith and thus do not
    rise to the level necessary to warrant a costs award against her personally. In
    support of her submission, she points to the decision in
Quebec (Director
    of Criminal and Penal Prosecutions) v. Jodoin
, 2017 SCC 26, [2017] 1
    S.C.R. 478.

[34]

It
    is not clear to me how Ms. Masgras derives any support for her position from
    the decision in
Jodoin
. The authority of a court to award costs
    against a lawyer personally was reviewed in that decision. The general
    requirement was stated by Gascon J., at para. 29:

In my opinion, therefore, an award of costs against a lawyer
    personally can be justified only on an exceptional basis where the lawyer's
    acts have seriously undermined the authority of the courts or seriously
    interfered with the administration of justice.

[35]

In
    my view, the facts of this case amply establish that Ms. Masgras actions
    seriously interfered with the administration of justice. She acted without
    instructions. She acted in a manner that was directly contrary to the wishes of
    Mr. Ferreiras family. And she did so when one of the most difficult, emotional,
    and personal of decisions was being undertaken by them. Further, Ms. Masgras
    actions potentially interfered with the ability of another individual to
    receive what might well have been a life-saving organ transplant. Ms. Masgras
    misused the court process and, in doing so, she brought the integrity of the administration
    of justice into disrepute. On this point, I refer to rule 2.1-1 of the
Rules
    of Professional Conduct
which reads:

A lawyer has a duty to carry on the practice of law and
    discharge all responsibilities to clients, tribunals, the public and other
    members of the profession honourably and with integrity.

[36]

Ms.
    Masgras contends that she was just trying to protect her client and to ensure
    that all available information was considered and reviewed by an independent
    party, namely a judge, before the decision to remove Mr. Ferreira from life
    support was taken. Even if one could accept the
bona fides
of Ms.
    Masgras intentions, that objective had been met once the matter was before the
    reviewing judge. Yet Ms. Masgras did not let the matter go. Rather, she opposed
    the motion to set aside the interim injunction and she then appealed the
    reviewing judges decision. Indeed, she told the reviewing judge, right after
    he announced his decision, that she intended to appeal it. It is readily
    apparent from her conduct in this regard that Ms. Masgras was not interested in
    an independent review. Rather, she was intent on achieving her own personal
    objective.

[37]

As
    a final defence, Ms. Masgras raises various procedural complaints with respect
    to the manner in which the costs hearing took place. Specifically, she says
    that she was not made fully aware that costs would be sought against her
    personally and she was not present when the costs issue was determined. On
    the first point, the record clearly establishes that Ms. Masgras knew that
    costs were being sought against her personally. Indeed, her own costs
    submissions directly address that prospect. On the second point, Ms. Masgras
    agreed with the other counsel, after the costs hearing had been adjourned at
    least twice, that the application judge could proceed to determine the costs
    based on the written material. She cannot now complain about the process that
    she consented to.

[38]

Finally,
    in making the costs award against Ms. Masgras, the application judge considered
    the appropriate principles. There is no foundation for any challenge to his
    conclusion that Ms. Masgras conduct warranted a costs award against her
    personally. In fact, the application judge was more than generous towards Ms.
    Masgras, given her conduct, in fixing the costs in the amounts that he did. Ms.
    Masgras was entirely responsible for all of the costs incurred by Dr. Hinkewich
    and the Hospital. In my view, an order awarding them costs on a full indemnity
    basis would have been justified.

[39]

Nevertheless,
    Ms. Masgras was not deterred. Rather than learning her lesson, she continued
    with the main appeal. As should be apparent from the above, there was no merit
    to the main appeal as there is no merit to the costs appeal. I would dismiss
    Ms. Masgras appeal of the costs award.

[40]

The
    respondents are entitled to their costs of the appeals on a substantial
    indemnity basis given the conduct of Ms. Masgras. Ms. Masgras will personally
    pay the costs of the Hospital and Dr. Hinkewich. I would fix the costs of the
    Hospital at $19,885.74 and the costs of Dr. Hinkewich at $11,642.00. Both
    amounts are inclusive of disbursements and HST.

Released: RGJ MAR 14 2018

I.V.B. Nordheimer J.A.

I agree. R.G. Juriansz J.A.

I agree. B.W. Miller J.A.

[1]

I recognize that there are certain exceptions to the rule that
    lawyers must follow the instructions of their clients but those exceptions are
    not engaged in this case.


COURT OF APPEAL FOR ONTARIO

CITATION: Froehlich-Fivey v. Fivey, 2018 ONCA 214

DATE: 20180302

DOCKET: C62623

Juriansz, Miller and Nordheimer JJ.A.

BETWEEN

Carolina Froehlich-Fivey

Applicant (Appellant)

and

Jeffrey Richard Fivey

Respondent

D. Andrew Thomson, for the appellant

David Williams, for the respondent

Heard and released orally: February 28, 2018

On appeal from the judgment of Justice Edward J. Koke of
    the Superior Court of Justice, dated July 22, 2016.

REASONS FOR DECISION

[1]

The appellant appeals from the trial judgment where equalization amounts
    were calculated along with spousal and child support.

[2]

The appellant first sought to adduce fresh evidence consisting of a
    psychiatric report for one of the children on the issue of whether she
    continues to be a dependant.

[3]

Even if we were to accept the fresh evidence, we would not rule on it.
    The appropriate remedy is to seek to vary the judgment under s. 37(2.1) of the
Family
    Law Act
, R.S.O. 1990, c. F.3
which
    expressly allows a court to vary an earlier order if the court is satisfied
    that evidence not available on the previous hearing has become available.

[4]

With respect to the merits of the appeal, the standard of review is a
    stringent one.  As this court said in
Slaughter v. Slaughter
, 2013
    ONCA 432, at para. 6:

The decision of the judge below is entitled to deference on
    appeal and the standard of review is designed to promote finality in family law
    litigation and to recognize the importance of the motion judges appreciation
    of the facts.

It is only where the judges decision exceeds a generous ambit
    within which reasonable disagreement is possible and is plainly wrong then an
    appellate court is entitled interfere.

[5]

In our view, the appellant has failed to meet this test. While the
    appellant attempts to clothe her challenges as errors in law, that attempt does
    not succeed.

[6]

She complains about the imputation of income to her but the trial judge
    gave proper reasons for doing so. She also complains about the valuation of the
    respondents business but that issue was resolved by the trial judge on the
    basis that he preferred the evidence of the respondents expert over that of
    the appellant. Again, the trial judge was entitled to make that choice.

[7]

Boiled down to its essence, the appellant is challenging the factual
    findings that the trial judge made. It is not the role of this court to re-find
    facts. Absent a clear error in principle, this court should not interfere.

[8]

The appeal is dismissed. Costs are awarded to the respondent fixed in the amount of $18,953.55 all-inclusive.

R.G. Juriansz J.A.

B.W. Miller J.A.

I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Growthworks Commercialization Fund Ltd., v.
    Growthworks WV Management Ltd., 2018 ONCA 233

DATE: 20180309

DOCKET: C64357 & C64358

Epstein, van Rensburg and Brown JJ.A.

BETWEEN

Growthworks Commercialization Fund Ltd.

Applicant/Respondent by counter-application (Respondent)

and

Growthworks WV Management Ltd.

Respondent/Applicant
    by counter-application (Appellant)

Melvyn Solmon and Cameron Wetmore, for the appellant

Geoff R. Hall and Emily M. MacKinnon, for the respondent

Heard and released orally: March 7, 2018

On appeal from the judgment of Justice Ruth E. Mesbur of
    the Superior Court of Justice, dated August 23, 2017, with reasons reported at 2017
    ONSC 5009.

REASONS FOR DECISON

[1]

This case involves the
    interpretation of the appellants management agreement for the respondents investment
    fund and that part of the funds restated articles of incorporation concerning
    the rights attached to the Class C shares.

[2]

Both parties agree that the applicable standard of review is the
    deferential standard set out in
Sattva Capital Corp. v. Creston Moly Corp
., 2014 SCC 53, [2014] 2 S.C.R. 633
.
This court will not interfere with the application judges decision absent a
    palpable and overriding error or extricable error in law.

[3]

We are of the view that the
    application judge made no such errors in concluding that the payment the
    appellant made to itself was an undeclared performance dividend that was
    unauthorized and illegitimate. The application judges interpretation that
    nothing in the funds articles converts the performance dividend into debt is a
    reasonable one. In addition, we are not persuaded that the application judge
    failed to read the provisions regarding the Class C shares as a whole, or that
    she failed to give effect to any term in s. 4.7, the operable provision.

[4]

The appeal is therefore dismissed.
    Costs are awarded to the respondent on a partial indemnity basis fixed in the
    amount of $20,000 all-inclusive.

Gloria Epstein J.A.

K. van Rensburg J.A.

David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Hammoud (Re), 2018 ONCA 317

DATE: 20180328

DOCKET: C63919

Feldman, Watt and Paciocco JJ.A.

IN THE MATTER OF:  Iman Hammoud

AN APPEAL UNDER PART XX.1 OF THE
CODE

Michael Davies, for the appellant

Jacquie Dagher, for Royal Ottawa Mental Health Centre

Molly Flanagan, for the Attorney General

Heard: March 16, 2018

On appeal from the disposition of the Ontario Review
    Board dated, May 2, 2017.

REASONS FOR DECISION

On July 12, 2001 the appellant was found NCRMD on several
    charges arising out of harassing and threatening conduct. She is presently
    subject to a disposition of the Ontario Review Board issued on May 2, 2017
    detaining her in the Secure Forensic Unit of the Royal Ottawa Mental Health
    Centre with conditions including community living in accommodation approved by
    the person in charge of the hospital.

[1]

The appellant, who is 59 years of age, meets the diagnostic criteria for
    Schizoaffective Disorder. She continues to lack insight into her illness and
    lacks the capacity to consent to treatment for her illness.

[2]

On appeal, the appellant advances a single claim of error. She submits
    that the Board failed to conduct its analysis of the significant threat
    threshold in accordance of the requirements of
Winko v. British Columbia
    (Forensic Psychiatric Institute)
, [1999] 2 S.C.R. 625.

[3]

The appellant says that the significant threat threshold is onerous.
    The Board must be satisfied on the basis of the evidence adduced at the hearing
    that threat posed is significant, not only in the sense that there must be a
    real risk of physical or psychological harm occurring to individuals in the
    community, but also in the sense that this potential harm must itself be
    serious. The conduct or activity creating the harm must also be criminal in
    nature.

[4]

In this case, according the appellant, there is no basis upon which an
    inference or conclusion that the appellant presented a significant threat of
physical
harm

to others. And as for a significant threat of psychological
    harm, the appellant argues, the evidentiary cupboard is equally bare. The
    appellant acknowledges that her behaviour is bothersome, but it is neither
    criminal nor seriously harmful.

[5]

The Board expressed its conclusion on the significant threat issue in
    these terms:

That finding is based on the fact that Ms. Hammoud has suffered
    from Schizoaffective Disorder for more than 30 years and that she has engaged
    in behaviour over the years that is both harassing and threatening, clearing
    causing psychological harm to those persons who have been subject of her
    harassment. This is not simply trivial or bothersome behaviour, and it has been
    criminal nature in the past. Ms. Hammoud has no insight into her mental illness
    and has been consistently resistant to accepting medication for the treatment
    of that illness. It is clear that she would discontinue treatment if given the
    opportunity to do so.

[6]

Section 672.5401 defines what constitutes a significant threat to the
    safety of the public as a risk of serious physical or psychological harm to
    members of the public  including any victim of or witness to the offence - resulting
    from conduct that is criminal in nature but not necessarily violent.

[7]

The significant threat threshold involves an onerous standard. To find
    a significant threat to the safety of the public, the Board must be satisfied
    both as to the existence and gravity of physical or psychological harm posed by
    an NCR accused. Said in another way, there must be a serious risk of serious
    harm from criminal conduct:
Carrick, Re,
2015 ONCA 866, at para. 17;
Wall,
    Re,
2017 ONCA 713, at para. 26.

[8]

A careful review of the entirety of the Reasons for Disposition
    delivered by the Board fails to persuade us that the Board conducted the
    required analysis either of the risk of psychological harm or of the potential
    gravity of that risk.

[9]

There was no doubt that for three decades the appellant has suffered, as
    she continues to suffer, from a serious mental disorder. Equally, there was no
    doubt that, presented with the opportunity to do so, the appellant would
    discontinue her medication. But these are not the risks at which the
    significant threat threshold in s. 672.5401 is directed. In our view, read as
    a whole, the reasons of the Board reveal legal error  the failure to apply the
    proper test for significant threat to the safety of the public to the
    evidence adduced at the hearing.

[10]

For
    these reasons, the appeal is allowed. The disposition set aside, and a new
    hearing directed before a differently constituted Board.

K.
    Feldman J.A.
David Watt J.A.
David M. Paciocco J.A.


COURT OF APPEAL
    FOR ONTARIO

CITATION: Hampton Securities Limited v. Dean, 2018 ONCA 262

DATE: 20180316

DOCKET: M48840 (C64908)

Fairburn J.A. (Motions Judge)

BETWEEN

Hampton Securities Limited

Appellant (Moving Party)

and

Christina Nicole Dean

Respondent (Responding Party)

Sara J. Erskine and David Barbaree, for the moving party

Christopher J. Somerville and Daphne Hooper, for the
    responding party

Heard: February 27, 2018

COSTS ENDORSEMENT

[1]

On March 2, 2018, I dismissed the appellants motion for a stay pending
    appeal of a mandatory order to amend a Notice of Termination filed with the
    Investment Industry Regulatory Organization of Canada:
Hampton Securities
    Ltd. v. Dean,
2018 ONCA 216. The court invited written costs submissions.
    The submissions have been received and reviewed. The parties are agreed that
    costs should be fixed in the amount of $3,500.00. They part company on the entitlement
    to costs.

[2]

The respondent maintains that she was successful on the motion and that
    costs should be paid in the normal course, within 30 days.

[3]

The appellant advances four reasons for why it says that the entitlement
    to costs should be left to the panel hearing the appeal. The appellants reasons
    are catalogued in italics below, along with my reasons for rejecting them. The
    appellant maintains as follows:

(1)

If the appellant succeeds
    on appeal, it will demonstrate that the mandatory order to amend was made in
    error.

This reasoning conflates the
    success on a motion with the merits of an appeal. Parties do not enjoy
ex
    post facto
success on a motion only because they succeed on appeal. If this
    position were to be accepted, then all costs arising from motions would await
    the outcome of the appeal. The success of the motion is assessed at the time
    that the motion is decided. The respondent was clearly successful on this
    motion.

(2)

The appellant had to
    bring the motion out of concern that the appeal would be rendered moot if it
    failed to do so.  By bringing the motion, the appellant argues that they now
    know that the appeal is not moot.

The appellants concern about
    mootness was unfounded and the issue was decided against them. In any event,
    there was no need for a pre-emptive order dealing with this issue. Even if the
    respondent raised a concern about mootness during the appeal proper, the
    appellant could have responded to the argument then.

(3)

The appellant argues
    that the respondents counsel made inappropriate allegations about the appellant
    and the appellants counsel and that the court should distance itself from the
    respondents counsels conduct.

Although I recall a brief comment during
    oral submissions of the variety alleged, the court interjected immediately and
    counsel moved on. As for the respondents comments about the appellant, they
    are rooted in the trial judges findings of fact.

(4)

The appellant relies on
    a suggestion that the respondent has disclosed an arrangement with her counsel
    whereby her counsel only collects fees when court orders are paid. Embedded in
    this argument seems to be a suggestion that because the respondent will not be
    out of pocket if the costs are not paid, there is no rush to pay them.

This argument is without merit. Regardless
    of the arrangements between counsel and client, counsel need to be paid for
    their work.

[4]

There is no reason to delay the payment of costs. Accordingly, the
    respondent is entitled to her costs of the motion fixed at $3,500 to be paid
    within 30 days of the date of this order.

Fairburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Handley Estate v. DTE Industries Limited, 2018 ONCA
    324

DATE: 20180329

DOCKET: C64227

Hoy A.C.J.O., Simmons and Brown JJ.A.

BETWEEN

Helen Handley, deceased, by her Estate Executor
    Sharon Kruger

Plaintiff (Respondent)

and

DTE Industries Limited,
H&M Combustion
    Services Ltd.
,
Geo. Williamson Fuels Ltd
.
    and Ultramar Fuels Ltd.

Defendants (
Appellant
) (
Respondent
)

and

Kawartha Lakes HVAC Inc., Don Park Inc. and SLM
    Toronto Inc.

Third Parties

Donald Dacquisto and Eric Zadro, for the appellant

Sean Dewart and Mathieu Bélanger, for the Lawyers Professional
    Indemnity Company, on behalf of the respondents

Heard: February 13, 2018

On appeal from the order of Justice Stephen T. Bale of
    the Superior Court of Justice, dated July 17, 2017, with reasons reported at
    2017 ONSC 4349.

BROWN J.A.:

I.

OVERVIEW

[1]

This appeal concerns whether the failure to disclose immediately an
    agreement between or amongst parties to a lawsuit that converts their
    adversarial relationship into a co-operative one ordinarily should result in
    the stay of the non-disclosing partys claim.

[2]

In this 2009 action, the plaintiff entered into litigation agreements
    with one of the defendants, H&M Combustion Services Ltd. (H&M). Under
    the 2011 agreement, H&M agreed to defend the action and commence a third
    party claim, which the plaintiff would fund. Under the 2016 agreement, H&M
    assigned all its interest in the lawsuit to the plaintiff, who indemnified
    H&M from any exposure in the litigation and undertook to prosecute the
    third party claim.

[3]

Neither the plaintiff nor H&M disclosed the agreements to the other
    parties immediately upon their execution. They were disclosed in a piecemeal
    fashion throughout 2016.

[4]

One of the defendants, Geo. Williamson Fuels Ltd. (Williamson), moved
    to stay the action on the basis that the plaintiff and H&M had failed to
    comply with the obligation of immediate disclosure set out in the decision of
    this court in
Aecon Buildings v. Stephenson Engineering Limited
, 2010
    ONCA 898, 328 D.L.R. (4th) 488, leave to appeal refused, [2011] S.C.C.A. No. 84.

[5]

The motion judge held that the 2011 and 2016 litigation agreements
    should have been disclosed. However, he refused to stay the action concluding,
    in effect, that the late disclosure of the agreements had not caused Williamson
    any prejudice.

[6]

Williamson appeals. I would grant the appeal. Having found that the
    agreements were of the type requiring immediate disclosure under the principles
    set out in
Aecon
, the motion judge erred in principle by failing to
    apply the remedy for such non-disclosure specified in
Aecon
 staying
    the claim of the non-disclosing party.

II.

THE HISTORY OF THE LITIGATION

[7]

In 2004, Helen Handley bought a new outdoor oil tank for her residence. She
    alleged that in 2007 she discovered that it had leaked, discharging several
    hundred litres of fuel oil into the surrounding soil. This litigation ensued.

[8]

In 2009, Ms. Handleys insurer, Aviva Insurance Company of Canada (Aviva),
    commenced this subrogated claim in the name of Ms. Handley against those
    involved: (i) in the sale and installation of the oil tank  DTE Industries
    Limited (DTE) and H&M; and (ii) in the delivery of fuel oil to the tank
    Williamson and Ultramar Ltd. Since this is a subrogated claim, I will refer to
    Aviva as if it were the plaintiff throughout these reasons.

The 2011 Litigation Agreement

[9]

H&M had been dissolved in 2007. Aviva was aware of that fact; the
    statement of claim pleaded it. As well, H&M was not insured.

[10]

Aviva
    had not named as defendants in the main action one of the oil tank vendors in
    the supply chain, Kawartha Lakes HVAC Inc. (Kawartha Lakes), and its
    corporate successors, Don Park Inc. and SLM Toronto Inc. By the time it decided
    to sue Kawartha Lakes, the limitation period for the main action had expired.
    Aviva decided to explore initiating a third party claim against Kawartha Lakes.

[11]

Starting
    in the spring of 2011, as the deadline for issuing a third party claim approached,
    counsel for Aviva and H&M discussed striking a litigation agreement. Under
    the resulting August 10, 2011 agreement amongst Aviva, H&M, and H&Ms
    principal, Jim Richards (the 2011 Litigation Agreement), Aviva agreed to
    provide financial support to H&M to prosecute a third party claim. The key
    terms of the agreement were that:

(i)      H&M
    would defend the main action and commence the third party claim;

(ii)      Aviva
    would contribute $5,000 to cover H&Ms costs of prosecuting the third party
    claim through the examinations for discovery;

(iii)     Richards
    would revive H&M should that be necessary to prosecute the third party
    claim; and

(iv)     All
    communications between counsel for Aviva and H&M pertaining to the
    prosecution of the third party claim would be subject to common-interest privilege.

[12]

On
    August 24, 2011, H&M filed its statement of defence and cross-claim and
    issued the third party claim against Kawartha Lakes and its successors. H&M
    cross-claimed against Williamson, and Williamson cross-claimed against H&M.

[13]

At
    the time, neither Aviva nor H&M disclosed the 2011 Litigation Agreement to
    the other parties. Disclosure was not made until the fall of 2016.

The 2016 Litigation Agreement

[14]

The
    litigation moved slowly ahead. In May 2012, the third parties delivered
    statements of defence to the main action and third party action. They then sought
    security for costs from H&M.

[15]

In
    early 2013, H&M agreed to post security of $20,000 for costs through
    discoveries. Aviva provided H&M with the required funds, a fact not
    disclosed to the other parties.

[16]

Examinations
    for discovery were conducted throughout 2013 and 2014.

[17]

In
    January 2016, the third parties proposed a settlement to H&M, which
    forwarded the proposal to Avivas counsel advising it would await Avivas
    direction before responding. In the result, H&M rejected the settlement
    proposal.

[18]

In
    late February 2016, the third parties scheduled a motion to: (i) amend their
    defence to plead the expiration of the limitation period by reason of H&Ms
    status as a dissolved corporation; and (ii) increase the security for costs
    posted by H&M.

[19]

In
    early March, the court assigned a November 2016 trial date.

[20]

That
    activity led Aviva and H&M to conclude a further litigation agreement on
    March 7, 2016 (the 2016 Litigation Agreement), which was in two parts: (i) a letter;
    and (ii) an e-mail. Under the 2016 Litigation Agreement:

(i)

H&M assigned to Aviva all its rights in the action, including the
    rights to receive all proceeds from the third party claim;

(ii)

Aviva agreed to indemnify H&M and Richards against all costs and
    damages that might be awarded against H&M;

(iii)

Aviva would assume responsibility for defending H&M and prosecuting
    its third party claim;

(iv)

Aviva assumed responsibility for all reasonable costs and disbursements
    incurred by H&Ms counsel but reserved the right to appoint its own
    counsel; and

(v)

The parties would disclose the assignment to the other parties if
    required by law or reasonably necessary in the circumstances.

[21]

As
    a result, for all intents and purposes Aviva stepped into the litigation shoes
    of H&M.

The slow disclosure of the litigation agreements

[22]

On
    March 7, 2016, counsel for H&M advised the third parties that Aviva had
    undertaken to pay any costs assessed against H&M. No further disclosure of
    the terms of the 2011 and 2016 Litigation Agreements was made. However, that
    limited disclosure resolved the third parties motion for security for costs.

[23]

Later
    in March, counsel for Williamson made an overture to H&M to jointly retain
    a damages expert. H&M declined, disclosing it had assigned its rights in
    the third party proceeding to the plaintiff and that the interest of both the
    Plaintiff and H&M are aligned. At the end of March, Avivas counsel sent the
    other parties a copy of the part of the 2016 Litigation Agreement contained in
    the letter; the part contained in the e-mail was not sent.

[24]

Further
    correspondence ensued in April and May 2016, with counsel for the third parties
    pointing out to Aviva its obligation to disclose immediately any litigation
    agreement.

[25]

In
    early August 2016, Aviva produced the 2016 Litigation Agreement; the 2011 one
    was not disclosed. Yet more correspondence amongst counsel ensued.

[26]

The
    third parties moved to adjourn the trial and compel the delivery by Aviva and
    H&M of a further affidavit of documents containing a Schedule B that
    particularized the documents over which privilege was claimed. Avivas counsel
    thereupon delivered a proper affidavit of documents, which identified on
    Schedule B the 2011 and 2016 Litigation Agreements. The third parties motion
    settled, with Aviva and H&M agreeing to produce the Schedule B documents
    and waive any common interest privilege. Aviva ultimately produced all the
    litigation agreements by late October 2016.

[27]

At
    that point, Williamson and the third parties moved for an order staying the
    action on the basis that Aviva and H&M had failed to disclose immediately agreements
    that affected the litigation landscape, contrary to the principles set down
    by this court in
Aecon
.

[28]

The
    third party action settled on the eve of the motion hearing; only Williamsons
    motion to stay proceeded.

III.

THE REASONS OF THE MOTION JUDGE

[29]

Before
    the motion judge, Aviva conceded the 2016 Litigation Agreement should have been
    disclosed immediately upon completion. However, it submitted the 2011
    Litigation Agreement was merely a funding agreement that did not require
    disclosure. The motion judge disagreed, holding that the 2011 Litigation Agreement
    did not maintain adversity between Aviva and H&M and, therefore, should have
    been disclosed to all parties immediately upon completion.

[30]

Notwithstanding
    that finding, the motion judge refused Williamsons request for a stay of the
    action. He distinguished
Aecon
. In his view, since the litigation
    agreement in
Aecon
was between the plaintiff and the sole defendant,
    and the stay granted affected only third and fourth party claims,
Aecon
did not stand for the proposition that the claims against all parties to the litigation
    should automatically be stayed: at paras. 44-45.

[31]

Instead,
    the motion judge drew on this courts decision in
Abarca v. Vargas
,
    2015 ONCA 4, 123 O.R. (3d) 561, to hold that the principle of proportionality
    should inform the consideration of the remedy for the failure to disclose the
    2011 and 2016 Litigation Agreements. The motion judge appeared to conclude that
    Williamson suffered no prejudice from the delayed disclosure for two reasons:
    (i) as a supplier of the oil in the tank, and not the tank, Williamson was
    unaffected by the third party claim, which was against an entity in the tank
    supply chain (notwithstanding that H&M and Williamson had cross-claimed
    against each other); and (ii) there was no reason for Williamson to spend money
    litigating the third party claim because H&M had been a dissolved
    corporation throughout. In those circumstances, the motion judge concluded that
    a stay of the action against Williamson would not be an appropriate remedy.

IV.

THE ISSUE IN DISPUTE ON THIS APPEAL

[32]

The
    parties do not dispute the motion judges finding that the 2011 and 2016
    Litigation Agreements should have been disclosed immediately because they
    changed the adversarial relationship between Aviva and H&M.

[33]

Their
    dispute centres on the appropriate remedy for such non-disclosure. Williamson submits
    the principle in
Aecon
is clear: where such an agreement is not
    disclosed immediately, an abuse of process has occurred, with the result the
    claim of the defaulting party should be stayed. The motion judge erred in law
    in failing to grant a stay.

[34]

Aviva
    responds that a stay is a discretionary remedy. Accordingly, deference must be
    given to the motion judges exercise of his discretion not to stay the action
    in the particular circumstances of this case.

V.

ANALYSIS

The obligation of immediate disclosure

[35]

Since
    at least the 1993 decision in
Pettey v. Avis Car Inc.
(1993), 13 O.R.
    (3d) 725 (Gen. Div.), the law in Ontario has been clear that
Mary Carter-
type
    agreements
[1]
must be disclosed to the court and to the other parties to the lawsuit as soon
    as the agreement is made.

[36]

In
    the 2009 decision in
Laudon v. Roberts
, 2009 ONCA 383, 249 O.A.C. 72,
    at para. 39, leave to appeal refused, [2009] S.C.C.A. No. 304, this court
    repeated the obligation to disclose such an agreement to the court and to the other
    parties to the lawsuit as soon as it is concluded. That disclosure
    obligation, and its rationale, were explained by this court at para. 39 of its
    reasons:

The existence of a [
Mary Carter
agreement]
    significantly alters the relationship among the parties to the litigation.
    Usually the position of the parties will have changed from those set out in
    their pleadings. It is for this reason that the existence of such an agreement
    is to be disclosed, as soon as it is concluded, to the court and to the other
    parties to the litigation.  The reason for this is well stated in [
Pettey
,
    at pp. 737-738]:

The answer is obvious. The agreement must be disclosed to
    the parties and to the court as soon as the agreement is made.
The
    non-contracting defendants must be advised immediately because the agreement
    may well have an impact on the strategy and line of cross-examination to be
    pursued and evidence to be led by them
.  The non-contracting parties must
    also be aware of the agreement so that they can properly assess the steps being
    taken from that point forward by the plaintiff and the contracting defendants.
    In short, procedural fairness requires immediate disclosure.
Most
    importantly, the court must be informed immediately so that it can properly
    fulfil its role in controlling its process in the interests of fairness and
    justice to all parties
. [Emphasis added.]

[37]

One
    year later in
Aecon
, this court considered an agreement between the
    plaintiff, Aecon, and the sole defendant, the City of Brampton, that capped the
    damages for which Brampton might be liable to Aecon. Those parties did not
    disclose their agreement to the third and fourth parties until several months
    after its conclusion. This court held that agreements which change entirely
    the landscape of the litigation must be disclosed immediately, stating, at para.
    13:

We do not endorse the practice whereby such agreements are
    concluded between or among various parties to the litigation and are not
    immediately disclosed.  While it is open to parties to enter into such
    agreements, the obligation upon entering such an agreement is to
immediately
inform all other parties to the litigation as well as to the court
The reason for this is obvious. Such agreements
    change entirely the landscape of the litigation
.
[Italics in
    original and underlining added.]

[38]

In
Aecon
, the failure of the plaintiff and defendant to disclose
    immediately their litigation agreement led this court to stay the third and
    fourth party proceedings.

Litigation agreements covered by the obligation of immediate
    disclosure

[39]

The
    obligation of immediate disclosure is not limited to pure
Mary Carter
or
Pierringer
[2]
agreements. The disclosure obligation extends to any agreement between or
    amongst parties to a lawsuit that has the effect of changing the adversarial
    position of the parties set out in their pleadings into a co-operative one:
Aviaco
    International Leasing Inc. v. Boeing Canada Inc
. (2000), 9 B.L.R. (3d) 99 (Ont.
    S.C.), at para. 23. To maintain the fairness of the litigation process, the
    court needs to know the reality of the adversity between the parties and
    whether an agreement changes the dynamics of the litigation or the
    adversarial orientation:
Moore v. Bertuzzi
, 2012 ONSC 3248, 110 O.R.
    (3d) 611, at paras. 75-79.

[40]

In
Aviaco
, at para. 23, the court formulated the question to pose to
    ascertain whether an agreement triggers the immediate disclosure requirement:

Do the terms of the agreement alter the apparent relationships
    between any parties to the litigation that would otherwise be assumed from the
    pleadings or expected in the conduct of the litigation?

[41]

In
    the present case, the motion judge rejected Avivas argument that the 2011 Litigation
    Agreement did not alter the adversarial orientation in the lawsuit between it
    and H&M. Aviva does not challenge that finding, and properly so. Although
    the 2011 Litigation Agreement was not a pure
Mary Carter
agreement, and
    while the terms of the 2011 and 2016 Litigation Agreements were not identical
    to those in the agreement at issue in
Aecon
, nevertheless they shared
    the same essential element: they changed the relationship between two parties from
    an adversarial one into a co-operative one.
As
    such, the 2011 and 2016 Litigation Agreements were ones that changed the
    litigation landscape.

The remedy for failing to disclose immediately an agreement
    that changes the litigation landscape

[42]

Aviva
    submits the
Aecon
decision did not lay down a general rule about the
    remedy a court should grant where a partys conduct amounts to an abuse of
    process because the party failed to disclose immediately an agreement that
    changed the landscape of the litigation.
Aecon
, it contends, must be
    confined to its facts, which differ from those in the present case. Aviva
    contends that in any case where a court finds that a party has committed an
    abuse of process, the court must engage in a case-specific proportionality
    analysis to craft an appropriate remedy, as was done in the
Abarca
decision. Not to do so, Aviva argues, would ignore the flexible application of
    the doctrine of abuse of process articulated by cases such as
Toronto
    (City) v. C.U.P.E., Local 79
, 2003 SCC 63, [2003] 3 S.C.R. 77.

[43]

I
    do not accept this submission.

[44]

First,
    the
Abarca
case did not involve a litigation agreement and did not
    discuss the consequences of a failure to disclose immediately such an
    agreement.

[45]

By
    contrast,
Aecon
squarely addressed the consequences that should flow
    from a specific kind of abuse of process  a partys failure to disclose
    immediately an agreement that alters the adversarial posture of the litigation.
    Several clear messages emanate from
Aecon
:

(i)

The obligation of immediate disclosure of agreements that change
    entirely the landscape of the litigation is clear and unequivocal  they
    must be produced immediately upon their completion: at paras. 13 and 16;

(ii)

The absence of prejudice does not excuse the late disclosure of such an
    agreement: at para. 16;

(iii)

Any failure of compliance amounts to abuse of process and must result
    in consequences of the most serious nature for the defaulting party: at para.
    16; and

(iv)

The only remedy to redress the wrong of the abuse of process is to stay
    the claim asserted by the defaulting, non-disclosing party. Why? Because sound
    policy reasons support such an approach:

Only by imposing consequences of the most serious nature on the
    defaulting party is the court able to enforce and control its own process and
    ensure that justice is done between and among the parties. To permit the
    litigation to proceed without disclosure of agreements such as the one in issue
    renders the process a sham and amounts to a failure of justice: at para. 16.

[46]

Aecon
identified the remedy for a specific kind of abuse of process. As a matter of litigation
    procedural policy, no unfairness is likely to arise from the application of the
Aecon
principles. At least one party to a litigation agreement usually
    is an insurer or other sophisticated litigation participant who should be well
    aware of the
Aecon
principles. Where such a sophisticated party fails
    to comply with its clear disclosure obligation, judicial time should not be
    spent on inquiring into what, if any, prejudice was caused by a breach of the partys
    clear obligation (or, as argued by Aviva, whether the undisclosed litigation agreement
    somehow actually benefited the parties who knew nothing of its existence).

[47]

Moreover,
    if a party to a litigation agreement is unclear whether the agreement has the
    effect of changing the adversarial position of the contracting parties, thereby
    attracting the mandatory disclosure obligation, it is always open to the party
    to move before the court for directions. In that way, the court can enforce and
    control its own process and ensure that justice is done between and among the
    parties.

Conclusion

[48]

I
    conclude that the motion judge misdirected himself regarding the principles in
Aecon
.
    He erred by failing to apply
Aecons
remedy of staying the claim of
    the party that did not immediately disclose a litigation agreement. Given that
    misdirection, his discretionary decision is not entitled to deference in the
    circumstances:
Canada (Minister of Citizenship and Immigration) v. Tobiass
,
    [1997] 3 S.C.R. 391, at para. 87. The motion judge should have applied
Aecon
and granted the stay Williamson requested.

VI.

DISPOSITION

[49]

For the reasons set out above, I would allow the appeal, set aside the
    order of the motion judge, and grant an order staying Avivas action (the third
    party claim having settled).

[50]

In accordance with the agreement of the parties on costs, the
    respondents shall pay Williamson its costs of the appeal fixed at $10,000,
    inclusive of disbursements and HST, and its costs of the motion below fixed at
    $15,000, inclusive of disbursements and HST.

[51]

As to the remaining costs of the action, the parties advised they will
    attempt to agree upon them, failing which such costs will be assessed.

Released: DB Mar 29 2018

David Brown J.A.
I agree. Alexandra Hoy A.C.J.O.
I agree. Janet Simmons J.A.

[1]
A typical
Mary Carter
agreement contains the following features: (i) the
    contracting defendant guarantees the plaintiff a certain monetary recovery and
    the exposure of that defendant is "capped" at that amount; (ii) the
    contracting defendant remains in the lawsuit; (iii) the contracting defendant's
    liability is decreased in direct proportion to the increase in the
    non-contracting defendant's liability:
Pettey
, at p. 732;
Laudon
,
    at para. 36;
Moore v. Bertuzzi
, 2012 ONSC 3248, 110 O.R. (3d) 611, at
    para. 67.

[2]
Paul M. Perell & John W. Morden,
The Law of Civil Procedure in Ontario
,
    3d ed. (Toronto: LexisNexis Canada, 2017), at p. 762, describes the features of
    a
Pierringer
agreement as: (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 defendants 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
    the by non-settling defendants.


COURT OF APPEAL FOR ONTARIO

CITATION: Haque v. St. Joseph's Health Centre, 2018 ONCA 285

DATE: 20180321

DOCKET: C64411

Hoy A.C.J.O., Juriansz and Miller JJ.A.

BETWEEN

Mahfuzul Haque

Plaintiff (Appellant)

and

St. Josephs Health Centre, UHN (University
    Health Network) and Toronto Police Service Board

Defendants (Respondents)

Mahfuzul Haque, appearing as self-represented

Naveen Hassan, for the respondents

Heard and released orally:  March 16, 2018

On appeal from the judgment of Justice Koehnen of the Superior
    Court of Justice, dated September 14, 2017.

REASONS FOR DECISION

[1]

In his statement of claim, the appellant alleged that criminals
    associated with government corrupted authority implanted microchips in his
    body and in his brains Magnum and have used those implants to transmit reality
    TV-like programming all over the world. He further alleges that the respondent,
    St. Josephs Health Centre, misdiagnosed him with schizophrenia in 2003 when the
    real cause of his symptoms was the implanted microchips. He claims damages of
    $350 billion from the respondents.

[2]

The respondents requested that the Superior Court of
    Justice, on its own initiative, dismiss the appellants action pursuant to rule
    2.1.01(6) of the
Rules of Civil Procedure

and
    the Registrar of the Superior Court of Justice refer the matter to Koehnen J.

[3]

Koehnen J. concluded that this was a case for dispensing with notice to
    the appellant that the court was considering dismissing his action and
    permitting him to make written submissions. He further concluded that it is
    clear from the statement of claim that the appellant needs medical assistance
    and that the appellants claim, as pleaded, discloses no cause of action. He
    dismissed the appellants action without prejudice to his right to bring a new
    proceeding based on proper legal advice.

[4]

We have had the benefit of hearing the appellant make submissions to
    this court in which he reiterated the allegations in his claim.
We agree with Koehnen J.s assessment of this matter. There is no
    basis to interfere with his decision not to give notice to the appellant and to
    dismiss his claim. Accordingly, this appeal is dismissed.

Alexandra Hoy
    A.C.J.O.

R.G. Juriansz J.A.

Bradley Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Hibbert v. McGoogan, 2018 ONCA 310

DATE: 20180326

DOCKET: C64127

Doherty, Rouleau and Miller JJ.A.

BETWEEN

Garfield Anthony Hibbert

Appellant

and

Carlin McGoogan

Respondent

Vivek David, for the appellant

Michael Kestenberg, for the respondent

Heard: March 22, 2018

On appeal from the judgment of Justice Patrick Monahan of
    the Superior Court of Justice, dated July 12, 2017, with reasons reported at 2017
    ONSC 4292.

REASONS FOR DECISION

[1]

The appeal was dismissed with reasons to follow. These are those
    reasons.

[2]

The appellant appeals the dismissal of his claim for negligence against
    the respondent solicitor. The appellant had commenced several actions in
    Superior Court and Small Claims Court, and later retained the respondent to
    assume carriage of three of the actions. The appellant alleges that the
    respondents errors caused two of the actions to be dismissed, and prevented
    the execution of the judgment ultimately obtained in one of those actions. He
    also alleges that a third action was not prosecuted diligently, resulting in a
    judgment that could not be executed as the defendant had filed for bankruptcy.

[3]

On the summary judgment motion, the judge found that the appellant had
    failed to adduce sufficient evidence in support of the claims of negligence,
    and in any event failed to establish any resulting loss.

[4]

The appellant advances three grounds of appeal. First, he argues that
    the motion judge erred in dismissing the court reporter and proceeding with no
    court reporter present.

[5]

We see no merit in this ground. The summary judgment motion was argued
    based on a paper record without any oral evidence being adduced. A court
    reporter was not required.

[6]

The second ground put forward is that the motion judge ought to have
    referred the matter to trial because, in the appellants submission, there were
    facts in dispute requiring credibility findings.

[7]

We disagree. As found by the motion judge, the record was sufficient to
    decide the matter. The basis of his decision was that the appellant simply
    failed to advance adequate evidence supporting his allegations of negligence or
    loss caused by that alleged negligence. This contrasted with the respondents
    comprehensive materials showing that the dismissals and delays were not caused
    by the errors he is alleged to have committed. In fact, with respect to the
    third action, the motion judge found that the delay was caused by the
    appellants failure to provide timely instructions and the required retainer.

[8]

The third ground advanced is that the motion judge made factual errors
    and applied the wrong standard of proof. Among the errors alleged, the
    appellant submits that the motion judge erred in refusing to consider the
    similar fact and circumstantial evidence tendered. In the appellants
    submission, this evidence demonstrated a pattern of court documents being sent
    to the wrong address, such that the only reasonable inference is that the
    respondent provided the court with the wrong address.

[9]

We disagree with this interpretation of the motion judges reasons. The
    motion judge considered the similar fact evidence. He simply chose not to draw
    the inference proposed by the appellant, preferring the evidence of the
    respondent to the effect that the correct information had been provided to the
    court. This finding was available to him on the record.

[10]

The
    appellant also argues that the motion judge erred in finding that the appellant
    had not proven that he suffered any losses as a result of the alleged
    negligence.

[11]

With
    respect to the first action, the appellant maintains that the motion judge improperly
    speculated that he may have been awarded costs for having successfully set
    aside its dismissal, offsetting any loss he may have suffered. We reject this argument.
    It is the absence of any evidence of loss that supported the motion judges
    disposition of the appellants claim with respect to the first action. Any
    comment allegedly made by the motion judge during the hearing with respect to
    the possibility of costs was likely simply an explanation as to why losses must
    be proven, rather than assumed, in order to support a claim in negligence.

[12]

As
    for the second action, the appellant maintains that the motion judge relied on
    the erroneous proposition that the preparation of a second identical claim was
    a prudent response to the original claim having been dismissed. The second
    identical claim was pursued by the appellant and judgment of $9,000 plus costs was
    obtained. In his submission, he is unable to recover on this judgment as
    pursuing a second identical claim in these circumstances is an abuse of process.
    The respondents preparation of this claim was therefore negligent and resulted
    in damages.

[13]

Counsel
    for the respondent effectively conceded, and we agree, that the motion judge
    erred in describing the issuance of a second identical claim as a prudent
    measure. We nonetheless agree with the motion judge that the appellant had not
    provided evidence that he cannot execute on the judgment or that he has otherwise
    suffered a loss as a result of the alleged negligence.

[14]

The
    appellants claim with respect to the third action was similarly deficient. As
    conceded by the appellants counsel, there is no evidence suggesting that, even
    if the action had been pursued with diligence, judgment could have been
    obtained and recovery effected before the bankruptcy of the defendant in that
    action.

[15]

As
    for the burden of proof, it is well-established that on a motion for summary
    judgment, the responding party is required to put his best foot forward and
    show that there is a genuine issue for trial. Even assuming that there was some
    basis for finding that the respondent was negligent in handling one or more of
    the appellants files, the appellant failed to meet that onus, and in
    particular failed to produce any evidence that a loss was incurred.

[16]

For
    these reasons, the appeal is dismissed. Costs to the respondent fixed at $7,500
    inclusive of disbursements and applicable taxes.

Doherty J.A.

Paul Rouleau J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Holmes v. Stockton Estate, 2018 ONCA 273

DATE: 20180319

DOCKET: C63987

Simmons and Pepall JJ.A. and Fragomeni J. (
ad
    hoc
)

BETWEEN

Muriel Holmes

Plaintiff (Respondent)

and

The
    Estate of Robert White Stockton, Joanne Tait-Stockton

and John Robert Stockton

Defendants (Appellants)

Todd D. Storms, for the appellants

Allen Wilford, for the respondent

Heard and released orally: March 12, 2018

On appeal from the judgment of Justice B.A. Glass of the
    Superior Court of Justice, dated May 30, 2017.

REASONS FOR DECISION

[1]

The appellants appeal from a summary judgment granted by Glass J., dated
    May 30, 2017. In very brief and conclusory reasons, the motion judge granted
    far-reaching relief in favour of the respondent. We are of the view that the
    bulk of the relief ordered cannot stand. We reach this conclusion for the
    following reasons.

[2]

The amounts found owing to the respondent by the appellants, the Estate
    of Robert White Stockton and Joanne Tait-Stockton (Tait-Stockton), on account
    of a 1994 second mortgage and a 1997 judgment on the covenant in the 1994
    second mortgage are duplicated in the judgment. More importantly, the underlying
    1994 second mortgage was extinguished by power of sale proceedings, and the
    underlying debt on the 1994 second mortgage was extinguished by the
    bankruptcies of the deceased, Robert White Stockton (the deceased), and Tait-Stockton.

[3]

In the latter regard, we observe that neither the parties nor the court,
    in agreeing to, or making, the 1994 consent judgment in the matrimonial
    proceeding under which the 1994 second mortgage was mandated, had authority to
    alter the relative priorities under the
Bankruptcy and Insolvency Act
,
    R.S.C. 1985, c. B-3. Accordingly, we disagree with the motion judges
    conclusions that the 1994 second mortgage remained a secured debt in favour of
    the respondent and that the mortgage debt was not subsequently extinguished by
    the bankruptcies of both the deceased and Tait-Stockton.

[4]

Further, in relation to the finding of a fraudulent conveyance from the
    deceased to Tait-Stockton of the property subject to the 1994 second mortgage
    (the Property), the respondent continued to hold her second mortgage
    following the impugned transfer, Further, and in any event,  the Property was subsequently
    transferred under power of sale proceeding by the first mortgagee on December
    20, 1996  which was after the impugned conveyance to Tait-Stockton  with no
    payout to the respondent on the 1994 second mortgage or to Tait-Stockton. The
    respondent did not advance a claim of improvident sale or otherwise challenge
    the propriety of the first mortgagees conduct of the power of sale. The first
    mortgagee obtained appraisals, and there was no evidence that the first
    mortgagee lacked independence. In all the circumstances, we fail to see the
    basis for any finding that the impugned conveyance was made with an intention
    to defeat, hinder, delay, or defraud creditors.

[5]

In any event, we observe that the respondent knew of the conveyance of
    the deceaseds interest in the Property prior to the bankruptcies of both the
    deceased and Tait-Stockton. The respondent could and should have raised any
    challenge to the impugned conveyance in the bankruptcy proceedings so that any
    fruits of any improper transfer could have been available to be shared rateably
    with other unsecured creditors.

[6]

As for the respondents claim to the proceeds of sale of farm equipment
    sold by the deceased, the respondents claim is statute-barred.
[1]

[7]

Lastly, the respondents claim for child support of $22,500 plus
    interest, together with unpaid costs awards relating to child support totalling
    $1,750 plus interest, survived the deceaseds bankruptcy. The respondent shall
    have judgment for the principal amounts, as noted, plus interest at the
    prejudgment rate prevailing at June 4, 1999 in relation to the child support of
    $22,500; at July 8, 1993 in relation to the $1,000 costs award; and at September
    15, 1999 in relation to the $750 costs award.

[8]

The motion judges order is set aside. The above judgment is substituted
    together with orders dismissing the balance of the respondents action and
    setting aside the orders of Gunsolus J. renewing and authorizing the
    re-issuance of writs of seizure and sale (which related to amounts claimed to
    be owing on the 1994 second mortgage). There will be no order as to costs of
    the motions below or of this appeal.

Janet Simmons J.A.

S.E. Pepall J.A.

Fragomeni J. (
ad hoc
)

[1]
The only evidence of this claim that the respondent could identify in the appeal
    record was a financial statement in the 1990s matrimonial proceedings between
    the respondent and the deceased.


COURT OF APPEAL FOR ONTARIO

CITATION: Holtby v. Draper, 2018 ONCA 231

DATE: 20180309

DOCKET: C61476

Weiler
*
,
    van Rensburg and Huscroft JJ.A.

BETWEEN

Kenneth Holtby

Applicant/Respondent

and

Cheryl Draper
and
    Knapton Farms Ltd.

Respondents/
Appellant

Aaron M. Franks and Michael Zalev, for the appellant

William R. Clayton, for the respondent

Heard: By written submissions

REASONS FOR DECISION

[1]

Cheryl Draper and Ken Holtby were married and co-owned property. The
    appellant, Cheryl Draper, appealed the trial judges decisions on property
    ownership. This courts decision on the appeal was released on December 1,
    2017:
Holtby v. Draper
, 2017 ONCA 932.

[2]

These supplementary reasons concern only one of the properties,
    namely a
50 acre parcel, referred to as Lot 8. At the date
    of separation, Ms. Draper was the sole registered owner of Lot 8. The trial
    judge determined that, by way of resulting trust, Mr. Holtby was the beneficial
    owner of the entirety of Lot 8.

[3]

On appeal, this court concluded instead that the
    parties were joint beneficial owners of the property. It followed from this, as
    reasonable and appropriate, that Ms. Draper was entitled to occupation rent for
    her half of the property during the lengthy period of time that Mr. Holtby had
    sole use of the property in its entirety (and Ms. Draper made mortgage and
    property tax payments). Given the finding of joint beneficial ownership and
    entitlement to occupation rent, we also  set aside the trial judges award
    reimbursing Ms. Draper for the payments she made toward the property in its
    entirety,  while noting that Ms. Draper may be entitled to reimbursement from
    Mr. Holtby for certain payments she made.

[4]

The parties were invited to make further
    submissions, in the absence of agreement, on the following:

(1)

the adjusted equalization payment owing to
    reflect Ms. Drapers  joint beneficial interest in Lot 8, as well as  the
    adjusted value of Mr. Holtbys company, Knapton (a calculation error that both
    parties conceded on appeal);

(2)

prejudgment interest on the equalization
    payment and occupation rent;

(3)

payments, if any, owing to Ms. Draper in
    respect of Lot 8;

(4)

trial costs; and

(5)

costs of the appeal.

[5]

The parties resolved the first two issues. On
    consent, Mr. Holtby shall pay Ms. Draper an equalization payment of $121,729.43
    as well as prejudgment interest of $14,081.93 on the equalization payment and
    $4,663.53 on the occupation rent.

[6]

We turn to the remaining issues in dispute, as
    well as one other issue raised by Ms. Draper  that she should receive an
    additional amount for occupation rent on Lot 8 for the post-trial period of
    2016 to 2017.

Payments on Lot 8

[7]

Ms. Draper made all mortgage and property tax
    payments on Lot 8 from May 1996 to December 2015. She claims $30,788.51, which
    is one-half of the total amount she paid. The basis for the claim is that Mr.
    Holtby was unjustly enriched by Ms. Drapers payment of his share of the
    mortgage and property tax payments on his one-half interest in the property.

[8]

Mr. Holtby resists the claim on the basis that
    he incurred all of the input costs and did all of the work, or paid for the
    work, to generate income from Lot 8. He says there is no unjust enrichment as
    Ms. Draper will benefit from receiving 50% of the net proceeds from the
    eventual sale of Lot 8, the value of which has appreciated considerably since
    its acquisition in 1999.

[9]

We disagree with Mr. Holtbys position on this
    issue. Because we have found that the basis for Ms. Drapers entitlement to
    half of Lot 8 is not by way of constructive trust but rather a resulting trust
    interest, her entitlement to 50% of the proceeds of its sale does not
    compensate her for the payments she made towards Mr. Holtbys share of the
    property.  The law of unjust enrichment entitles Ms. Draper to recovery
    provided she can establish that Mr. Holtby was enriched by these payments to
    her detriment in the absence of a juristic reason:
Kerr v. Baranow
, [2011] 1 S.C.R. 269 at para. 32.

[10]

As the trial judge found at para. 110, Ms.
    Draper was under no obligation to make out-of-pocket payments towards the
    mortgage and property taxes for Mr. Holtbys property. To allow him to retain
    such payments would unjustly enrich Mr. Holtby at Ms. Drapers expense.  Given
    our conclusion that Ms. Draper was already entitled to half of the property as
    a  joint owner, it follows from the trial judges findings  absent extenuating
    circumstances  that she is now entitled to reimbursement for the payments she made
    in relation only to Mr. Holtbys half-interest. Mr. Holtby has raised no such
    extenuating circumstances.

[11]

Mr. Holtby shall therefore pay Ms. Draper the
    sum of $30,788.51 plus pre-judgment interest for the amounts she paid in
    relation to Mr. Holtbys half of Lot 8.

Trial Costs

[12]

Ms. Draper was ordered by the trial judge to pay
    Mr. Holtby all-inclusive costs of $100,000. The trial judge characterized Mr.
    Holtby as much more successful in the litigation. He reduced the quantum of
    costs below the $185,000 sought by Mr. Holtby, on account of Mr. Holtbys
    conduct in the litigation and less reasonable settlement efforts.

[13]

Ms. Draper submits that, since she was
    successful on the ownership of Lot 8 issue, that, plus the trial judges
    reasons to significantly reduce Mr. Holtbys costs, mean that she should
    receive $100,000 in costs from him. She claims that the case was ultimately
    about the money she would receive, and that in concluding that she was a joint
    beneficial owner of Lot 8, this courts decision increased the money she will
    receive by more than $200,000.

[14]

Mr. Holtby argues that the trial judges costs
    decision should stand, asserting that he was more successful because he
    recovered the bulk of the farm assets held in Knapton without having to pay Ms.
    Draper. He also contends that Ms. Drapers offers to settle were problematic.

[15]

Mr. Holtby was successful at trial and on appeal
    on the issue of ownership of Knapton. Ms. Draper gained joint beneficial
    ownership of Lot 8 on appeal. By comparison, the other issues at trial were
    minor, or depended on these determinations of ownership. (This was also the
    view of the trial judge who observed that the trials raison d
ê
tre was whether Ms. Draper was a real owner
    of Knapton and/or [Lot 8]:
Holtby v. Draper
,

[2016] O.J. No. 4595.) The relative
    success of the parties, after appeal, was evenly balanced. In the
    circumstances, the parties should bear their own costs of the proceedings in
    the court below, and we so order.

Costs of the Appeal

[16]

Ms. Draper claims partial indemnity costs of
    $42,000. Mr. Holtby claims $16,811.58 in costs. Both claim to be the successful
    party on appeal. The two main issues on appeal were the ownership of Lot 8 and
    Knapton. Success was divided. In the circumstances there will be no order as to
    costs on the appeal, including the costs of the additional submissions made by
    the parties.

Additional Claim for Occupation Rent

[17]

Ms. Draper claims an additional $7,125 in
    occupation rent for the years 2016 to 2017 (post-trial). While he does not
    contest the amount of the claim, Mr. Holtby responds that these years were not
    before the court, and that no such award should be made.

[18]

It is this courts well-established practice not
    to entertain issues raised for the first time on appeal where the parties have
    not had an opportunity, in such circumstances, to focus on and prepare a record
    in that context:
Rosenberg v. Gold
, 2016 ONCA
    565 at para. 26.

[19]

At the same time, the late timing of this claim
    would not necessarily foreclose recovery since, given the nature of the claim
    for beneficial ownership in Lot 8, Mr. Holtby could be presumed to have been on
    notice of a claim for ongoing occupation rent: see

Frick
    v. Frick
, 2016 ONCA 799 at paras. 34-40.

[20]

Here, Mr. Holtby was on notice since trial that
    Ms. Draper was claiming occupation rent in the event that she was found to be a
    part-beneficial owner. Accordingly, we award Ms. Draper the additional amount
    of $7,125 in occupation rent.

K.
    van Rensburg J.A.

Grant
    Huscroft J.A.

*

Weiler J.A. took no part in this decision.


COURT OF APPEAL FOR ONTARIO

CITATION: Huang v. Fraser Hillary's Limited, 2018 ONCA 277

DATE: 20180320

DOCKET: M48763 (C63576 & C63592)

Strathy C.J.O. (Motion Judge)

BETWEEN

Eddy Huang

Plaintiff
(Appellant/Respondent)

and

Fraser Hillarys Limited and David Hillary

Defendants
(Respondents/Appellants)

Sarah McDonald and Kaitlyn Mitchell, for the proposed
    intervener Ecojustice

Michael S. Hebert, for the appellant Eddy Huang

Jeremy R. Rubenstein, for the respondent David Hillary

Michael S. Rankin and Jonathan OHara, for the
    respondent Fraser Hillarys Limited

Heard: March 13, 2018 (via videoconference and teleconference)

ENDORSEMENT

[1]

Ecojustice moves for leave to intervene in this appeal
    as a friend of the court pursuant to r. 13.02 of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194.

[2]

The judgment appealed against held Fraser
    Hillarys Limited liable in nuisance and under the
Environmental
    Protection Act
, R.S.O. 1990, c. E19 (
EPA
) for approximately $1.8 million in damages arising from the
    contamination of Mr. Huangs land by pollutants from the corporations dry
    cleaning business. Claims in trespass, negligence and under the rule in
Rylands
    v. Fletcher
(1868), L.R. 3 H.L. 330 (U.K. H.L.),

were dismissed. The claims against Mr.
    Hillary were also dismissed.

[3]

Ecojustice says that it has a unique perspective
    on some of the legal questions at issue on the appeal and a genuine interest in
    the courts interpretation and application of the legal principles. It claims
    that its perspective would be of assistance to the court in understanding the
    environmental law implications of its decision.

[4]

The considerations on a motion of this kind are
    set out in
Peel (Regional Municipality) v. Great Atlantic &
    Pacific Co. of Canada Ltd.
(1990), 74 O.R. (2d) 164
    (C.A.), at p. 167. They are: (a) the nature of the case; (b) the issues that
    arise; and (c) the likelihood that the proposed intervener will be able to make
    a useful contribution to the resolution of the appeal without causing injustice
    to the immediate parties.

(a)

The nature of the case

[5]

The nature of the case is an important factor,
    as Watt J.A. noted in
Jones v. Tsige
(2011),
    106 O.R. (3d) 721 (C.A., in Chambers), at para. 23. The standard to be met by the
    proposed intervener is more onerous where the litigation is a private dispute
    as opposed to a public prosecution.

[6]

This case falls into the former category. It is
    fundamentally private litigation in which one of the parties, Mr. Huang,
    claimed that the other parties polluted his property.

(b)

The issues that arise

[7]

The issues concern the application of
    well-settled, one might say ancient, causes of action: trespass, negligence and
    nuisance. While each party suggests that the trial judge erred in his interpretation
    or application of some of those causes of action, the legal issues are not
    complex.

[8]

There is also an issue concerning the
    application of a statutory provision: s. 99(2) of the
EPA
.

[9]

Intervention may be warranted in some cases
    where the construction or application of important legislation  particularly a
    provision such as this, which has received little judicial interpretation  is
    at issue.

[10]

Significantly, however, this provision is not a
    major focus of the proposed intervention. Ecojustice proposes to make brief
    submissions about the appropriateness of rebutting the presumption against the
    retrospective application of the provision. It says that its submissions will
    differ from those of the parties and will be of use to the Court in the
    event that it finds that retrospective application is at issue in the appeal.

[11]

Ecojustice says it will bring additional case
    law and authorities to the courts attention, but does not elaborate on how its
    submissions will be different or how they will be of use to the court. In the
    absence of a draft factum setting out what those submissions will be, I can
    only speculate. In this case, the responding factum filed by Mr. Huang in
    response to Fraser Hillarys Limiteds appeal contains approximately 30
    paragraphs on the issue of retrospectivity. I am not satisfied that
    Ecojustices participation on this issue will materially assist the court.

(c)

Useful contribution without causing
    injustice

[12]

As to the third factor, I am prepared to assume,
    without deciding, that Ecojustice has the requisite experience and expertise to
    assist the court on the hearing of this appeal.

[13]

However, I am not satisfied that the proposed
    intervention would assist the court in any meaningful way. As Fraser Hillarys
    Limited demonstrates in its responding factum on the motion to intervene, many
    of Ecojustices submissions on the common law causes of action simply recast the
    submissions made by the parties themselves. For the reasons set out above, the
    submissions of Ecojustice on the retrospective application of s. 99(2) of the
EPA

will not materially assist the court.

[14]

It seems to me that it would be unfair to
    require the respondents on the appeal to address the interveners perspectives
    on the issue, without a demonstration that the perspective will materially
    assist the court.

[15]

There is an additional concern about injustice.
    The appeal is scheduled to be heard in approximately seven weeks. The proposed
    intervener has not filed a draft factum outlining the submissions it would make
    if permitted to intervene, but says it will file its factum within the next two
    weeks. I cannot judge how long it will take the respondents to respond, but
    they will clearly be required to respond to new arguments going beyond the
    fairly narrow scope of the appeal. It could be necessary to adjourn the appeal,
    something that has already occurred once. This would cause additional prejudice
    to the parties.

Order

[16]

For these reasons, I dismiss the motion. This is
    not an appropriate case for the award of costs.

G.R.
    Strathy C.J.O.


COURT OF APPEAL FOR ONTARIO

CITATION: Johnson v. Menezes, 2018 ONCA 287

DATE: 20180321

DOCKET: C64514

BETWEEN

Hoy A.C.J.O., Juriansz and Miller JJ.A.

Christine Johnson

Applicant (Respondent)

and

Emmanuel Menezes

Respondent (Appellant)

David Harris-Lowe, for the appellant

Elizabeth Sachs, for the respondent

Heard and released orally: March 16, 2018

On appeal from the order of Justice Michael R. Gibson of
    the Superior Court of Justice, dated October 10, 2017.

REASONS FOR DECISION

[1]

The principal issues in this family law dispute were the custody of the
    parties 15-year-old daughter and child support.

[2]

The appellant father was involved in a motor vehicle accident a month
    prior to the first case conference. He did not attend the case conference or
    file an answer or case conference brief. The case conference judge ordered the
    father noted in default and set the matter down for an uncontested trial. After
    the uncontested trial, the trial judge, on January 30, 2017, made an order
    granting the mother sole custody with the fathers access at her discretion. He
    also granted child support based on the fathers 2015 income retroactive to
    October 1, 2011.

[3]

The father brought a motion to set aside the default judgment that was
    eventually heard on October 2, 2017. That motion was dismissed and the father
    now appeals to this court.

[4]

The motion judge rejected the appellants explanation for the default
    and the delay in moving to set aside the default judgment, noting that the
    motor vehicle accident had not prevented him from attending to his claim for
    statutory accidents benefits and his civil action for damages.

[5]

The motion judge went on to conclude it was not in the interests of
    justice to set aside the final order to allow the appellant to submit an answer
    that would make no significant changes to the existing order. In our view,
    the motion judge erred in arriving at this conclusion in one respect. The
    appellant has persuaded us that he has an arguable case on one issue, namely
    the determination of retroactive child support. The record before the trial
    judge included the appellants income for the years 2013 through 2015. While
    his income in the years 2014 and 2015 was in the order of $100,000, his income
    for the year 2013 was $44,877. The trial judge used the appellants 2015 income
    in setting the quantum of child support, which he made retroactive to October,
    2011. It appears to us arguable that the trial judge failed to consider the
    evidence of the appellants 2013 income in determining retroactive child
    support. We are not persuaded that the appellant has an arguable case on any
    other issue.

[6]

We consider it in the interests of justice to set aside paragraph 3 of
    the order of the trial judge dated January 30, 2017, allow the appellant to
    file an answer on the issue of retroactive child support only, and allow the
    matter to proceed on that issue.

[7]

The mother was substantially successfully in this court and below and we
    fix costs accordingly. The mother shall be entitled to her costs of this appeal
    fixed in the amount of $6,000, and for the motion before Justice Gibson below
    in the amount of $3,000, both amounts inclusive of disbursements and HST.

Alexandra Hoy A.C.J.O.

R.G. Juriansz J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Kerzner Estate, 2018 ONCA 258

DATE: 20180315

DOCKET: C64220

Hoy A.C.J.O., Juriansz and Miller JJ.A.

In the Estate of
    Jeffrey Kerzner, deceased

BETWEEN

Branislava Stajduhar and Andreja Stajduhar

Applicants (Appellants)

and

Arlene Wolfe, executrix of the Estate of Jeffrey
    Kerzner

Respondent (Respondent)

Branislava Stajduhar and Andreja Stajduhar, acting in
    person

Robert Coates, for the respondent

Heard and released orally: March 12, 2018

On appeal from the judgment of Justice Sean F. Dunphy of
    the Superior Court of Justice, dated August 30, 2017.

REASONS FOR DECISION

[1]

This is an appeal from the judgment of Dunphy J. of the Superior Court of
    Justice dismissing the appellants application for dependants relief.

[2]

The first appellant submits the motion judge placed too much emphasis on
    his finding that she and the deceased did not live together for any
    identifiable period. No doubt he placed a great deal of emphasis on this
    factor. However, he also took into account other factors. He looked at the
    factor of fidelity in the relationship, the financial arrangements, the overall
    nature of the relationship, and their alleged common life together. In
    addition, he found there were clear breaks in the relationship on two different
    occasions. He supported his findings with careful reference to the evidence.

[3]

The motion judge also found as a fact the deceased did not have a
    settled intention to treat the second appellant as a child of his family.

[4]

The appellants submit that the fresh evidence they tendered is
    corroborative and confirmatory of their claim and provides a basis for
    disturbing the motion judges findings of fact on appeal. We do not agree and
    we refuse to admit the tendered fresh evidence. The fact that the appellants
    have been granted CPP survivor benefits has no relevance either to the legal
    principles or the facts found by the court in determining their application for
    dependants relief under the
Succession Law Reform Act
, R.S.O. 1990,
    c. S.26.

[5]

We are not persuaded there is any basis to interfere with the decision
    of the motion judge. The appeal is dismissed. Costs are awarded to the respondent
    in the amount of $12,500 inclusive of disbursements and HST.

Alexandra Hoy A.C.J.O.

R.G. Juriansz J.A.

B.W. Miller J.A.