COURT OF APPEAL FOR ONTARIO

CITATION:
Doobay
    v. Diamond, 2012 ONCA 580

DATE: 20120907

DOCKET: C54141

Lang, Epstein and Hoy JJ.A.

BETWEEN

Danny
    Doobay and Richbuilt
    Development Inc.

Plaintiffs (Respondents)

and

Anthony
    Diamond
and Diamond
    + Diamond Merchant Banking Group

Defendant (Appellant)

David M. Midanik, for the appellant

Simon Bieber and Christopher Scotchmer, for the
    respondents

Heard: April 3, 2012

On appeal from the Order of Justice Beth A. Allen of the
    Superior Court of Justice dated July 25, 2011, with reasons reported at 2011
    ONSC 4457.

Epstein
    J.A.:

A.

OVERVIEW

[1]

Anthony Diamond appeals from an order finding him in contempt of court,
    sentencing him to 42 days in jail, and fining him $40,000. The finding was
    based on his refusal to answer questions he was asked during examinations in
    aid of the respondents attempts to execute on a 2007 default judgment they
    obtained against the appellant.

[2]

The appellant challenges the finding of contempt on several grounds.  He
    maintains that by the time the motion for contempt was heard he no longer had
    any obligations to the respondents as the matter had been settled or at least
    he had good reason to believe it had been settled.  The appellant submits that
    the motion judge erred by refusing his request for an adjournment for the
    purpose of calling
viva voce

evidence to this effect.  The
    appellant also argues that the motion judge erred by failing to specify which questions
    were inadequately answered.  He further contends that the motion judge erred by
    penalizing him for conduct for which he had already been penalized.

[3]

If his appeal from the finding of contempt is unsuccessful, the
    appellant appeals his sentence on the basis that the motion judge erred by imposing
    an unreasonable penalty.

[4]

For the reasons that follow, I would dismiss the appeal in its entirety.

B.

Facts

[5]

In October 2007, the respondents obtained default judgment against the
    appellant in the amount of $854,924.21. In his May 27, 2008, examination in aid
    of execution he refused to answer any questions. On August 22, 2008, Master
    Sproat ordered the appellant to re-attend the examination and answer all proper
    questions.  Further to this order, the appellant was examined on December 15,
    2008, but again refused to answer a substantial number of the required questions.

[6]

On July 24, 2009, on consent, Master Sproat ordered the appellant to
    provide written answers to all but one of the outstanding questions asked
    during the December 15, 2008 examination by September 30, 2009 (406 questions
    in total).  The order further required the appellant to attend an examination on
    October 23, 2009, for the purpose of answering any follow-up questions arising
    from his written answers.

[7]

While the appellant missed the September 30 deadline, he did purport to
    provide written answers to all 406 questions. However, the respondents were not
    content with the answers and brought a contempt motion.

[8]

After a three-day hearing, Spence J. concluded, in reasons released on
    June 18, 2010, that the answers provided to all but 70 questions were largely
    unresponsive and must be considered to be a deliberate attempt to obfuscate
    the issue before the court for the purpose of avoiding complying with the
    Order. As the appellant had failed to meet the terms of Master Sproats orders
    and had shown flagrant disregard for the Court process, Justice Spence held
    him to be in contempt of court, sentenced him to 21 days imprisonment and
    imposed a fine of $20,000.

[9]

After an unsuccessful attempt to appeal the decision of Spence J. to
    this court, the appellant served his sentence in January 2011.  Then, on the
    basis of the appellants continued disobedience of the court orders, the
    respondents brought another contempt motion.  At the hearing of this motion, scheduled
    to take place before Hainey J. on May 18, 2011, the appellant claimed that he
    had retained new counsel who could not attend on that occasion and undertook to
    purge his contempt if the matter were adjourned.  The adjournment, opposed by
    the respondents, was granted with the condition that the appellant provide
    responsive written answers, within 30 days of May 18, 2011.

[10]

Again,
    the appellant purported to deliver responses to the questions in issue and
    again the respondents remained dissatisfied.  They pursued their motion for
    contempt. The appellant brought a cross-motion for an order staying the
    contempt motion as an abuse of process, or alternatively, an adjournment in
    order to give him the opportunity to call
viva voce
evidence.

C.

Motion judges reasons

[11]

At
    the outset of the hearing, the motion judge dismissed the appellants cross-motion
    in which he sought an adjournment.  The appellant argued that the testimony of
    witnesses he proposed to call would supplement two emails that were before the motion
    judge that evidenced a settlement or at least supported his honest belief that
    a settlement had been reached.

[12]

The
    motion judges refusal to grant the adjournment was based on her finding that
    the record contained no evidence that supported the appellants position that the
    matter had settled or that he had reason to believe that a settlement had been
    reached.  The proposed testimony would therefore not have assisted in the
    determination of whether the appellant remained in contempt of court.

[13]

The
    motion judge also rejected the appellants argument that the respondents were
    using the contempt motions to force him into an improvident settlement and thus
    were abusing the process of the court. The appellant chose not to pursue this
    issue on appeal.

[14]

The
    motion judge then turned to the main motion for contempt.  She reviewed the
    answers the appellant had provided to the respondents counsel under cover of
    letter dated June 13, 2011, the respondents reply of June 28, 2011 indicating
    that, again, the answers were not responsive, and the appellants letter of July
    5, 2011, providing further answers. The motion judge then carefully categorized
    the outstanding questions that remained in dispute and examined the answers to
    the questions.

[15]

At
    the end of this detailed analysis, the motion judge concluded that the answers
    demonstrated the same evasiveness and unwillingness to comply with the Court
    Orders that the appellant had displayed in previous court appearances and that
    he was obviously still playing tricks and games to avoid the Courts
    authority.  She held that there is no question that [the appellant]
    deliberately and wilfully disobeyed the Court Orders for him to answer the
    questions responsively and therefore found that he had failed to purge his
    contempt, and remained in contempt of court.

[16]

After
    reviewing the courts jurisdiction to sanction contempt as set out in rule
    60.11 and related authorities, the motion judge specifically noted the fact
    that the appellants disrespect of the courts authority had not been remedied
    by the previous sanction, saying, at para. 46: [i]t is clear there has been
    active defiance on [the appellants] part. He has engaged in repeated
    unrepentant acts of contempt. Serving a previous period of jail time has not
    influenced his attitude and conduct.

[17]

After
    noting the respondents position that the appellant be incarcerated for three
    months and fined a further $50,000, the motion judge sentenced him to a term of
    incarceration of 42 days and imposed an additional fine of $40,000 to be paid
    within 30 days.

D.

ISSUES

[18]

The
    appellant has raised three principal grounds of appeal:

1. In
    dismissing the cross-motion, the motion judge erred in refusing to grant the
    requested adjournment, thereby preventing him from adducing evidence concerning
    the alleged settlement;

2. The motion judge
    erred by failing to specify which answers were inadequate and by penalizing for
    the same conduct that formed the foundation of the previous finding of contempt
    and accompanying penalty; and

3.  The
    sentence imposed was unreasonable.

E.

ANALYSIS

(1)

The Cross-Motion
for an Adjournment

[19]

The
    appellant argues that the motion judges refusal to grant the adjournment
    request deprived him of a fair hearing.  He claims that the evidence available
    from his proposed witnesses would have augmented the evidence the motion judge
    had before her in the form of the two emails  evidence that would have
    supported his claim that the matter had been settled or that he at least had
    reasonable grounds to believe that it had been settled.  I disagree.

[20]

First,
    as previously noted, Hainey J. adjourned the motion set for May 18, 2011 to
    enable the appellant to arrange for his witnesses to attend and testify.  In
    granting the adjournment, Hainey J. made the hearing of the motion peremptory
    to the appellant.  It was clear to the appellant that if he wished to call
    witnesses, those witnesses had to be ready to testify before the motion judge
    on July 13, 2011. He failed to ensure their attendance. This alone would be
    sufficient to dispose of this issue. However, even if the hearing on July 13
    was not peremptory to the appellant, I would still not give effect to this
    ground of appeal.

[21]

The
    appellants argument concerning the denied adjournment turns on whether the
    determination of the motion for contempt required the resolution of any
    material facts in dispute.  If so, a trial of an issue would have been
    necessary. In the absence of any disputed material fact, a motion for civil
    contempt may proceed summarily:
R. v. B.E.S.T. Plating Shoppe Ltd. and
    Siapas
(1987), 59 O.R. (2d) 145 (C.A.),
R. v. Jetco Manufacturing Ltd.
    and Alexander
(1987), 57 O.R. (2d) 776 (C.A.).

[22]

The
    only issue the appellant raised as being material and contentious was whether the
    parties had settled or at least whether he genuinely believed that they had
    settled their differences relating to the unsatisfied judgement.

[23]

In
    my view, the motion judge was correct in finding there to be no air of reality
    to the appellants allegations of a settlement  actual or perceived.  The two
    emails themselves belie the appellants argument as they do not demonstrate a
    settlement: they contain nothing more than a settlement proposal and its
    rejection.

[24]

The
    only evidence that a settlement had been reached was the appellants bald
    allegation in his affidavit sworn May 13, 2011, where, at para. 39 he says: I
    met with [the respondents representative] on March 27, 2011, to settle the
    civil claim of Doobay, and a settlement was reached.

[25]

The
    problem is that this assertion does not stand up to scrutiny when considered in
    the light of the appellants own conduct. He claims that, as far as he is
    concerned, a settlement was reached on March 27, 2011. However, in letters
    dated June 13, 2011 and July 5, 2011, the appellant, by providing further
    written answers to the outstanding questions, conducted himself in a manner
    contrary to the existence of a settlement or his reasonable belief that the
    matter had been settled.  I would also note that the appellant appeared before
    Hainey J. on May 18, 2011, five days after swearing his affidavit of May 13.
    The appellant did not raise the issue of settlement and obtained an adjournment
    on an undertaking to provide responsive answers within 30 days. All of the
    appellants conduct during this period is inconsistent with an honest belief
    that the matter had settled.

[26]

Against
    this background, I see no error in the motion judges exercise of her discretion
    to refuse the appellants request for an adjournment to call
viva voce
evidence.

[27]

I
    would therefore not give effect to this ground of appeal.

(2)

The motion for contempt

(a)

Specificity

[28]

The
    appellant, relying on
Cotroni v. Quebec Police Commission
, [1978] 1
    S.C.R. 1048, argues that the motion judge erred by not reviewing each of his
    responses in order to specifically set out which answers were unsatisfactory
    and thereby formed the foundation for the finding of contempt.

[29]

In
Cotroni
, the Supreme Court held that no one should be found guilty of
    contempt of court unless a specific charge has been brought against him.
    According to the Supreme Court:

An accused person who is sentenced to a long term in prison for
    evasive answers regarded as amounting to a refusal to testify is entitled to
    purge himself of his contempt by providing answers that are not evasive. In
    order to be able to do this he must know quite clearly which questions require better
    answers.

[30]

I
    would not give effect to this ground of appeal as it is clear that the
    appellant was well-aware of the specifics of his default.

[31]

In
    June 2011, the appellant attempted again to address the unanswered questions.
    Counsel for the respondents advised that he still considered the answers to be
    unsatisfactory.  In a letter dated June 24, 2011, David McGregor, a lawyer
    working for the appellant, again wrote to the respondents lawyers asking for
    clarification on which answers in particular were non-responsive. On June 28,
    the respondents lawyer replied, listing every question and answer that
    remained problematic.

[32]

The
    motion judge did not review each and every answer.  Rather, she identified a
    long list of answers as inadequate, such as repeated replies of fishing
    expedition.

[33]

The
    appellant knew that answers such as this were unacceptable just as he was well
    aware of which questions Master Sproat ordered him to answer and which
    questions had not been satisfactorily answered. This is not a case where a
    contemnor was deprived of the opportunity to purge his contempt because of lack
    of specificity.

[34]

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

(b)

Double-jeopardy

[35]

The
    appellant submits that he had already been sentenced for contempt by Spence J.
    and cannot be punished for the same contempt twice. He relies on the holding of
    the Alberta Court of Appeal in
Re Braun
, 2006 ABCA 23, 262 D.L.R. (4
th
)
    611, that if contempt is not purged, continued disobedience is neither an
    aggravating factor nor a fresh transgression (at para. 27).

[36]

However,
    in
Chiang (Trustee of) v. Chiang
, 2009 ONCA 3, 93 O.R. (3d) 483, this
    court stated that it could not endorse the reasoning in
Braun
.  First,
    as explained in para. 44, it was at odds with the coercive purpose of civil
    contempt:

To permit only one penal sanction for the ongoing breach of an
    order deprives the court of the ability to impose measured, but incremental,
    sanctions to obtain compliance with that order. In other words, if the court
    can impose only one period of incarceration for a civil contempt, then it
    cannot address, in any meaningful way, a contemnors continuing defiance.

Second, the Ontario
Rules of Civil Procedure
provide
    more flexibility in sentencing than Albertas Rules of Court, Alta. Reg.
    390/1968.

[37]

While
    the reasoning expressed in
Chiang
was
obiter
, I would endorse it
    and apply it to this case. The coercive tool of civil contempt must have teeth.
    For that reason, I reject this ground of appeal.

(3)

The Penalty

[38]

For almost five years the
    appellant has been frustrating the respondents attempts to enforce the
    judgment they have against him  depriving them of their lawful rights and
    needlessly costing them time and money.  He has also shown profound disrespect
    for the court.

[39]

Spence J. tried to send a
    clear message to the appellant that conduct of this nature would not be
    tolerated.  Unfortunately, the message was not strong enough to impress upon
    the appellant the importance of obeying court orders. I see no reason to
    interfere with the motion judges decision to strengthen the message by
    doubling the sanction imposed for lack of compliance.

(4)

The Structure of the Contempt Hearing

[40]

A
    point not raised by the parties merits comment.  It involves the procedure the
    motion judge followed. While the procedure to be followed in contempt hearings
    is in the discretion of the motion judge, they are generally bifurcated - there
    is a liability phase and a penalty phase. This is to allow the contemnor an
    opportunity to purge his or her contempt:
College of Optometrists of
    Ontario v. SHS Optical Ltd. (c.o.b. Great Glasses)
, 2008 ONCA 685, 241
    O.A.C. 225, at para. 73.  The contemnors efforts to purge the contempt during
    the period between conviction and penalty are a relevant consideration in the
    determination of the appropriate penalty:
Great Glasses
, at para. 79.

[41]

Here,
    the motion judge determined liability and penalty at the same time.  As a
    result, prior to the determination of punishment, the appellant had no further
    opportunity to purge or at least attempt to purge the contempt found by the
    motion judge.

[42]

As
    Watt J.A. noted in
Great Glasses
,
in some circumstances
    a consolidated hearing may cause unfairness  it may not only deprive the
    contemnor of the opportunity to purge his or her contempt but also expose the
    contemnor to a situation where evidence relevant to penalty may affect the determination
    of liability.

[43]

Here,
    as noted, there was no challenge on this point.  Nor, in my view would one have
    been successful given that the contempt itself was effectively not in issue and
    that the history of the matter evidenced Mr. Diamond's intention to continue
    his contemptuous conduct.

A.

disposition

[44]

For
    these reasons, I would dismiss the appeal with costs payable by the appellant
    to the respondents that I would fix in the amount agreed upon by counsel of
    $8,900, inclusive of disbursements and applicable taxes.

Released:

SEL                                       Gloria
    J. Epstein J.A.

SEP 07 2012                          I agree Susan E. Lang
    J.A.

I agree
    Alexandra Hoy J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Dyce v. Hubbard, 2012
    ONCA 626

DATE: 20120920

DOCKET: C55055

Goudge, Simmons and Gillese JJ.A.

BETWEEN

James E. Dyce

Respondent (Appellant)

and

Megan Hubbard

Applicant (Respondent)

and

Wayne Dyce

(Respondent)

James Dyce, appearing in person

Wayne Dyce, appearing in person

Debora Lyons, for the respondent

Heard: September 18, 2012

On appeal from the order of Justice Thomas J. McEwen of
    the Superior Court of Justice, dated January 20, 2012.

APPEAL BOOK ENDORSEMENT

[1]

The appellant raises a number of peripheral arguments. The application
    below was fully argued and there is no merit to the appellants want of service
    argument. Nor is there error in the application judge in his discretion hearing
    it with another motion. The appellant filed no motion seeking to cross examine
    Ms. Hubbard at the hearing and declined the invitation to make submissions
    following the hearing.

[2]

On the merits of the appeal itself the appellant has demonstrated no
    basis for interfering with the conclusion reached by the application judge. The
    appeal is dismissed and there is therefore no need to deal with the
    respondents motion.

[3]

Costs to the respondent fixed at $1,000 in total.


COURT OF APPEAL FOR ONTARIO

CITATION:
Edgar v. Edgar, 2012
    ONCA 646

DATE: 20120927

DOCKET: C52572

Weiler and Sharpe JJ.A., and Mackinnon J. (
ad
    hoc
)

BETWEEN

Jennifer-Lynn Edgar

Applicant (Appellant)

and

Jeffrey Robert Edgar

Respondent (Respondent in Appeal)

Peter Callahan, for the appellant

Ian Mang, for the respondent

Heard and released orally: September 7, 2012

On appeal from the judgment of Justice Gisele M. Miller
    of the Superior Court of Justice, dated July 6, 2010.

ENDORSEMENT

[1]

At the conclusion of oral hearing, we advised counsel that a written
    endorsement would be released in due course and would include these terms:

·

The trial judge erred in failing to impute any income to the respondent
    from February 2008 to August 2009;

·

Income of $30,000 per annum is imputed to the respondent as of
    February 1, 2008 to and including August 1, 2009;

·

The spousal support awarded to the respondent in the sum of
    $28,000 was not a lump sum rather a calculation of periodic spousal support
    payments due to him in the specified periods of time;

·

If the parties are unable to agree upon the recalculation of the
    amounts owing between them arising from the imputation of income, the dispute
    is referred back to the trial judge for determination;

·

The costs awarded below are set aside and there will be no costs
    of either the trial or of this appeal.

Background

[2]

The parties married February 2, 2002 and separated October 1, 2007.  The
    only issues in the trial below were child support, spousal support, and whether
    to base these amounts on the respondents actual income or on an imputed
    income.  The trial judge imputed an annual income of $30,000 from August 25,
    2009 onward.  The appellant asked this court to set aside the trial judgment
    and instead impute a salary equal to the full amount the respondent earned
    before he left his job in October 2007 ($62,458.).

[3]

Both parties worked full-time during the marriage. However, upon
    separation, the respondent took a leave of absence from his job and received
    short-term disability benefits equivalent to 100 percent of his salary until
    the end of January 2008.  The respondent failed to take advantage of various
    forms of income replacement including employer benefits, CPP, EI and ODSP. His
    explanations for these failures ranged from complete oversight to
    procrastination. The respondent had not applied for any jobs since the date of
    separation.  In 2008, and again in 2009, the respondent was ordered, on
    consent, to attend for an independent medical examination at the appellants
    expense.  He did not do so and she did not pursue the matter.  The respondent
    produced a letter from his doctor in 2008 indicating that he was incapable of
    working due to anxiety and depression.

[4]

The trial judge expressed concern over the lack of medical evidence of
    the respondents inability to work but noted that the appellant did not compel
    him to attend for a medical exam despite having two orders allowing her to do
    so.  The trial judge concluded that the respondent was not able to resume his
    former employment but was capable of some less taxing form of employment.  She
    concluded that he would be capable of earning $30,000 and imputed this amount
    from August 25, 2009 onward.  The trial judge found that from February 2008,
    when the respondent stopped receiving disability benefits, to August 2009, the
    respondent was incapable of resuming his prior employment, inhibited in his
    ability to seek other employment, and in need of support which the appellant
    was capable of providing.  Applying the
Spousal Support Guidelines
,
    the trial judge found that the respondent was owed $28,000 in spousal support
    and applied that amount as a credit to the respondents ongoing child support
    obligations.

The Period Prior to August 25, 2009

[5]

At paras. 50 and  51, the trial judge stated:

Despite the lack of medical evidence, I accept that Mr. Edgar
    was, for some time, incapable of working as a result of his anxiety and
    depression. It is clear, however, that while his condition may prevent him from
    resuming his former employment, he is either able to undertake some less taxing
    form of employment or he is so ill that he would qualify for disability
    benefits which would also assist in providing health care benefits to the
    children.

I am not satisfied, on the evidence before me, including my own
    observations as to Mr. Edgar's capabilities, that he continues to be incapable
    of earning some income. I am satisfied that it is his own inaction - but not an
    inability to act - which has resulted in Mr. Edgar's current unemployment. I am
    satisfied this has been the case from at least as early as August 25, 2009 when
    by final order of this Court the primary residence of the children was with
    Mrs. Edgar.

[6]

We see no reason to interfere with the trial judges conclusion to
    impute income to the respondent in the amount that she did as of August 25,
    2009.

[7]

In our view, the trial judge ought to have considered whether she
    should impute an income to the respondent prior to that date.  The trial judge
    referred to evidence showing that the respondent knew that long-term disability
    was available to him after January 2008.  She noted that the respondent
    testified that his employer had told him it would reinstate his sick pay upon
    confirmation from a doctor that he was unable to work.  She also found that he
    was aware of CPP benefits but had not followed through with his application for
    them.  Nor had he applied for ODSP.  The trial judge also referred to his
    failure to follow through with an application for Employment Insurance.  On
    this evidence, it was error not to have considered whether income should have
    been imputed to him prior to August 2009 based on these available sources.  In addition,
    the trial judge had evidence before her that, in 2009, the respondent withdrew
    $20,000 to $30,000 from his RRSP account.  The trial judge did not consider
    whether that was income for support purposes.

[8]

The appeal proceeded without a transcript of the trial evidence.  The
    appellant did not challenge the findings of fact made by the trial judge and
    submitted that, based on those findings, this court could determine whether
    there was an error of law.  If so, the appellant asked the court to go on to
    impute income to the respondent based on the trial judges findings.

[9]

The record before us establishes that had the respondent proceeded in a
    reasonable way at least $15,000 annually was available to him through Canada
    Pension.  He could have received that amount for 11 months in 2008, and for eight
    months in 2009.  It does not appear from the reasons that the respondent led
    any evidence as to the amount of long-term disability that would have been
    available to him from February 2008 had he completed his application for it in
    a timely way.  We also know that the respondent had RRSP income between $20,000
    and $30,000 in 2009, but there is no indication that he could not have taken some
    or all of that in 2008.  The trial judge also found that the respondent was
    capable of earning $30,000 annual employment income from August 2009 forward.

[10]

The
    various sources of income available to the respondent commencing from February
    2008 and the actual and imputed sources available to him in 2009 are evident in
    the unchallenged reasons of the trial judge.  Having regard to those facts and
    in preference to sending the matter back for a new trial, we have imputed an
    annual income of $30,000 to the respondent commencing from February 1, 2008 to
    and including August 1, 2009.  This amount is consistent with the minimum
    sources of income known to have been available to and withdrawn by the
    respondent during the period from February 2008 to August 2009 that were not
    included in the trial judges imputation of income. The trial judgment is
    amended accordingly, necessitating a recalculation of the amounts of child and
    spousal support payable between the parties.

Spousal Support

[11]

The
    trial judge calculated arrears of periodic payments based on the
Spousal
    Support Advisory Guidelines
.  She went on to provide that the credits due
    to the respondent for spousal and child support were to be set off against his
    obligation to the appellant for ongoing child support.  The appellant submitted
    that the trial judge had thereby erred in failing to have regard to the
    different income tax treatments applicable to child support and spousal
    support.

[12]

The
    tax treatment arises by virtue of the
Income Tax Act
which is not
    susceptible to change by court order.  The fact that the periodic payments are
    quantified at a point in time and that a set off is ordered by the court as a
    collection mechanism does not change the nature of the underlying legal character
    of the periodic spousal support payments.: see
C.(Y.J.) v. C.(Y.D.)
(2001), 56 O.R. (3d) 150; 150 O.A.C. 247 (C.A.) and
Sills v. Minister of
    National Revenue
, 1984 CarswellNat 514.  Consequently, the fact that the
    trial judge did not explicitly discuss the inherent income tax law implications
    of an award of spousal support was not unreasonable nor was it an error.  This
    ground of appeal is dismissed.

Result

[13]

Income
    at the rate of $30,000 annually is imputed to the respondent effective February
    1, 2008 to and including August 1, 2009.  If the parties are unable to agree on
    the recalculation of the amounts owing between the parties for child and
    spousal support, the matter is referred back to the trial judge for
    determination.  The recalculation should assume that no other changes would be
    made to the judgment other than with respect to the income imputation.

[14]

The
    costs award below is set aside.  Given the divided success, there will be no costs
    of the trial or of the appeal.

K.M.
    Weiler J.A.

Robert
    J. Sharpe J.A.

J.
    MacKinnon J. (
ad hoc
)


COURT OF APPEAL FOR
    ONTARIO

CITATION:

Frenchmen's Creek Estates
    Inc. v. Tuckernuck Mortgage Administration Inc., 2012 ONCA 579

DATE: 20120907

DOCKET:  C54698

Goudge, Cronk and Epstein JJ.A.

BETWEEN

Frenchmens
    Creek Estates Inc.,

550075
    Ontario Inc. and Joseph Zawadzki

Applicants (Appellants)

and

Tuckernuck
    Mortgage Administration Inc.,

Tuckernuck
    Mortgage Administration Inc., In Trust,

Mathews
    Southwest Developments Limited,

MSW
    Dallas Limited and Bruce Bent

Respondents (Respondents)

William P. Dermody and Angela L. Papalia, for the
    appellants

Mark A. Klaiman, for the respondents

Heard: May 8, 2012

On appeal from the order of Justice Dale Parayeski of the
    Superior Court of Justice dated October 28, 2011.

By the Court:

[1]

The appellants
    appeal from that part of the order of the motion judge dismissing their motion
    to add four defendants to their application in which they claim damages
    allegedly arising from the registration of improper foreclosure orders against
    their property.  The respondents, Tuckernuck Mortgage Administration Inc., in
    Trust, and Tuckernuck Mortgage Administration Inc., are respectively the trust
    that held the mortgage upon which the foreclosure orders were obtained and the
    trustee of the trust.  Two of the proposed defendants, Ruth Kerbel and the
    estate of Michael Finkelstein, are the beneficiaries of the trust. The motion
    judge held that the other two proposed defendants, Martin Bernholtz and Jeffrey
    Kerbel, are the trustees of the trust.

[2]

At the conclusion
    of the hearing of the appeal, the appeal was dismissed with reasons to follow.
    These are those reasons.

FACTS

[3]

In 2001, first
    and second mortgages were registered against property owned by the appellants.
    Tuckernuck Mortgage Administration Inc., in trust, (the Trust) was the
    mortgagee of both mortgages. In 2006, the Trust obtained two
ex parte

foreclosure orders on the affidavit evidence of Martin
    Bernholtz. These orders were subsequently set aside by this court as the first
    mortgages, under which the foreclosure orders had been obtained, had previously
    been paid in full.

[4]

On January 22,
    2007, by notice of application, the appellants commenced this proceeding
    claiming damages arising out of the foreclosure orders, arguing that the orders,
    allegedly based on improper affidavit evidence of Mr. Bernholtz, prevented the
    sale of the property to a third party.

[5]

On August 4,
    2011, the appellants moved in the Superior Court of Justice for an order
    converting their application to an action and adding four new proposed
    defendants.

[6]

On consent, the appellants
    obtained an order permitting them to convert the application into an action and
    file a statement of claim.  However, the motion judge accepted the respondents
    position that the claim against the four individuals was statute-barred and
    therefore dismissed the request to add them as defendants to the
    newly-constituted proceeding.

[7]

It was common
    ground that the applicable limitation period is two years.  The primary contentious
    issue before the motion judge and before this court is discoverability  the
    date when it could be said that the appellants knew or reasonably ought to have
    known of their claim against the proposed defendants.

[8]

The appellants
    argued that they only became aware of the true identities of the trustees and
    beneficiaries of the trust in August 2009. On that basis, the proposed
    amendment, notice of which was provided on April 4, 2011, was in time.

[9]

However, the
    motion judge, on the evidence before him, found as a fact that the appellants
    were aware as of February 19, 2007 that Ruth Kerbel and Michael Finkelstein
    were the sources of the mortgage funds and the beneficiaries of the trust, as
    they were identified as such in Martin Bernholtzs affidavit of that date. The
    motion judge also found that the appellants were aware of Martin Bernholtzs
    role as a trustee throughout, as the foreclosure orders were obtained on his
    affidavit.

[10]

While Jeffrey
    Kerbel was not named in Martin Bernholtzs affidavit, the motion judge held
    that the claim against him was statute-barred. The motion judge found as a fact
    that the appellants knew, or with little effort could have known, of Jeffrey
    Kerbels involvement well before cross-examining him in August 2009. In oral
    argument, the appellants did not dispute this finding.

[11]

The findings of
    fact made by the motion judge are adequately supported by the record.  It
    follows that his conclusions concerning the operation of the limitation period
    to prevent the addition of the proposed defendants are unassailable.

[12]

As an alternative
    argument, the appellants now seek to resile from their concession before the
    motion judge that the applicable limitation period is two years. The appellants
    submit that, given that the statement of claim in the newly-formatted action
    seeks only declaratory relief against the proposed defendants, the limitation
    period is actually ten years.  This submission is based on s. 4 of the
Real Property Limitations Act
, R.S.O. 1990, c. L. 15, which
    provides that an action to recover land must be brought within ten years.

[13]

The appellants argue
    that they seek a return of their equity of redemption and the removal of the
    mortgages registered against the land. According to the appellants, this is an
    action to recover land.

[14]

This argument is
    based on a narrow interpretation of the relief sought against the proposed
    defendants in para. 1 (d)(i-x) of the statement of claim.  While each aspect of the claim against the proposed defendants involves a
    request for a declaration, as noted by the motion judge at para. 22 of his
    reasons, the nature of the requested declarations is inextricably combined with
    claims for compensatory relief. Looking at the context of the dispute from a
    practical perspective, as did the motion judge, and in the light of the
    agreement between the parties that the relevant limitation period was two
    years, there is no merit to the argument that the applicable limitation period is
    ten years.

[15]

As previously
    noted, the appellants also argue that the proposed defendants are necessary
    parties to the action and therefore, in the interests of having a full
    determination of all issues in one proceeding, their addition is warranted.

[16]

The basis upon which
    the appellants contend that the proposed defendants are necessary parties is
    that their interests are engaged and they therefore should be bound by any
    judgment.  The appellants offer no applicable authority to support the proposition
    that this should override the expiry of the limitation period. To the extent
    that this argument relies on there being special circumstances that justify the
    addition of the proposed defendants outside the limitation period, it fails for
    a number of reasons.  It is necessary only to point out that this court in
Joseph v. Paramount Canadas
    Wonderland
, 2008
    ONCA 469, 294 D.L.R. (4
th
) 141, held that the doctrine of special
    circumstances did not survive the enactment of the
Limitations Act
, 2002
, S.O. 2002, c. 24, Sch. B.

[17]

Finally, while
    not pressed in oral argument, we agree with the motion judges finding that
    this is not a case of misnomer.  A reading of the notice of application would
    not make clear to those having knowledge of the facts that the appellants were
    claiming against any party other than those specifically named. The appellants
    are not seeking to correct the name of a party; rather, they are seeking to add
    parties.

[18]

In summary, the
    appellants knew or reasonably ought to have known the identity and involvement
    of the proposed defendants well within the prescribed period and took no steps
    to add them. As a result, their claim is statute-barred.  There is no other
    basis upon which their addition is warranted.

[19]

It is for these
    reasons that the appeal has been dismissed, with costs to the respondents as
    agreed-upon in the amount of $7,500, inclusive of disbursements and applicable
    taxes.

S.T. Goudge J.A.

"E.A. Cronk J.A.

Gloria J. Epstein J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Gentech
    Insurance Ltd. v. Martina, 2012 ONCA 605

DATE: 20120914

DOCKET: C54524

Feldman, Sharpe and Ducharme JJ.A.

BETWEEN

Gentech Insurance Ltd.

Plaintiff

(Respondent)

and

Alan Martina and Peter Diamantouros

Defendants

(Appellants)

Patrick J. Cotter, for the appellants

Allyson Fischer and Stephen F. Gleave, for the
    respondent

Heard: August 20, 2012

On appeal from the judgment of Justice David G. Stinson
    of the Superior Court of Justice, dated October 6, 2011.

ENDORSEMENT

[1]

The appellants are insurance salesmen. The respondent is an insurance
    broker that retains salespeople, referred to as producers, who operate as
    non-employee agents using the brokers licence and facilities. The appellant
    Martina came to the respondent as a producer in 2005. He was shown the
    respondents standard form written agreement. He never signed the written
    agreement, but he commenced and continued as a producer based on an oral
    agreement on the commission split and a 50/50 shared equity interest with
    Gentech in his book of business, that is, his insurance clients.

[2]

The appellant Diamantouros joined Gentech as a producer four months
    after Martina. Diamantouros brought his own book of business. He also did not
    sign the standard form agreement but commenced and continued to work as a
    producer sharing commissions on a 50/50 basis.

[3]

Both men decided to leave Gentech on the same day in January 2009,
    without notice and taking their books of business. Although Gentech tried to
    retain at least a portion of Martinas accounts, most of them chose to transfer
    their accounts to Martina.

[4]

Gentech sued both men on numerous grounds, including breach of contract
    and the tort of civil conspiracy. The key issue in the case was whether there
    was an agreement between each of the appellants and the respondent as to what
    would happen if the appellants left, and if there was an agreement, when was it
    formed and what were its terms.

[5]

The original claim alleged an agreement between Gentech and Martina
    based on the terms of the unsigned contract, and in particular paragraph 18,
    which dealt with termination and provided:

18. If this Agreement is terminated and the Special Conditions
    are satisfied as of the effective date of termination, the Contractor shall
    have the option but not the obligation to acquire the Book of Business from
    Gentech for 50% of the Fair Market Value thereof as determined by mutual
    agreement or binding in accordance with the process and procedures set out in
    Schedule A if they cannot agree. The Contractor must exercise this option by
    notice in writing to Gentech within four weeks before or within two weeks after
    the effective date of termination. The purchase price shall be paid in full on
    closing. Closing shall take place within three weeks after the later of (A)
    final determination of the purchase price, or (B) the effective date of
    termination. On Closing Gentech will provide a list of customers included in
    the Book of Business, copies of such documents as the Contractor may reasonably
    require to service that Book of Business, and a restrictive covenant agreement
    whereby Gentech agrees not to do [sic] sell general insurance products or renew
    general insurance products with the Book of Business without the prior written
    consent of the Contractor which consent may be unreasonably refused prior to
    the earlier of (C) two years after closing, or (D) the death of the Contractor.
    Both parties agree they will execute such further and other assurances as may
    be reasonably required to give effect to this paragraph and the transaction
    herein contemplated.

[6]

Prior to the commencement of the trial, but more than two years after
    the appellants left Gentech, the respondent sought to amend its claim to add a
    claim for, among other things, unjust enrichment. Further, the Amended
    Statement of Claim added paragraph 9, which reads:

When the defendants joined Gentech, both verbally agreed that
    if they left Gentech and took Gentechs customers, they would pay Gentech 50%
    of fair market value for any customers they had sold insurance products or
    renewals to during the twelve months prior to leaving.

[7]

The appellants opposed the amendments on the basis that the Respondent
    was asserting new causes of action that were statute-barred. The trial judge
    allowed the amendments, ruling in respect of paragraph 9 that it was a
    restatement of the claim of an oral agreement. It was essentially in accordance
    with the deal reflected in paragraph 18 of the unsigned contract and did not
    constitute a different cause of action. As a result, it was not statute-barred.

[8]

There were two meetings between the appellant Martina and the main
    principal of Gentech, Mr. Muir. The first was before Martina started, where
    Muir presented a spreadsheet that showed examples of the commission calculation
    as well as how the fair market value of the book of business would be
    calculated at termination, based on a factor of two. Martina subsequently held
    Gentech to the commission calculation, which provided for a higher commission
    in the first years, based on the first meeting and the spreadsheet. At the
    second meeting, shortly after Martina started working at Gentech, Muir
    presented Martina with standard form documents outlining the agreement,
    including a services contract and a non-competition/non-solicitation agreement.
    Those documents were never signed.

[9]

The trial judge found that Gentech and Martina had agreed to be bound by
    the terms reflected in the spreadsheet examples from the first meeting,
    including the commission structure and the 50/50 equity split with a
    termination buyout at two times commission representing fair market value.

[10]

The
    appellant submits that the effect of this finding was to turn an option to
    purchase the book of business on termination, contained in Gentechs written
    contract at paragraph 18, into a mandatory obligation on the producers to buy
    their books of business on termination. His position was that if he left
    Gentech with his book of business, his option was to purchase Gentechs 50%
    interest or not purchase it, and face a lawsuit for breaching a non-solicitation
    covenant, which lawsuit he believed would not be successful.

[11]

We
    do not agree. The trial judge found that Martina and Muir made an oral
    agreement based on the spreadsheet and not on the terms of the Gentech form of
    agreement that was not signed. The oral agreement included the commission split
    as well as the 50/50 equity interest in Marinas book of business. If Martina
    chose to leave Gentech with his book of business, he was required to purchase
    Gentechs 50% interest at fair market value which the spread sheet showed as
    two times annual commission. On the other hand, if Martina wished to leave
    without his book of business, for example, if he wished to retire, then Gentech
    would purchase his 50% interest at the same formula price.

[12]

It
    is implicit in this arrangement that whoever sold the book of business would
    not solicit those customers for two years, reflecting the two times annual
    commission price formula.

[13]

We
    note that even had the terms of paragraph 18 of the written agreement applied,
    Marina would not have had an option to leave Gentech with his book of business
    without paying for it. The option was to not take the book of business.

[14]

Muir
    testified that this was how he always operated with his producers and was not
    cross-examined on this evidence. He further testified that when a producer
    would retire, Gentech would buy out that producers 50% equity interest.

[15]

We
    see no error in the trial judges conclusion that Martina breached the oral
    agreement.

[16]

Diamantouros
    was found liable only for the tort of unlawful conduct conspiracy. In our view,
    that finding cannot be sustained.

[17]

The
    trial judge was not referred to this courts decision in
Agribrands Purina
    Canada Inc. v. Kasamekas
, 2011 ONCA 460, 106 O.R. (3d) 427, which was
    released shortly before his decision in this case. In
Agribrands
, this
    court clarified the requirements for the cause of action for unlawful conduct
    conspiracy,
including that each conspirator must be
    engaged either in unlawful conduct or conduct intended to harm the complaining
    party. For an action in unlawful conduct conspiracy, the conduct must be
    actionable. It must be wrong in the law. (para. 33). In this case, Diamantouros
    owned his book of business and was entitled to leave without notice. The trial
    judge made no finding of unlawful conduct by Diamantouros or that his purpose
    in leaving was to harm Gentech. The appeal must therefore be allowed in respect
    of the claim for unlawful conduct conspiracy against the appellant Diamantouros.

[18]

In
    the result, the appeal is dismissed in respect of the appellant Martina and
    allowed in respect of the appellant Diamantouros. Costs of the appeal to the
    respondent in the amount of $20,000 inclusive of disbursements and HST, which
    counsel agreed includes a reduction of $5000 to reflect the partial success in
    respect of the appellant Diamantouros.

K. Feldman J.A.

Robert J. Sharpe J.A.

E. Ducharme J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:

Hawley v. Pennington, 2012
    ONCA 594

DATE: 20120911

DOCKET: C55316

Cronk, Epstein and Hoy JJ.A.

BETWEEN

James B. Hawley, a partner of Steppe Financial
    Partnership

Plaintiff/Appellant

and

John Pennington
, Howard Rubinoff and Fogler
    Rubinoff LLP

Defendant/Respondent (John Pennington)

Ronald S. Sleightholm, for the appellant

Craig R. Colraine, for the respondent John Pennington

Heard and released orally: September 5, 2012

On appeal from the judgment of Justice C. William Hourigan
    of the Superior Court of Justice, dated March 12, 2012.

ENDORSEMENT

[1]

The appellant appeals from the judgment of Hourigan J. of the Superior
    Court of Justice dated March 12, 2012, granting summary judgment in favour of
    the respondents.  The judgment concerned the appellants claim that the
    respondent Penningtons actions caused 5400 Dixie Road Inc. (5400 Inc.) to
    lose its business, thereby depriving the appellant, as a shareholder of 5400
    Inc., of his share of 5400 Inc.s annual income in management fees
    (approximately $30,000 per year).

[2]

In our view, the appeal must be dismissed, essentially for the reasons
    of the motion judge.  In particular, we note the following:

1.    5400
    Inc. was placed in liquidation in December 2004 by consent court order;

2.    the effect
    of the liquidation order was to require that 5400 Inc. be replaced as the
    general partner of two limited partnerships involved with the Stage West Hotel
    in Mississauga;

3.    the
    process for the replacement of 5400 Inc. as the general partner of the limited
    partnerships was ultimately determined by court order dated April 4, 2005.
    Hawleys appeal from that order was dismissed by this court, as was his earlier
    request for a stay of the order pending his appeal;

4.    the
    election of the replacement general partner, an entity associated with the
    respondent Pennington, was approved by court order dated July 18, 2005.  Hawley
    did not appeal that confirmation order; and

5.    once
    5400 Inc. was wound up and replaced as general partner of the two limited
    partnerships, it ceased to exist and therefore had no legal capacity to
    generate further management fees.

[3]

In all these circumstances, the loss of 5400 Inc.s business was
    occasioned by its consent liquidation, not by any actions of the respondent
    Pennington.  That a corporation associated with Pennington was thereafter
    appointed the new general partner and realized the income previously earned by
    5400 Inc. in no way alters this conclusion.

[4]

We note that the appellant relies on a suggested comparison between this
    case and a dispute between the parties concerning Canadian Equity Resources
    Corporation (CER Corp.), another corporation previously owned by the
    parties.  We do not regard this suggested comparison as helpful.  The facts
    regarding the CER Corp. dispute are distinguishable from the facts of this
    case.  For example, the replacement of the general partner in that case was not
    approved by court order.  In any event, there was no court determination that
    Penningtons conduct in relation to CER Corp. was oppressive in any way: the
    CER Corp. dispute was settled by the parties following a mid-trial pre-trial.

[5]

The appeal is dismissed with costs of the appeal to the respondents in
    the amount of $6,000, inclusive of disbursements and all applicable taxes.

E.A. Cronk J.A.

G.J. Epstein J.A.

Alexandra Hoy J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:

Hawley v. Pennington, 2012
    ONCA 595

DATE: 20120911

DOCKET: C55314

Cronk, Epstein and Hoy JJ.A.

BETWEEN

James B. Hawley and The Aged Gingko Trust

Plaintiffs (Appellants)

and

John K.
    Pennington and The John
    K. Pennington Family Trust No. 1

Defendants (Respondents)

Ronald S. Sleightholm, for the appellants

Craig R. Colraine, for the respondents

Heard and released orally:  September 5, 2012

On appeal from the judgment of Justice C. William
    Hourigan of the Superior Court of Justice, dated March 12, 2012.

ENDORSEMENT

[1]

The appellants appeal from the judgment of Hourigan J. of the Superior
    Court of Justice dated March 12, 2012, granting summary judgment in favour of
    the respondents concerning the appellants oppression claim regarding the
    respondents alleged conduct in relation to and management of Kananaskis Alpine
    Resort Inc. (KARI).

[2]

The background facts are detailed in the motion judges reasons and
    need not be repeated here.

[3]

The motion judge held that this was an appropriate case for summary
    judgment as the record afforded him the requisite full appreciation of the
    evidence and issues required to make dispositive findings by way of summary
    judgment, without the necessity of a trial, in accordance with this courts
    recent decision in
Combined Air Mechanical Services v. Flesch
, 2011
    ONCA 764, 108 O.R. (3d) 1.  In our view, the record fully supports this
    conclusion.

[4]

As the motion judge held, the appellants essential complaint in this
    case is that the respondent Pennington declined to appoint the appellant Hawley
    as a co-director of KARI when Hawley sought to exercise his option to
    re-acquire his former shareholdings in KARI.  After reviewing the statutory
    provisions applicable to KARI, an Alberta corporation, and the evidence pertaining
    to the parties dealings concerning their option agreements, the motion judge
    concluded that Hawley was not entitled to the requested directorship by reason
    of statutory, contract or tort law.

[5]

We see no error in this conclusion.  Indeed, we understood the
    appellants counsel to candidly acknowledge as much during his submissions
    before this court.  The record reveals no basis for Hawleys complaint that he
    was wrongly denied a directorship in KARI.  Accordingly, Penningtons refusal
    to appoint Hawley as a director of KARI cannot support the oppression claim
    sought to be advanced in this action.

[6]

In his factum, Hawley further submits that his exclusion from a
    directorship of KARI while his guarantee of KARIs indebtedness was sought by
    KARIs primary lender/mortgagee and Penningtons negotiations with that
    mortgagee, allegedly to the appellants detriment, ground an oppression claim.

[7]

We disagree.  Hawley ultimately did not provide the requested
    guarantee.  As the motion judge held, the appellants advance only bald
    allegations of oppressive conduct by the respondents.  Hawley was not legally
    entitled to insist on his appointment as a director of KARI.  Absent that
    entitlement and any wrongful denial of the appointment, nothing in the respondents
    dealings with KARIs lender/mortgagee, to the extent identified by the
    appellants, anchors an oppression claim.

[8]

We therefore agree with the motion judge that the oppression claim
    advanced by the appellants is devoid of merit.  The appeal is dismissed with
    costs to the respondents in the amount of $8,500, inclusive of disbursements
    and all applicable taxes.

E.A. Cronk J.A.

G.J. Epstein J.A.

Alexandra Hoy J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Indcondo Building
    Corporation v. Sloan, 2012 ONCA 619

DATE: 20120921

DOCKET: C54391

Goudge, Sharpe and Juriansz JJ.A.

BETWEEN

Indcondo Building Corporation

Plaintiff (Appellant)

and

Valerie Francis Sloan, David Robin Sloan and Cave
    Hill Properties Ltd.

Defendants (Respondents)

P. James Zibarras and Trung Nguyen, for the appellant

Philip P. Healey and Miranda Spence, for the respondents

Heard: March 14, 2012

On appeal from the order of Justice Ruth E. Mesbur of the
    Superior Court of Justice, dated August 30, 2011.

COSTS ENDORSEMENT

[1]

We have received and reviewed the costs submissions from the parties in
    this matter.

[2]

The respondents do not oppose the appellants request for costs of the
    appeal itself. We view them as reasonable. There are therefore fixed at
    $21,139.70 in total.

[3]

We also see no reason why the appellant should be deprived of costs for
    successfully resisting the motion to set aside the order of Armstrong J.A. We
    agree that the costs proposed by the appellant of $3,138.39 in total are
    reasonable and would so order.

[4]

As to the costs of the motion before Justice Mesbur, the appellant was
    successful in reversing the result. The consequence is that the action must
    continue. While the appellant is entitled to costs, they must be limited to the
    motion itself. We therefore order that the respondents pay to the appellant
    costs in the amount of $25,000 in total for the costs of that motion.

S.T. Goudge J.A.

Robert J. Sharpe J.A.

R.G. Juriansz J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Kampers v. Acevedo, 2012
    ONCA 640

DATE: 20120925

DOCKET: C51752

MacPherson, Armstrong and Blair JJ.A.

BETWEEN

Mary Kampers, Sharral Kampers, Bill Kampers, and
    Montana Mason by her litigation guardian Mary Kampers

Plaintiffs (Respondents)

and

Marcelo Acevedo,
Aurelio
    Santoszepeda
,
Moises Nunez
and York Fire
    & Casualty Insurance Company

Defendants (
Appellants
)

Spencer Nicholson, for the appellants

Diane Stortini for the respondent Marcelo Acevedo

P.J. Lo Presti, for the respondent York Fire &
    Casualty Insurance Company

Heard: September 25, 2012

On appeal from the order of Justice R. John Harper of the
    Superior Court of Justice, dated February 1, 2010.

APPEAL BOOK ENDORSEMENT

[1]

The appeal is dismissed as abandoned. The cross-claim has been
    withdrawn.

[2]

No costs.


COURT OF APPEAL FOR ONTARIO

CITATION:
King v. Dawe, 2012
    ONCA 596

DATE: 20120911

DOCKET: C54851 & M41309

Laskin, Rosenberg and Tulloch JJ.A.

BETWEEN

Michael King

Plaintiff (Appellant)

and

Geoffrey Dawe, Wendy Muller, Kontnent Publishing
    Inc. and Global Luxury Publishing Group Inc.

Defendants (Respondents)

Boyd Balogh, for the appellant

Robert B. Bell and Alessandra V. Nosko, for the
    respondent, Wendy Muller

Heard: September 10, 2012

On appeal from the order of Justice Herman Wilton-Siegel
    of the Superior Court of Justice, dated December 8, 2011.

APPEAL BOOK ENDORSEMENT

[1]

We agree with the reasons of the motion judge.  The appeal is therefore
    dismissed.

[2]

Mr. King did not pursue his costs appeal.  Accordingly, leave to appeal
    costs is denied.

[3]

The respondent is entitled to her costs of the appeal, fixed in the
    amount of $8,000, inclusive of disbursements and applicable taxes.


COURT OF APPEAL FOR ONTARIO

CITATION: Labelle (RE), 2012 ONCA 618

DATE: 20120920

DOCKET: C55368

Doherty, Hoy and Pepall JJ.A.

IN THE MATTER OF:  DANIEL LABELLE

AN APPEAL UNDER PART XX.1 OF THE
CODE

Suzan E. Fraser as
amicus curiae

Daniel Labelle, appearing in person

Molly Flanagan, for the respondent, Ministry of the
    Attorney General

Janice E. Blackburn, for the respondent, Person in
    Charge of Waypoint Centre for Mental Health Care

Heard:  September 17, 2012

On appeal against the disposition of the Ontario Review
    Board dated, February 8, 2012.

ENDORSEMENT

[1]

The appellant was found NCR some eight years ago.  He was for several
    years held as a dual offender having been convicted of manslaughter in an
    unrelated proceeding.

[2]

The appellant is held in detention under an order of the Ontario Review
    Board (the Board) at the maximum security facility at Oak Ridges.

[3]

The appellant does not challenge the order detaining him at Oak Ridges,
    but does argue that the Board erred in its refusal to order, as a term of the
    detention order, that the appellant be transferred to the psychiatric facility
    at Brockville for the purposes of obtaining an independent assessment of the
    appellants psychiatric condition.

[4]

The appellant seeks an independent
    assessment primarily on the basis that his psychiatric diagnosis has changed
    significantly.  His treating psychiatrist at the time of the hearing before the
    Board does not accept the diagnosis that had led to the NCR finding some eight
    years earlier.

[5]

The Board reached the following
    conclusions:

·

the appellant posed a
    significant threat to the safety of the public;

·

Oak Ridges provided a secure and orderly environment for the
    appellant.  That environment was important to the maintenance of the
    appellants stability;

·

the level of management of the appellant provided at Oak Ridges
    was necessary to contain the risk;

·

there was no present need for a further assessment as a
    precondition to the Boards exercise of its jurisdiction under s. 672.54.

·

a treatment course for the appellants suspected attention
    deficit hyperactivity disorder (ADHD) was available at Oak Ridges and there
    was some reason to believe that the appellant would be amenable to that
    treatment; and

·

if warranted, at some point in the future, an independent
    psychiatric assessment could be carried out at Oak Ridges.

[6]

Each of the findings outlined above is supported in the record.

[7]

The Board accepted that it had the authority to make the assessment
    order requested.  There is some debate as to when the Board can make an
    assessment order apart from its power under s. 672.121:  see
Mazzei v.
    British Columbia
2006 SCC 7.  We need not address that controversy on this
    appeal as the respondents are prepared to accept, for the purposes of this
    appeal, that the Board had the power to make an assessment order even though
    there was no suggestion that a treatment impasse had arisen.

[8]

We see no error in the Boards exercise of its discretion to refuse the
    requested assessment order.  We cannot agree with the submission of
amicus
that the Boards refusal to order an assessment constitutes a failure in its
    duty to seek out and consider evidence relevant to the determination of an
    appropriate disposition.  The Board considered the evidence put before it that
    was relevant to the suggested transfer to Brockville for the purposes of an
    independent assessment.  There were real difficulties associated with that
    proposed transfer from a security point of view.  There was nothing to be
    gained from a risk assessment point of view.  There was also good reason to
    conclude that the course of treatment proposed at Oak Ridges could proceed and
    could potentially assist the appellant and clarify the diagnosis.  An
    independent assessment at Oak Ridges remained an available option, if deemed
    appropriate.

[9]

The Board did conduct the appropriate inquiry.  That inquiry led it to
    conclude that transfer to Brockville for assessment purposes was not necessary
    for the Board to arrive at the appropriate disposition under s. 672.54.  In our
    view, that conclusion was a reasonable one.  As the Board exercised its
    discretion in a reasonable manner, the court should not interfere.

[10]

The
    appeal is dismissed.

Doherty J.A.

Alexandra Hoy J.A.

S.E. Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Lindhorst v. Hodder, 2012
    ONCA 578

DATE: 20120906

DOCKET: C54853

MacPherson, Armstrong and Watt JJ.A.

BETWEEN

Alvin Lindhorst

Applicant (Appellant)

and

J. Gardiner Hodder, J. Gardiner Hodder a
    Professional Corporation, Warren Rapoport and Gardiner Roberts LLP

Respondents (Respondents)

No one appearing for the appellant

Guillermo Schible, for the respondents J. Gardiner
    Hodder, J. Gardiner Hodder a Professional Corporation and Polten and Hodder

Warren Rapoport, for the respondents Warren Rapoport and
    Gardiner Roberts LLP

Heard: September 5, 2012

On appeal from the order of Justice Spence of the Superior
    Court of Justice, dated November 28, 2010.

APPEAL BOOK ENDORSEMENT

[1]

The appellant, who is representing himself, did not appear for his
    hearing. He received notification of the hearing from the court by letter
    several weeks ago. Both last week and yesterday, respondents counsel e-mailed
    him material related to the appeal. Court staff called the relevant telephone
    number this morning, but no one answered.

[2]

The appeal is dismissed as abandoned. Costs to the Hodder respondents
    fixed at $5000, and to the Gardiner Roberts respondents fixed at $1000, inclusive
    of disbursements and applicable taxes.


COURT OF APPEAL FOR ONTARIO

CITATION: Nazarinia
    Holdings Inc. v. 2049080 Ontario Inc. (JW Car Care),  2012 ONCA 652

DATE: 20120928

DOCKET: C55248

MacPherson, Armstrong and Blair JJ.A.

BETWEEN

Nazarinia Holdings Inc. and Reza Nazarinia

Applicants (Appellants)

and

2049080 Ontario Inc., (d.b.a. JW Car Care),
    Joseph Wilson and Moira Wright

Respondents (Respondents)

Jarad Heydary, David Alderson and Robert Kalanda, for
    the appellants

Derek Ronde and Julianne Rawson, for the respondents

Heard: September 26, 2012

On appeal from the order of Justice Thomas R. Lederer of
    the Superior Court of Justice, dated March 19, 2012.

APPEAL BOOK ENDORSEMENT

[1]

The respondent raises a preliminary matter, namely, that the order being
    appealed is an interlocutory order and, therefore, must be appealed by seeking
    leave from the Divisional Court.

[2]

We agree. The order being appealed deals with unpaid costs orders from
    earlier stages of the litigation and with security for costs for the
    application. Both of these are interlocutory orders: see
Informica Inc. v.
    CGI Information Systems and Management Consultants Inc.
(2009), 97 O.R.
    161 (C.R.), at paras. 24-26.

[3]

The appeal is quashed. The respondent is entitled to its costs fixed at
    $7500 inclusive of disbursements and applicable taxes, payable forthwith.