CITATION:
Rajaratnam v. Wilson, 2011
          ONCA 353

DATE:
          20110505

DOCKET: C52940

COURT OF APPEAL FOR ONTARIO

Laskin, Feldman and MacPherson JJ.A.

BETWEEN

Singarajar Edward Rajaratnam

Applicant (Appellant)

and

David S. Wilson

Respondent (Respondent in Appeal)

Michael Czuma, for the appellant

Mark Elkin, for the respondent

Heard and released orally: May 4, 2011

On appeal from the judgment of Justice J. Stephen ONeill of
          the Superior Court of Justice, dated October 20, 2010.

ENDORSEMENT

[1]

The appellant appeals the judgment of ONeill J. dated
    20 October 2010 dismissing his application to assess two of the respondents
    accounts. One of the accounts, delivered in 1999, was for $33,257.47 and dealt
    with legal fees collected from the settlement of claims arising from two motor
    vehicle accidents in 1996. The second account, delivered in 2008, was for
    $6,776.96 relating to legal fees for two more motor vehicle accidents in 2001.
    The appellant also moves to introduce fresh evidence, seeking a new assessment
    hearing, in order to refer all his accounts with the respondent for assessment.

[2]

We see no error in the application judges reasons. As
    he noted, the parties signed a consent in 2001 relating to previous legal
    accounts, which would include the 1999 account for $33,257.47. The appellant
    received a repayment of $2,500 pursuant to this agreement. He acknowledged in
    the agreement that he had the opportunity to obtain independent legal advice.

[3]

With respect to the 2008 account for $6,776.96, we are
    not persuaded that there are special circumstances that would justify the
    assessment of this account.

[4]

Finally, the fresh evidence would not change the
    result. As the cross-examination of the appellant on his affidavit makes clear,
    the appellant only decided to seek to have his old accounts assessed after he
    decided that the legal bills to his wife were too high. The wifes accounts are
    being assessed. The appellants accounts, which he accepted over a 12-year
    period, should not be re-opened because of his dissatisfaction with the legal
    fees being charged to his wife, especially since those fees are already subject
    to a proper assessment.

[5]

The motion to introduce fresh evidence is denied. The
    appeal is dismissed. The respondent is entitled to his costs of the appeal
    fixed at $5,000 inclusive of applicable taxes.

J. I. Laskin J.A.

K. Feldman J.A.

J. C. MacPherson J.A.


CITATION:
Ranger v. Penterman, 2011
          ONCA 412

DATE:  20110531

DOCKET: C49077

COURT OF APPEAL FOR ONTARIO

Weiler, Rouleau and Karakatsanis JJ.A.

BETWEEN

Claude
          Ranger and Claudette Ranger

Plaintiffs (Appellants on Appeal)

and

Louis Penterman and Patricia Penterman (also known as
          Patricia Leigh McGowan)

Defendants (Respondents on Appeal)

Justin Bertrand, for the appellants

Guy R
é
gimbald,
          for the respondents

Heard:
May 2, 2011

On appeal from the judgment of Justice Michel Charbonneau of
          the Superior Court of Justice dated June 4, 2008.

By the Court:

[1]

The appellants appeal the trial judges decision dated
    June 4, 2008, dismissing their claim for breach of contract or, in the
    alternative, for unjust enrichment in the amount of $89,500 plus costs and
    interest.

[2]

The appellants, Claude and Claudette Ranger, advanced
    monies to the respondents
[1]
, Louis and Patricia Penterman, both directly and
    indirectly, through their son Pierre Ranger, the respondents lawyer. The
    respondents admitted receipt of the money, but denied it was a loan. They claimed
    they had no contact or relationship with the appellants and were not aware that
    the funds were coming from the appellants.

[3]

In dismissing the claim, the trial judge found that
    there were no dealings and no loan agreement between the parties. He found that
    while the respondents received the benefit of the funds, their only
    responsibility was to account to Pierre Ranger.

[4]

The appellants submit that the trial judge erred: in
    refusing to admit documents that were relevant to the advancement of monies to
    the respondents; in failing to consider whether the cheques payable directly to
    the respondents and marked loan evidenced a loan contract; and in failing to
    consider whether the appellants were entitled to their claim based upon unjust
    enrichment.

[5]

For the reasons that follow, we would allow the appeal.

Background

[6]

The appellants provided their son, Pierre Ranger, with cheques
    dated between November 2001 and December 2003, believing the funds to be loans
    to the respondents. Pierre Ranger is a lawyer and was acting for the
    respondents in litigation in Quebec at the time. He testified that the
    respondents had requested a loan to assist with trial and personal expenses
    pending the conclusion of their Quebec litigation and that he contacted his
    parents to provide the funds, as they had loaned the respondents money in the
    past. The respondents claimed their agreement was with their lawyer, for an
    investment in a company that has since gone bankrupt.

[7]

There were three series of cheques. The trial judge found
    that the cheques comprising the first and third series, totalling all but
    $11,000 claimed, were forwarded by the appellants to their son Pierre Ranger,
    intending them to be a loan to the respondents; and that the respondents had
    received the funds or the benefit of those funds. However, the trial judge
    accepted the respondents position that their agreement was with Pierre Ranger
    and not with the appellants.

[8]

The trial judge did not address the issue of unjust
    enrichment and declined to make a finding with respect to the respondents
    testimony that the money was advanced to them by Pierre Ranger as an investment
    in a company that had since gone bankrupt.

[9]

In addition to rejecting the evidence of Pierre Ranger,
    concerning the respondents knowledge that the money being advanced was a loan to
    them from his parents, the trial judge refused to admit documents sent by the
    respondents to Pierre Ranger disclosing the nature of the requests for the
    funds and an acknowledgment of the debt, on the basis that they were protected
    by solicitor-client privilege.

[10]

We will first address the issue of whether the trial
    judge erred in excluding this evidence and then deal with the substantive
    issues.

Exclusion of evidence

[11]

The appellants sought to admit into evidence a series
    of documents in which any reference to the Quebec litigation had been redacted
    by Pierre Ranger. They also placed before the court an unredacted version so
    that the trial judge could have the benefit of assuring himself this is what
    had been done.

[12]

We agree with the appellants that the trial judge erred
    in refusing to admit the redacted version of the documents that make clear that
    the respondents were requesting the funds to pay for their personal needs and
    not as an investment in their company. They confirm the nature of their
    requests for money and the purposes of the loans. As well, in May 2004, the
    respondents advised Pierre Ranger that they acknowledged a debt to the
    appellants  Your Dad will be repaid.

[13]

The trial judge excluded the evidence on the basis that
    they were subject to solicitor-client privilege. While it is not clear that the
    trial judge reviewed the unredacted documents, we were provided with the sealed
    unredacted documents and have reviewed them.

[14]

The fact that the documents were contemporaneous with a
    solicitor-client relationship does not necessarily make the communications in
    the documents privileged. Although there are several references to the ongoing
    litigation and privileged communications in the documents, the specific
    communications in issue were not related to the solicitor-client relationship.
    The respondents were requesting funds to pay for various ongoing living
    expenses pending the final resolution of the lawsuit. The documents include
    specific requests for funds to support living expenses such as groceries, gas,
    utilities, truck payments, property taxes for their home and farm lands, home
    insurance, and other living expenses.

[15]

In our view, the trial judge erred in excluding the
    redacted documents. The requests for funds did not fall within the usual and
    ordinary scope of the professional relationship or within the continuum of
    communications in which the solicitor tendered advice.

[16]

Furthermore, the respondents had already selectively
    introduced some of the documents. Obviously they are entitled to waive
    privilege but they cannot do so on a selective basis that results in an
    incomplete and misleading picture being presented to the court. Having put into
    issue the nature and purpose of the advancement of funds, it would be unfair to
    permit them to introduce some of the communications, but exclude other
    documents relating to the same issue. The redacted versions do not in any way
    disclose communications related to the Quebec lawsuit or solicitor-client
    advice and we hold they are admissible.

[17]

The statements in the documents are inconsistent with
    the respondents testimony and position that the advances were an investment in
    their new company. (It is worth noting that the respondents were unrepresented at
    trial.)

[18]

Statements in the documents make clear that the bulk of
    the monies advanced related to specific requests for personal living expenses.
    They support the appellants position that the monies were advanced as personal
    loans. They do not support the respondents evidence that the monies
    represented an investment by their lawyer in a new company.

[19]

The admission of the documents would very likely have
    resulted in very different credibility findings. As a result, the decision of
    the trial judge must be set aside.

[20]

In our view, however, a new trial is not required,
    except as it relates to the claim for $11,000. The appropriate outcome is
    otherwise clear on the respondents admissions and the documentary record
    before us.

The first series of cheques

[21]

The first series of five cheques, dated between
    November 2001 and January 2002, were made payable to Pierre Ranger, or Pierre
    Ranger in trust, with the notation Penterman. They totalled $21,500 and
    were deposited to Pierre Rangers trust account. The respondents Quebec
    counsel in the litigation was in turn paid $20,000 from the trust account. A
    further $3000 was paid out to Pierre Ranger for disbursements.

[22]

The money was paid to the respondents Quebec lawyer
    for professional services rendered to them during their Quebec trial and for
    disbursements for the direct benefit of the respondents. The respondents were
    ultimately successful in the Quebec litigation. They would clearly have
    understood that the funds were paid on their behalf and the source of those funds
    expected to be repaid.

[23]

Pierre Ranger had previously arranged to have his
    father lend money to the respondents in 1992. In a 1994 letter to the
    respondents, Pierre Ranger advised that his father had loaned the respondents
    the funds and requested that the repayment cheques be made payable to his
    father. In 1999, the respondents repaid the loan with a bank draft payable to
    C. Ranger. The appellants thus had a previous lending relationship with the
    respondents and this evidence, coupled with the evidence of the respondents
    requests for money for living expenses pending the outcome of the Quebec litigation,
    as well as the evidence concerning the third series of cheques clearly
    evidencing subsequent loans discussed below, leads us to conclude that the
    respondents financial relationship in regard to this first series of cheques
    was with the appellants.

[24]

Furthermore, there is no question that the respondents
    subsequently became aware that the appellants were the lenders. One of the
    documents excluded by the trial judge is an admission by the respondents that
    they would repay the appellants.

[25]

The appellants are therefore entitled to judgment for the
    amount of $21,500.

The second payment

[26]

The $11,000 claim for the second category of funds
    relates to a cheque dated August 9, 2002 from a third party, Pierre Seguin,
    made payable to the respondents. The trial judge did not accept the evidence of
    Pierre Ranger that this was money owed to the appellants that was made payable
    to the respondents to make things easier and quicker. He believed the
    respondents that they had been told that the deposit of $10,672 represented
    interest on the GIC that was being held as security in the legal proceedings.

[27]

It is not clear to us based upon the record available
    to us, whether this amount, funded by a third party, was in fact monies
    advanced by the appellants. Nor do we accept the factual characterization of
    the trial judge as it was based on his adverse findings of credibility, which
    we have determined must be set aside. This issue must be retried.

[28]

The claim for $11,000 cannot be determined on this
    record and should be remitted for the trial of an issue.

The third series of cheques

[29]

These 17 cheques were paid between October 2002 and
    December 2003, in amounts ranging from $1000 to $5000, and totalled $57,000.

[30]

The final group of cheques were drawn on the
    appellants account, were payable directly to the respondents, were clearly
    marked loan, and were deposited to the respondents personal account. The
    trial judge failed to note these important facts.

[31]

The respondents admitted in their Statement of Defence
    that they were aware as early as December 2002 that funds were being sent to
    them by one of the appellants. In fact, numerous copies of cheques were
    contemporaneously faxed to the respondents. Furthermore, in many instances, the
    amounts advanced relate to the various requests for money for specific living
    expenses as set out in the excluded documents and the responding cheques.

[32]

While the respondents also testified that the advances
    were based upon an agreement with Pierre Ranger that he would invest in their
    new company, this is inconsistent with the documentary evidence.

[33]

In our view, this record clearly establishes a loan
    contract between the parties for the amount of those cheques totalling $57,000.

Interest

[34]

There is insufficient evidence supporting the
    appellants claim for 8% interest. In the absence of any documentary evidence
    regarding interest, the appellants shall have 5% interest per year pursuant to s.
    3 of the
Interest Act
, R.S.C., 1985,
    c. I-15.

Conclusion

[35]

Accordingly, the appeal is allowed. The appellants
    shall have judgment in the amount of $78,500 plus costs and interest at 5% per
    year. The issue regarding the third party cheque for $11,000 is remitted back
    for the trial of an issue.

[36]

The appellants are entitled to their costs of the
    appeal and at trial. We do not have submissions with respect to costs. Subject
    to receiving further submissions from the parties within 10 days of the release
    of these reasons, we would fix the costs of the appeal at $15,000 and the trial
    costs at $20,000 both payable to the appellants.

RELEASED:  May 31,
    2011 KMW

K.M. Weiler J.A.

Paul
    Rouleau J.A.

Karakatsanis J.A.

[1]
Reference to the appellants is a reference to either one of or both of the
    appellants, Claude and Claudette Ranger. Similarly, reference to the
    respondents is a reference to either one of or both of the respondents, Louis
    and Patricia Penterman.


CITATION:
Runnalls
          (Re), 2011 ONCA 364

DATE: 20110509

DOCKET: C52689

COURT OF APPEAL
          FOR ONTARIO

OConnor A.C.J.O., Blair and Epstein JJ.A.

BETWEEN:

Her Majesty the Queen

Respondent

and

The Person in Charge of the Northeast Mental Health
          Centre

Respondent

and

Nelson
          Shaun Runnalls

Appellant

Nelson Runnalls, appearing in person

Michael Davies, as
amicus curiae

Grace Choi, for the respondent, Her Majesty the Queen

Janice Blackburn, for the respondent, the Person in Charge
          of the Northeast Mental Health Centre

Heard:
April 28, 2011

On appeal from the disposition of
          the Ontario Review Board dated July 23, 2010.

ENDORSEMENT

[1]

In 2004, the appellant was found not criminally
    responsible on account of a mental disorder on a number of criminal charges.  Since then, he has been detained at the North
    Bay Psychiatric Hospital.

[2]

The Ontario Review Board conducted an annual review
    hearing on July 12, 2010.  In its
    disposition on July 23, 2010, the Board continued the appellants detention
    subject to conditions.  The appellant,
    who represents himself on this appeal, appeals the disposition and requests
    that this court substitute a conditional or absolute
discharge

[3]

This court appointed Mr. Michael Davies to act as
amicus curiae
on the appeal.
Amicus
argues that the Board erred by failing to appoint counsel or
amicus curiae
to assist the appellant at
    his hearing or, in the alternative, by failing to provide proper assistance to
    the appellant to assure a full and fair hearing.

[4]

We will address the arguments of the
amicus curiae
first.  At the commencement of the hearing before the
    Board, the appellant sought an adjournment to await the appeal of the previous
    years disposition.  The appellant also
    requested an adjournment so that he could have an independent psychiatric
    assessment.  Both requests were denied.

[5]

During the course of the discussion relating to the
    adjournment requests, counsel for the hospital indicated that the hospital
    would prefer to see the appellant represented by counsel.  The appellant, who had been represented by
    counsel on other occasions, had not requested counsel.  In the ensuing discussion, the following
    exchange took place between the Chair and the appellant:

The Chair: ... Would you get a lawyer if you got an
    adjournment?

The appellant: Well, if.

The Chair: [y]ou really do need counsel.

The appellant: Well, what do you need counsel
for ...

The Chair: To defend you, to act for you, who knows
    what hes doing.

[6]

On returning, the Board dismissed the appellants
    application for an adjournment, concluding that the appellant elected not to
    have a lawyer and that a further psychiatric examination would be redundant.

[7]

In his Notice of Appeal, the appellant did not rely on
    the Boards failure to appoint counsel as a reason for setting aside the
    Boards disposition.

[8]

Section 672.5(7) of the
Criminal Code
provides that an accused has the right to be
    represented by counsel at a hearing before the Board.

[9]

Section 672.5(8) casts a duty on the Board to appoint
    counsel in certain circumstances.  It provides
    in part as follows:

(8)  If an
    accused is not represented by
counsel,
Review Board
    shall, either before or at the time of the hearing, assign counsel to act for any
    accused

(a)

(b)
wherever
the interests
    of justice so require.

[10]

In
R. v. LePage
(2006),
    214 C.C.C. (3d) 105, this court held that s. 672.5(8) confers the authority
    upon the Board to appoint counsel to represent the NCR accused or to appoint
amicus curiae
.  The Board may choose to appoint
an
amicus
curiae
when an accused does not wish to
    have counsel represent him or her.

[11]

The question arises whether the Board properly
    considered the test in s. 672.5(8) in deciding to proceed with the appellants
    hearing without appointing counsel.

[12]

We start by noting that the language of the section is
    mandatory.  The Board
shall
appoint
    counsel if the interests of justice so require.  In Ontario, we are fortunate to have a number
    of lawyers, such as Mr. Davies, who are available to act for an NCR accused or
    as
amicus curiae
in these types of cases.  Indeed, the Board often appoints counsel.

[13]

In considering whether the interests of justice
    require the appointment of counsel, the Board should determine whether there
    can be a fair hearing if it proceeds with the NCR accused unrepresented.  A variety of factors may be relevant to such
    a consideration, including the wishes of the NCR accused, the mental state of
    the NCR accused and his or her capacity to participate in the hearing without
    the assistance of counsel, the history of the proceedings, the nature of the
    issues likely to arise, and the impact of any delay in obtaining counsel.  There may well be other factors.  No factor is determinative.  In the end, the Board should assess the
    totality of the circumstances in arriving at its decision.

[14]

A Review Board should take care in drawing conclusions
    about an NCR accuseds capacity to participate in a hearing without counsel
    based on his or her involvement in earlier hearings or other legal
    proceedings.  Annual review hearings are
    mandatory.  An NCR accused does not
    initiate an annual review.  Moreover, an
    NCR accuseds mental state may vary significantly from one year to the next
    depending on a variety of factors.  Given
    that NCR accused are among the most vulnerable persons in the justice system and
    given that annual reviews engage their liberty interests, it is important that
    Review Boards carefully consider whether the interests of justice require that
    an NCR accused be represented before proceeding on an unrepresented basis.

[15]

While the reasons of the Board for proceeding without
    appointing counsel for the appellant are brief, we do not conclude that the
    Board erred in reaching the conclusion to proceed.  Both the Chair and counsel for the hospital
    had expressed the desirability of appointing counsel, no doubt because hearings
    with counsel tend to be more focussed.  The appellant had indicated that he did not need counsel.  Obviously, the Board was alive to the issue
    when it retired.  After returning, the
    Chair said:

We discussed it back and forth and we see no reason
    to adjourn this case again.  It was
    adjourned in May.  There has to be some
    finality to these hearings, so were going to proceed this afternoon.  Its very regretful that Mr. Runnalls does
    not have
counsel,
I think that is his choice though.  Certainly counsel is available for him, and
    Im sure that he could have retained a lawyer but he elected not to.

His request for a further psychiatric examination I
    think is rather redundant in view of the number of years that he has been under
    psychiatric care, and previous examination, lengthy psychological examination
    and I see numerous psychiatric examinations, so we will proceed.

[16]

In these circumstances, it is not unreasonable to conclude
    that this specialized Board, chaired by a retired Superior Court judge, was
    aware of the requirement set out in s. 672.5(8) of the
Criminal Code
and considered whether it could proceed to have a
    full and fair hearing without the benefit of having the appellant represented.  It decided that it could.

[17]

We note that in
    making its decision, the Board would have had the benefit of the hospital
    report detailing the history of the appellants detention and his mental health
    problems.  The Board would also have been
    aware that the appellant had participated in a number of other hearings
,
on some occasions with counsel.  In addition, it appears that the appellant had
    the benefit of discussions with counsel prior to the July 12th hearing.  He told the Board that Michael Davies, the
amicus curiae
in the present appeal, had
    recommended that he seek a proper psychological assessment at his July 12th
    hearing.

[18]

For the above reasons, we are not persuaded that the
    Board failed to apply the proper test in not appointing counsel or
amicus curiae
.

[19]

We reviewed the transcript of the hearing which took
    place with the appellant unrepresented.  We do not think that the manner in which the Board conducted the hearing
    constituted a miscarriage of justice.  Nor are we of the view that the Boards disposition in continuing the
    appellants detention constituted a miscarriage of justice.  We set out our reasons for this latter
    conclusion below.  Accordingly, we would
    not interfere with the Boards disposition on the basis that it failed to
    appoint counsel pursuant to s. 672.5(8) of the
Criminal Code
.

[20]

The
amicus
curiae
also argues
that the Board erred in failing to provide appropriate assistance to the
    appellant during the conduct of the hearing.
Amicus
suggests that the Board
    should have explained the process that would be followed, the order of events
    and the ways the appellant could participate in much the same manner that a judge
    presiding at a criminal trial would do for an unrepresented accused:  see for example,
R. v. Tran
(2001), 55 O.R. (3d) 161 (C.A.).

[21]

We consider it essential that a Review Board conducting
    a hearing for an unrepresented NCR accused ensure that the accused understands
    the process and is able to participate to the extent necessary to ensure a fair
    hearing.

We stop short, however, of adopting any hard and fast rules as to
    how a Board should carry out this responsibility.  As mentioned above, the Review Board is a
    specialized body, some of whose members have legal and medical
    backgrounds.  The nature of review
    hearings will vary.  The backgrounds and
    capacities of NCR accused will also vary widely.  What is important in this respect is that the
    Board ensure that the NCR accused understands the nature of the process and is
    able to participate in the hearing.  If
    the Board is not satisfied with respect to these matters, then it should
    adjourn the hearing and exercise its authority to appoint counsel or
amicus curiae
.

[22]

The appellants familiarity with the Board, of course,
    is not determinative of the issue of whether he understood the nature of the
    process and could participate.  However,
    the transcript of the hearing shows that the appellant understood the process
    and was able to participate.  While the
    appellants cross-examination of the only witness called was unfocussed with
    respect to certain points, he did elicit several very relevant points that were
    of assistance to the Board.

[23]

In the end, we are not persuaded that the failure of
    the Board, in this case, to explicitly outline the process that would be
    followed or to otherwise assist the appellant
,

resulted
a miscarriage of justice.  That said
,
it seems
    to us that the best practice for hearings of this nature would be for the Board
    to have a direct discussion with an unrepresented accused to satisfy itself
    that the accused understands the process and is able to participate.

[24]

Finally, we turn to the appellants argument that the
    Boards decision to continue his detention was not warranted on the
    evidence.  We do not accept this
    argument.

[25]

The test for review is one of reasonableness:  see
R.
    v. Owen,
[2003] 1 S.C.R. 779.  The Boards
    reasons for disposition set out many significant factors supporting its
    decision, including the appellants failure to have insight into his mental
    illness and need for medication; the unlikelihood that the appellant would
    continue his medication on his own; his history of alcohol and cannabis use;
    his history of aggressive and violent behaviour when under the influence of
    these substances; his refusal of counselling for substance abuse; his lack of
    acknowledgement of a problem with substance abuse and its impact on his
    behaviour; his association with individuals involved with illicit substance
    abuse; his past criminal record for violence and breaches of court orders; and
    his refusal of educational interventions, which impeded rehabilitation
    goals.

[26]

In our view, the decision of the Board to continue the
    detention was reasonable and supported by the evidence.

[27]

In the result, the appeal is dismissed.

D. OConnor A.C.J.O.

R.A. Blair J.A.

Gloria Epstein J.A.


CITATION: Sauve v. Quebec (Attorney General), 2011 ONCA
      369

DATE:  20110509

DOCKET: C50013

COURT OF APPEAL FOR ONTARIO

Weiler, Blair and Karakatsanis JJ.A.

BETWEEN

Gary Sauve

Plaintiff  (Appellant)

and

Attorney
          General of Quebec

Surete De Quebec, Roland Leblanc

Defendants (Respondents)

Gary Sauve, in person

Jean Faullem, for the Attorney General of Quebec

Heard: May 2, 2011

On appeal from the judgment of Justice Robert Maranger of the
          Superior Court of Justice, dated January 19, 2009.

APPEAL BOOK ENDORSEMENT

[1]

The appellant, Gary Sauve, appeals to the Court of Appeal for Ontario
    from the order of Honourable Judge Maranger dated January 19, 2009 made at the
    Ontario Superior Court in the City of Ottawa, Ontario dismissing his statement
  of claim.

[2]

We are satisfied that the motion judge did not err in dismissing this
    Statement of Claim against the Attorney General of Quebec and its agents. We
    agree with the motion judge that the Province of Quebec has procedural immunity
    against such a suit in Ontario.

[3]

The Crown is immune against suit except as expressly provided by statute
    or by necessary implication. While the provincial legislation permits suits
    against the Crown, it provides the manner in which those suits may be brought.
    The
Quebec Civil Code
provides specific rules governing actions against
    the Province of Quebec. Those rules apply only to Quebec actions. Thus, the
    legislation permitting proceedings against the Crown in right of the province,
    renders Quebec liable to be sued in the courts of its own province but not in
    the courts of other provinces.

[4]

Clearly this case does not fall within the common law exception for
    actions based upon a provinces commercial activity in another province. Nor is
    there any authority in Ontario permitting such suits.

[5]

As a result, there is no need to deal with the other grounds of appeal.
    The appeal is dismissed.


CITATION:
Schmidt v. Jay
          Electric Limited, 2011 ONCA 388

DATE:  20110518

DOCKET: C53058

COURT OF APPEAL FOR ONTARIO

MacPherson, Armstrong and Karakatsanis JJ.A.

BETWEEN

Lorenz Schmidt

Appellant / Respondent by Cross-Appeal

and

Jay Electric Limited and Bellwood Sheet Metal Limited

Respondents / Appellants by Cross-Appeal

and

Superintendent of Bankruptcy

Intervenor

Court File No.:
          31-OR-455190-T

ONTARIO

SUPERIOR
          COURT OF JUSTICE
IN BANKRUPTCY
          AND INSOLVENCY

IN THE MATTER OF THE BANKRUPTCY OF

LORENZ
          SCHMIDT, residing in the Town of Woodbridge in the Province of Ontario

Frank Bennett, for the appellant

Roy Wise, for the respondents

Liz Tinker, for the
intervenor

Irving Burton, for the trustee in bankruptcy

Heard
and released orally: May 16, 2011

On appeal and cross-appeal from the order of Justice Alexandra
          Hoy of the Superior Court of Justice, dated September 17, 2010.

ENDORSEMENT

[1]

The appellant appeals the decision of Hoy J. dated Sept
    17, 2010 revoking his discharge from bankruptcy. The
respondents
cross-appeal on the question of costs.

[2]

The appeal judge admitted fresh evidence and revoked
    the discharge. She directed the appellant to file a fresh statement of affairs
    and produce various documents and the official receiver to hold
a
s. 161 examination.

[3]

On the appeal, the appellant submits that the appeal
    judge erred in admitting fresh evidence because the creditors had numerous
    opportunities to examine the appellant and the evidence could have been
    obtained with due diligence. We agree with the decision and the reasons of the
    appeal judge on fresh evidence. Even if the appellants non-disclosure was unintentional,
    the creditors were entitled to rely on his disclosure.

[4]

The appellant further submits that the decision to
    revoke the discharge was unreasonable and punitive as a refusal to discharge is
    reserved for the most extreme cases and the worst misconduct. In our view, the
    failure to disclose significant assets was a serious omission which justified
    the appeal judge in revoking the discharge. The appeal judge found that the
    Registrar did not have a proper record for an informed decision. We agree.

[5]

On the cross-appeal, the creditors ask that the payment
    of the costs order be made a condition of any application for discharge. The
    appeal judge exercised her discretion in reserving to the Registrar the issue
    of whether payment of costs should be a prior condition of discharge. She made
    no error in principle.

[6]

Accordingly, the appeal and the cross-appeal are
    dismissed.

[7]

The appellant shall pay costs fixed in the amount of
    $14,000, all inclusive, payable forthwith and in any event as a condition
    precedent to the appellants application for a discharge from bankruptcy.

J.C. MacPherson J.A.

Robert P. Armstrong J.A.

Karakatsanis J.A.


CITATION:
Secure Solutions
          Inc. v. Smiths Detection Toronto Ltd., 2011 ONCA 337

DATE:
          20110503

DOCKET: C53347

COURT OF APPEAL FOR ONTARIO

Goudge, Gillese and Watt JJ.A.

BETWEEN

Secure Solutions Inc.

Plaintiff/Respondent

and

Smiths Detection Toronto Ltd. and Smiths Detection
          Montreal Inc.

Defendants/Appellants

Gideon Forrest and Zohaib Maladwala, for the appellants

Jonathan C. Lisus and Andrew J. Winton, for the respondent

Heard:
April 21, 2011

On appeal from the order of Justice Gray of the Superior Court
          of Justice, dated February 16, 2011.

ENDORSEMENT

[1]

This is an appeal from the order of Gray J. declining
    to stay the respondents action.

[2]

The appellants primary argument is that there is an
    agreement between the parties containing an arbitration clause that encompasses
    the issues raised in the litigation and, as a consequence, the litigation
    process must defer to arbitration.

[3]

The first issue is whether there is arguably an
    arbitration clause in whatever contract continues to exist between the parties.
    The motion judge appeared very sceptical that there was any such contract.
    However, for the purposes of the motion before him, he was prepared to proceed
    on the assumption that such a contract existed. He did not decide that issue.

[4]

In our view, it is not arguable that whatever contract
    existed between the parties in 2009 and 2010 (when the events that triggered
    the litigation took place) it included an arbitration clause. Over the 13 years
    of continuous dealings between the parties there was a written contract in place
    for only two 12 month periods:  the 2005 contract and the 2007 contract. Only
    in those two contracts is there reference to arbitration. By its terms, the
    second of these, the 2007 contract, expired on July 17, 2008. It was not
    renewed, as the appellants clearly have acknowledged. In 2009, the appellants
    took the policy decision that their disputes with the respondent would not be
    arbitrated. While the parties continued to do business after July 2008, the
    terms of any oral agreement reflecting the issues on which they were
ad idem
, could only be gleaned from
    their conduct. There was nothing in writing. In the face of taking the position
    in 2009 that they did not want their disputes arbitrated but litigated, and
    having clearly communicated that to the respondent, it is very difficult to see
    how the appellants could establish a meeting of the minds to the effect that
    their disputes would be arbitrated. In our view, that position is simply not
    arguable. If there is no arbitration provision contracted for at the relevant
    time, that ends the matter.

[5]

Based on the assumption of an arbitration provision,
    the motion judge went on to decide that it was an implied oral one, not one in
    writing as required by the clear language of s. 5(3) of the
International Commercial Arbitration Act
and thus the provincial
Arbitration Act
applied. He found that the claims of breach of trust, breach of fiduciary duty,
    conspiracy and unjust enrichment did not remotely come within that clause and
    that it was inappropriate to grant a partial stay of any remaining issues. All the
    issues should be decided in one proceeding. Finally, he found that, as a matter
    of fact, there was no forum selection clause in any oral agreement between the
    parties, and in any event, Ontario is the more convenient forum for the
    litigation.

[6]

The appellants attack each of these findings. Despite
    Mr. Forrests vigorous and thorough advocacy, we do not agree that the motion
    judge erred in disposing of any of these issues. Indeed, we agree with him. His
    reasons are persuasive and we would adopt them.

[7]

The appeal must be dismissed. Costs to the respondent
    fixed at $15,000 inclusive of disbursements and applicable taxes.

S. T. Goudge J.A.

E. E. Gillese J.A.

David Watt J.A.


CITATION: Soan Mechanical Ltd. v. Terra Infrastructure
      Inc., 2011 ONCA 371

DATE: 20110512

DOCKET: C51458

COURT OF APPEAL FOR ONTARIO

Rosenberg, Simmons and Blair JJ.A.

BETWEEN

Soan Mechanical Ltd.

Plaintiff (Respondent)

and

Terra
          Infrastructure Inc., Daniel Demelo,

Tony Di Battista and Richard Neath

Defendants (Appellants)

Marco Drudi, for the appellant Terra Infrastructure Inc.

Lianne Armstrong, for the respondent

Heard and endorsed: May 6, 2011

On appeal from the judgment of Justice Peter B. Hockin of the
          Superior Court of Justice dated December 15, 2009.

APPEAL BOOK ENDORSEMENT

[1]

There is no merit to the appeal as to liability. The lack of personal
    knowledge does not affect the admissibility of business records: s. 35(4) of
    the
Ontario Evidence Act
. These records meet the definition of business records
    in s. 35(2).

[2]

As to the pre-judgment interest, the circumstances including the lengthy
    time that this simple account was left unpaid, would justify a rate above the
Court
    of Justice Act
rate.

[3]

There is an error in the judgment. Paragraph 2 is deleted.

[4]

The judgment will bear interest at the rate of 2 percent.

[5]

In all other respects, the appeal is dismissed with costs fixed at $5,000
    inclusive of disbursements and H.S.T.


CITATION: St. Andrew Goldfields Ltd. v. Newmont Canada
      Limited, 2011 ONCA 377

DATE: 20110513

DOCKET: C50925

COURT OF APPEAL FOR ONTARIO

Cronk, MacFarland and Rouleau JJ.A.

BETWEEN

St. Andrew Goldfields Ltd.

Applicant/Respondent in Appeal

and

Newmont
          Canada Limited (now Newmont Canada Corporation)
,

Barrick Gold
          Corporation, Royal Gold, Inc. and

RGLD Gold Canada, Inc.

Respondents/
Appellant
/Respondents
          in Appeal:

Royal Gold, Inc. and RGLD Gold Canada,
          Inc.

Jessica Kimmel and Daniel Cappe, for the appellant Newmont
          Canada Limited (now Newmont Canada Corporation)

Peter Wells and Rosamaria Longo, for the respondent St. Andrew
          Goldfields Ltd.

David I.W. Hamer and Junior Sirivar, for the respondents Royal
          Gold, Inc. and RGLD Gold Canada, Inc.

Heard: March 28, 2011

On appeal from the judgment of Justice Lois B. Roberts of the Superior
          Court of Justice dated July 23, 2009, with reasons reported at
[2009] O.J. No. 3266
.

Rouleau J.A.:

[1]

Newmont Canada Limited (now Newmont Canada Corporation) (Newmont
    Canada) appeals those portions of the trial judgment granting declaratory
    relief limiting the obligation of St. Andrew Goldfields Ltd. (St. Andrew) to
    indemnify Newmont Canada for all royalties payable pursuant to a net smelter return
    (NSR) royalty agreement with Barrick Gold Corporation (Barrick) and its
    successors and assigns Royal Gold, Inc. and RGLD Gold Canada, Inc. The trial
    judge found that St. Andrews indemnification obligation was limited to a flat
    rate of 0.013% NSR, the amount indicated in the various schedules to the
    agreements negotiated between St. Andrew and Newmont Canada for the purchase of
    the Holloway-Holt Gold Camp. Newmont Canada remained responsible for the NSR royalty
    payments to Barrick and its successors and assigns in respect of the
    Holloway-Holt Gold Camp over and above the 0.013% NSR.

FACTS

[2]

In the fall of 2004, Newmont Canada and Barrick
    completed the purchase by Newmont Canada of the Holt-McDermott mine, mill and
    mill-related facilities in northern Ontario. As part of this transaction,
    Newmont Canada entered into an NSR royalty agreement with Barrick which
    required Newmont Canada to pay Barrick or its assigns royalties on the NSR for
    mineral produced at the mine.

[3]

The Barrick royalty agreement provided that
    Newmont Canada would remain liable under the Barrick royalty agreement unless
    it obtained an assumption agreement from the transferee of the obligations
    under the Barrick royalty agreement and Barrick approved of this transfer.

[4]

As found by the trial judge, Newmont Canada had misread
    the provisions in the Barrick royalty agreement, erroneously believing that the
    royalty was an insignificant flat rate of 0.013% NSR. In fact, it was a sliding
    scale royalty obligation that increased substantially as the price of gold
    increased. Believing that the low 0.013% NSR was an error on Barricks part,
    Newmont Canada did not question Barrick on the provision nor did it seek to
    modify or change the clause.

[5]

Through the purchase, Newmont Canada consolidated
    existing adjacent landholdings with the Holt-McDermott mine to create the
    Holloway-Holt Gold Camp. On August 11, 2006, in anticipation of selling the Holloway-Holt
    Gold Camp, including the Holt-McDermott Mine, to St. Andrew, Newmont Canada
    transferred all the assets and liabilities of the Holt-McDermott mine to one of
    its subsidiaries, Holloway Mining Company (Holloway).  Although the transfer
    to Holloway was stated to be of all the assets and liabilities of the
    Holt-McDermott mine, including the Barrick royalty agreement, Barricks
    approval for an assignment of the Barrick royalty agreement was not sought. Instead,
    the agreements between Holloway and Newmont Canada provided that Holloway would
    indemnify Newmont Canada for its royalty obligations to Barrick pursuant to the
    Barrick royalty agreement. However, because Newmont Canada was still operating
    under the misapprehension that the Barrick royalty agreement obligation was
    only 0.013% NSR, every reference in the schedules attached to the agreements
    between Newmont Canada and Holloway stipulated that the royalty obligation was
    0.013% NSR.

[6]

In the fall of 2006, Newmont Canada, St. Andrew
    and Holloway concluded the purchase by St. Andrew of the Holloway-Holt Gold
    Camp. The purchase was effected by St. Andrew purchasing all the shares of
    Holloway from Newmont Canada. This was followed by the amalgamation of St.
    Andrew and Holloway. As with the earlier transfer to Holloway, Newmont Canada
    did not seek to assign the Barrick royalty agreement to St. Andrew and did not
    seek Barricks approval for the transaction. Instead, Newmont Canada chose to
    enter into an indemnity agreement whereby St. Andrew agreed to indemnify
    Newmont Canada for its royalty obligation pursuant to the Barrick royalty
    agreement.

[7]

Once again, because Newmont Canada was still
    operating under the erroneous belief that the royalty obligation under the
    Barrick royalty agreement was the flat rate of 0.013% NSR, all the
    documentation between Newmont Canada, Holloway and St. Andrew stipulated that
    the amount of the Barrick royalty obligation, the obligation St. Andrew agreed
    to indemnify, was 0.013% NSR. None of the parties knew, at that time, that the royalty
    obligation under the Barrick royalty agreement was in fact substantially greater.

[8]

In the fall of 2008, Barrick gave notice to
    Newmont Canada that it intended to sell its interest in the Barrick royalty
    agreement to Royal Gold, Inc. It is at this point that Newmont Canada and St.
    Andrew discovered that the Barrick royalty agreement in fact provided for a NSR
    royalty rate substantially greater than a flat rate of 0.013% NSR.

[9]

St. Andrew then brought the present application seeking
    to have the rights and obligations of the parties pursuant to the various
    contracts determined. Over the course of several case conferences, the parties
    came to an agreement to have the matter proceed by way of a trial of seven
    issues. A
s the parties had agreed to limit the issues, the trial judge
    restricted her analysis to these seven issues. The issues as between Newmont
    Canada and St. Andrew involved the correct interpretation of the agreements and
    neither party took the position that the agreements were void or unenforceable.

[10]

At the conclusion of the trial, the court ruled
    in favour of St. Andrew, concluding in part that:

1)

Newmont Canada was the party that was directly responsible to
      Barrick and its assigns for the performance of the Barrick royalty agreement, including
      payment of the NSR royalty specified therein; and

2)

St. Andrew was only required to indemnify Newmont Canada for the
      fixed royalty amount of 0.013% NSR stipulated in the various agreements entered
      into between them.

[11]

Newmont Canada does not appeal the first finding. The issue on appeal is
    the correctness of the second findingthat is, whether St. Andrews indemnity
    obligation is limited as found by the trial judge or, as alleged by
Newmont Canada, covers all royalty payments Newmont Canada is
    required to make under the Barrick royalty agreement.

[12]

Newmont Canada argues that the trial judge erred in her interpretation
    of the agreements and failed to identify and give effect to their true
    commercial purpose and intent. Had she done so, she would have concluded that
    the indemnity obligation of St. Andrew encompassed all royalties payable under
    the Barrick royalty agreement, notwithstanding the fact that the various
    schedules to the agreements erroneously stated that the royalty obligation under
    the Barrick royalty agreement was 0.013% NSR.

ISSUES

[13]

The questions to be resolved are as follows:

i)

Did the trial judge err in concluding that St. Andrews indemnity obligation
        to
Newmont Canada was limited to the flat rate of 0.013% NSR
          as stipulated in the various schedules to the agreements rather than the
          royalty obligation specified in the Barrick royalty agreement itself?

ii)

Did the trial judge err in failing to consider that, by amalgamating
        with Holloway, St. Andrew became responsible for all of Holloways obligations
        including the obligation to indemnify
Newmont Canada for all royalty
          payments made pursuant to the Barrick royalty agreement?

ANALYSIS

1)

Was the indemnity obligation
    limited to 0.013% NSR?

[14]

Newmont Canada argues that on a proper reading
    of the contracts and the clear expression of intention of the parties, both the
    assumption of liability and indemnity obligations of St. Andrew encompass all the
    royalty amounts payable under the Barrick royalty agreement. This is so
    notwithstanding the fact that certain schedules to the agreements erroneously
    described the Barrick royalty obligation as being 0.013% NSR.

[15]

In essence, Newmont Canada argues that in
    transactions of this naturea sale of a mineit would be understood that
    performance of all obligations related to the mine, including the Barrick
    royalty agreement, would transfer with the mining assets. The parties would clearly
    have intended that Newmont Canada divest itself of all assets and obligations
    associated with the Holloway-Holt Gold Camp and that St. Andrew acquire these
    same assets and liabilities.

[16]

In support of this interpretation, Newmont
    Canada relies on various provisions in the agreements between St. Andrew,
    Holloway and Newmont Canada whereby St. Andrew agreed to assume the liabilities
    flowing from contracts that were listed in a schedule to each agreement. One of
    the contracts listed in these schedules is the Barrick royalty agreement. Newmont
    Canada argues that, in determining St. Andrews indemnity obligation, the terms
    of the Barrick royalty agreement should take precedence over the description of
    the Barrick royalty obligation as being 0.013% NSR.

[17]

In Newmont Canadas view, the various references
    to the royalty obligation being limited to 0.013% NSR were no more than representations,
    albeit made in error, and did not detract from the true intention of the
    parties, which was that St. Andrew was assuming all of Newmont Canadas obligations
    under the Barrick royalty agreement.

[18]

I disagree. From the testimony of the parties it
    is apparent that the extent of a partys royalty obligations is usually an
    important component of any sale of mining assets. All the documents detailing
    the sale of the Holloway-Holt Gold Camp to St. Andrew specified that the royalty
    payable pursuant to the Barrick royalty agreement was a flat rate of 0.013% NSR.
    This 0.013% NSR royalty was the Newmont Canada royalty obligation that St.
    Andrew agreed to indemnify. As representatives of Newmont Canada testified, at
    the time they believed that the royalty rate in the Barrick royalty agreement
    was in fact only 0.013% NSR. They therefore believed the description in the
    agreement to be accurate.

[19]

As noted by the trial judge, all the witnesses,
    including the expert witnesses, considered the 0.013% NSR to be a royalty rate
    so low as to be insignificant and not worth investigating. In other words, the
    balance of the provisions of the Barrick royalty agreement was of no
    consequence. Once the rate and type of royalty was known, little else that was contained
    in the royalty agreement was of much significance. This contrasts with the
    evidence that the actual rate stipulated in the Barrick royalty agreement would
    lead to very substantial royalty payments, particularly with the current high price
    of gold.

[20]

Although the Barrick royalty agreement was one
    of the agreements listed in a schedule to the purchase agreement between St.
    Andrew, Holloway and Newmont Canada, the Barrick royalty agreement was not
    appended to the purchase agreement nor to
any of the
    contracts that documented the transaction.
Further,
    despite having requested copies of all the documents referred to in the
    agreements, including the Barrick royalty agreement, St. Andrew was not given copies
    until the day of closing. In these circumstances, the trial judge found that
    it is hardly reasonable for Newmont to argue that St. Andrew could and should
    have looked at the Barrick royalty agreement prior to closing.

[21]

The fact that the common intention was to have
    St. Andrew indemnify Newmont Canada for a fixed royalty of 0.013% NSR rather
    than to have St. Andrew assume the full extent of Newmont Canadas royalty obligations
    under the Barrick royalty agreement is further evidenced by the fact that Newmont
    Canada deliberately chose not to seek an assignment of the Barrick royalty
    agreement to St. Andrew. Newmont Canada preferred instead to obtain an
    indemnity from St. Andrew. As set out in the trial judges reasons,

Newmont did not seek Barricks consent
    to St. Andrews assumption of Newmonts obligations under the Barrick royalty
    agreement because Newmont thought that the Barrick royalty was insignificant. Newmont
    was therefore prepared to assume the risk of remaining primarily liable to
    Barrick. Mr. Dehlin [Director of International Land at Newmont Canada]
    testified that he and his colleagues understood that if Newmont did not obtain
    Barricks agreement, then Newmont would not be relieved of its obligations
    under the Barrick royalty agreement.

[22]

I understand that, by concluding that Newmont
    Canada is responsible for the royalty payments to Barrick in excess of the
    0.013% NSR, there may well be circumstances where the operation of the mine by
    St. Andrew is economically viable only because Newmont Canada is bearing
    virtually all the royalty obligations pursuant to the Barrick royalty
    agreement. This, however, is the result of the agreements Newmont Canada
    negotiated. Newmont Canada is a highly sophisticated mining corporation. It
    agreed to the royalty clause in the Barrick royalty agreement, without seeking
    clarification, because it believed it could benefit from an error on Barricks
    part. Then, in the sale to St. Andrew, it made a conscious decision to remain
    primarily liable to Barrick for the Barrick royalty agreement. It did not
    therefore divest itself of all the assets and obligations relating to the
    Holloway-Holt Gold Camp. Although Newmont Canada believed that the indemnity it
    negotiated with St. Andrew was for an amount equal to the obligation it had
    retained, it was wrong.

[23]

The
specific reference in the agreements
    to the flat rate of 0.013% NSR was not made erroneously or inadvertently. It
    reflected the understanding of the parties, albeit in error, of what the
    Barrick royalty agreement provided for. Given the repeated specific reference
    to the 0.013% NSR figure and the fact that knowing the rate and type of royalty
    provided virtually all the relevant information St. Andrew needed regarding the
    Barrick royalty agreement, the rate, or, specifically, its insignificance was
    central to the purchase and central to the bargain that the parties negotiated.

[24]

In my view, therefore, the evidence at trial
    amply supported the trial judges conclusions that Newmont Canada and St.
    Andrew believed that the royalty was a flat rate of 0.013% and therefore
    insignificant, that the Barrick royalty agreement formed no part of their
    discussions or negotiations, and did not affect the purchase price and that
    the description of the royalty as being a flat rate of 0.013% NSR accurately
    reflects the agreement that Newmont and St. Andrew had made concerning the
    Barrick royalties that St. Andrew agreed to assume.
Further, as found
    by the trial judge, it was reasonable for St. Andrew not to have examined the
    underlying Barrick royalty agreement. The amount of the royalty was
    insignificant and as a result, so was the royalty agreement.

[25]

Finally, I would not give effect to Newmont Canadas submission that the
    stipulated royalty rate of 0.013% NSR was no more than a representation and
    that the agreements between the parties that St. Andrew was assuming all the obligations
    of a long list of contracts, which included the Barrick royalty agreement,
    should govern. In my view, the trial judge correctly concluded that the
    numerous specific references in the agreements to the Barrick royalty agreement
    rate being 0.013% NSR reflected the intention of the parties and in the
    circumstances, they overrode the general references to St. Andrew assuming the
    obligations in the contracts listed in the schedules to the agreements.

2)

The impact of the amalgamation
    of Holloway with St. Andrew

[26]

Newmont Canada argues that, because Holloway
    assumed all the obligations of Newmont Canada respecting the Holt-McDermott
    mine, the subsequent purchase by St. Andrew of all the shares of Holloway and
    the amalgamation of Holloway and St. Andrew results, in law, in St. Andrew
    having assumed the obligations under the Barrick royalty agreement.

[27]

Newmont Canada submits that the trial judge
    erred in failing to address this issue. Had she done so, she would have
    concluded that St. Andrew was responsible for all of Newmont Canadas
    obligations pursuant to the Barrick royalty agreement.

[28]

I would not give effect to this submission. The
    trial judge was aware of the transactions leading to the amalgamation of
    Holloway and St. Andrew. This is apparent from a footnote to her reasons in
    which the various transactions are outlined.

[29]

Although she identified the various underlying
    transactions, the trial judge did not separately review the impact of the transfer
    by Newmont Canada to Holloway of the assets and liabilities relating to the
    Holt-McDermott mine or the impact of the subsequent amalgamation of Holloway
    and St. Andrew. While it might have been preferable had she done so, a review of
    that documentation adds little to the analysis she did carry out. When Newmont
    Canada transferred the assets and liabilities of the Holt-McDermott mine to
    Holloway, it did not assign the Barrick royalty agreement to Holloway nor did
    it seek approval from Barrick for the assignment. As in the sale to St. Andrew,
    Newmont Canada sought only an indemnity from Holloway of Newmont Canadas
    royalty obligation under the Barrick royalty agreement, an obligation
    stipulated to be 0.013% NSR.

[30]

In other words, Newmont Canada did not transfer to
    Holloway all the assets and liabilities relating to the Holt-McDermott mine. As
    with the later sale to St. Andrew, Newmont Canada retained the risk and the
    obligation to Barrick of the Barrick royalty agreement. As a result, the same
    analysis and same reasoning applied by the trial judge to the St. Andrews
    transaction applies to the previous transfer by Newmont Canada to Holloway. The
    conclusion is the same: Holloway only agreed to indemnify Newmont Canada for
    the stipulated royalty rate of 0.013% NSR.

CONCLUSION

[31]

The contractual interpretation in this case was
    heavily intertwined with the evidence led at trial. As the trial judge stated,
    It is the evidence of the parties that governs the outcome in this case. None
    of the trial judges factual findings are challenged on appeal. Faced with two
    contractual interpretations, the trial judge carefully considered the facts and
    the agreements and concluded that, correctly interpreted, the agreements
    provided that St. Andrew agreed to an indemnity of a royalty obligation stated
    to be 0.013% NSR. This is consistent with the many references in both the
    Newmont Canada-Holloway and Newmont Canada-Holloway-St. Andrew agreements to
    the amount of the Barrick royalty obligation being 0.013% NSR. In my view, in
    reaching her conclusion, the trial judge did not commit any error in the
    application of the relevant legal principles. Her conclusion was not only
    reasonable, in my view it was correct.

[32]

In the result, I would dismiss the appeal. If
    the parties are unable to agree on costs, I would ask the respondents to submit
    brief written submissions within 20 days hereof and the appellant to submit a
    brief response within 10 days thereafter.

Paul
    Rouleau J.A.

I
    agree E.A. Cronk J.A.

I
    agree J. MacFarland J.A.

RELEASED: May 13, 2011


CITATION: Toth Equity
          Limited v. Ottawa (City), 2011 ONCA 372

DATE: 20110512

DOCKET: C52855

COURT OF APPEAL FOR ONTARIO

Sharpe, Gillese and Karakatsanis JJ.A.

BETWEEN

Toth Equity Limited

Applicant/Respondent

and

The City of Ottawa

Respondent/Appellant

Stuart Huxley, for the appellant

Peter A. Milligan and Adam J. Stephens, for the respondent

Heard: March 24, 2011

On appeal from the Order of the Divisional Court (Pierce
          R.S.J., Matlow and Power JJ.) dated June 30, 2010.

Gillese J.A.:

OVERVIEW

[1]

Toth Equity Limited (Toth) owns the Towngate Shopping Centre, a property
    located at 2446-2470 Bank Street, Ottawa.  It claims that the City of Ottawa
    (the City) overcharged it for property taxes on the property in the 2003, 2004
    and 2005 tax years (the Claim).

[2]

By order dated June 30, 2010 (the Order), the Divisional Court issued an
    order in  the nature of
mandamus
, requiring the Ottawa City Council
    (City Council) to hold a meeting pursuant to s. 357(5) of the
Municipal Act,
    2001
, S.O. 2001, c. 25, at which Toth is to be permitted to make
    representations with respect to the Claim.  In addition, it ordered City Council
    to make a decision with respect to the issues that Toth raises at the meeting.

[3]

The City appeals.

[4]

I would allow the appeal.  As I explain below, in my view, the Order
    cannot stand because it (1) conflicts with the legislative scheme established
    by s. 357 of the
Municipal Act, 2001
; and (2) runs contrary to
    established jurisprudence, which requires Toth to exhaust its appeal rights in
    the administrative process before pursuing an application for judicial review.

BACKGROUND IN BRIEF

[5]

The Towngate Shopping Centre is a 100,516 square
    foot shopping centre in Ottawa.  In 2005, Toth complained to the Assessment
    Review Board (the ARB), under s. 40 of the
Assessment Act
, R.S.O. 1990, A.
    31, that the Municipal Property Assessment Corporation (MPAC) assessments for
    the property were too high.

[6]

The s. 40 complaints were disposed of by way of
    a settlement between Toth and MPAC.  As a result of the settlement, the ARB released
    three consent decisions in May of 2005, one for each of the tax years 2003,
    2004 and 2005 (the ARB consent decisions).  The City was not a party to the s. 40
    proceedings, settlement or ARB consent decisions.

[7]

The ARB consent decisions resulted in a
    reduction of the total assessed value of the property.  However, they also led
    to a change in the apportionment of value for the property, with more value being
    placed on the commercial property class and less on the shopping centre class.
    The commercial property class carries a higher tax rate in Ottawa.
    Consequently, there was an increase in the property taxes.

[8]

The ARB consent decisions were sent to the City
    so that it could make the necessary tax adjustments.  By letter dated August
    24, 2005, the City advised Toth of the tax increases for the property for 2003,
    2004 and 2005, resulting from the ARB consent decisions.

[9]

According to Toth, the City made an error in
    2001 in calculating the property taxes for the shopping centre and that error
    has had an impact on the calculation of taxes in the years that followed.  It
    says that in calculating the 2001 taxes, the City was required to calculate the
    notional taxes for 2000, the base year.  In calculating the 2000 notional
    taxes, the City had to take into account the changes in apportionment.  Toth
    says the City failed to recalculate the 2000 notional taxes based on those
    changes.  This error allegedly led to errors in the property taxes charged for
    2003, 2004 and 2005.  Toth says that it was overcharged by an amount in excess
    of $400,000 for those years.

[10]

Toth says that it discovered the alleged errors
    in 2005.

[11]

The City contends that the alleged errors are
    the unintended ramifications flowing from the settlement and the ARB consent
    decisions.

[12]

While there was much correspondence between Toth
    and the City, the two key documents are a letter dated September 26, 2005, from
    Toth to the City, and the Citys response to Toth in a letter dated October 18,
    2005.

[13]

In the September 26, 2005 letter, Toth
[1]
applied to the City for
    the cancellation, reduction or refund in taxes resulting from the ARB consent
    decisions in the 2003, 2004 and 2005 taxation years.  It claimed that it had
    been overcharged by reason of a gross or manifest error in the preparation of
    the assessment role.

[14]

Section 357(f) of the
Municipal Act, 2001
,
    gives a municipality the power to reduce or refund taxes if a person was
    overcharged due to a gross or manifest error that is clerical or factual in
    nature.  Pursuant to s. 357(3), an application must be brought before February
    28 of the year following the year in respect of which the application is made.

[15]

The City responded in a letter dated October 18,
    2005.  It advised Toth that the shift in the apportionment from shopping class
    to commercial class tax flowing from the ARB consent decisions led to the
    increase in taxes.  It said that the adjustments that were made followed the
    procedures outlined in the relevant legislation.  As there had been no error in
    calculations, no adjustments could be made as a result of Toths application.

[16]

City Council did not hold a meeting to consider
    Toths application.

[17]

On October 16, 2006, Toth filed appeals in
    respect of the tax matters relating to the 2003, 2004 and 2005 tax years with the
    ARB, on the basis that City Council did not make a decision (the
    non-decision) by September 30, 2006.  What has transpired in relation to
    these appeals is discussed below in the section entitled The requirement to
    exhaust adequate alternative remedies.

[18]

On July 11, 2007, Toth started these proceedings
    in the Divisional Court.  Its basic position was that in failing to hold a
    meeting to consider its application, the City was in breach of its obligation
    under s. 357(5) of the
Municipal Act
,
2001
, because the application
    had been brought within the statutory timelines.

[19]

Toths application for judicial review was heard
    on February 3, 2010, and resulted in the Order.

[20]

In its reasons for decision, the Divisional
    Court stated that the City erred in law by refusing to provide Toth with a
    hearing before City Council and the opportunity to make representations at that
    hearing in respect of its Claim.  It further stated that Toth was not required
    to exhaust other means of obtaining relief before following the procedure that
    it had chosen (i.e. the application for judicial review).

THE ISSUE

[21]

The issue raised by this appeal can be simply
    stated: did the Divisional Court err in making the Order?

THE RELEVANT PARTS OF SECTION 357 OF THE
MUNICIPAL ACT,
    2001

[22]

Section
357 of the
Municipal Act, 2001
, is
    critical to the resolution of this appeal.  The relevant parts of s. 357 read
    as follows:

Cancellation, reduction, refund of taxes

357.  (1)
Upon application to the treasurer
    of a local municipality made in accordance with this section, the local
    municipality may cancel, reduce or refund all or part of taxes levied on land
    in the year in respect of which the application is made if,

...

(f)
a person was overcharged due to a gross
    or manifest error that is clerical or factual in nature, including the
    transposition of figures, a typographical error or similar error but not an
    error in judgment in assessing the property; or

...

Timing

(3)
An application under this section must
    be filed with the treasurer on or before February 28 of the year following the
    year in respect of which the application is made.

...

Meeting

(5)
On or before September 30 of the year
    following the year in respect of which the application is made, council shall,

(a)
hold a meeting at which the
    applicants may make   representations to council;

(b)
notify the applicants of the
    meeting by mail sent at            least 14 days before the meeting; and

(c)
make its decision.

Notice

(6)
Within 14 days after making its
    decision, council shall notify the applicants of the decision and specify the
    last day for appealing the decision.

Appeal

(7)
Within 35 days after council makes its
    decision, an applicant may appeal the decision of council to the Assessment
    Review Board by filing a notice of appeal with the registrar of the board.

Where no decision

(8)
If council fails to make its decision
    by September 30 of the year following the year in respect of which the
    application is made, an applicant may appeal to the Assessment Review Board by
    October 21 of the year by filing a notice of appeal with the registrar of the
    board and the appeal shall be a new hearing.

Notice

(9)
The Assessment Review Board shall
    notify the appellants and the treasurer of the municipality of the hearing by
    mail sent at least 14 days before the hearing.

Decision

(10)
The Assessment Review Board shall hear
    the appeal and may make any decision that council could have made.

Decision final

(17)
A decision of the Assessment Review
    Board is final.

Notice of decision

(18)
The council and the Assessment Review
    Board shall forward a copy of their decisions under this section to the
    assessment corporation but failure to comply with this requirement does not
    invalidate the proceedings taken under this section.

ANALYSIS

[23]

In my view, the Divisional Court erred in law in two
    ways in making the Order.  First, requiring the City to hold a meeting and
    render a decision in respect of the Claim conflicts with the legislative scheme
    established by s. 357 of the
Municipal Act, 2001
.  Second, the Order runs
    contrary to established jurisprudence which requires a person, absent
    exceptional circumstances, to exhaust his or her appeal rights in the
    administrative process before pursuing an application for judicial review.

The legislative scheme established
    by s. 357 of the Municipal Act, 2001

[24]

Sections 357(5) and (8) of the
Municipal
    Act, 2001
, are central to the following analysis.  They are, therefore, set
    out again now for ease of reference.

Meeting

(5)
On or before September 30 of the year
    following the year in respect of which the application is made, council shall,

(a)
hold a meeting at which the
    applicants may make representations to council;

(b)
notify the applicants of the
    meeting by mail sent at least 14 days before the meeting; and

(c)
make its decision.

Where no decision

(8)
If council fails to make its decision
    by September 30 of the year following the year in respect of which the
    application is made, an applicant may appeal to the Assessment Review Board by
    October 21 of the year by filing a notice of appeal with the registrar of the
    board and the appeal shall be a new hearing.

[25]

I accept that reading s. 357(5) alone could lead
    one to conclude that City Council was required to hold a meeting to consider
    Toths complaints on or before September 30 of the year following the year in
    which the application is made.  After all, s. 357(5) provides that council
    shall hold a meeting at which an applicant may make representations.

[26]

However, that reading of s. 357(5) fails to take
    into consideration s. 357(8) of the
Municipal Act, 2001
, which provides
    that if council fails to make a decision by September 30 of the year following
    the year in which the application is made, the applicant may appeal to the
    ARB.

[27]

That is, s. 357(8) expressly contemplates  and
    provides for  the situation in which a municipal council does not make a
    decision in respect of an application.  It creates a scheme so that if council
    does not render a decision, the applicant has the remedy of appealing to the ARB.

[28]

The legislative scheme, read in its entire
    context, logically leads to the conclusion that council is not obliged to hold
    a meeting in respect of every application, despite the use of the word shall
    in s. 357(5).  As noted, s. 357(8) specifically contemplates that a council could
    fail to make a decision by the specified date.  There could be a variety of
    reasons for failing to make the decision, including that no meeting had been held.

[29]

In my view, it was not the legislatures
    intention to require municipal councils to hold a meeting for every application
    that is filed with them.  This means that a municipality would have no ability
    to screen out applications for any reason, including councils determination
    that the application did not meet the requirement of a gross or manifest error
    that was clerical or factual in nature.

[30]

Where a municipal council is unable or unwilling
    to hold a hearing, whether due to refusal, neglect, mistake, inadvertence or scheduling
    difficulties, the legislature has provided the applicant with an appeal right
    to the ARB.  The appeal places the applicant in the same position as it was
    with the municipal council because the ARB may make any decision that council
    could have made (s. 357(10)).  In so doing, the legislature created a statutory
    scheme specifically designed to provide an adequate remedy when a council
    renders no decision in respect of an application.

[31]

The Order is in the nature of
mandamus
.
Mandamus
lies only where, among other things, an applicant for judicial review shows
    that it is owed a legal duty:  see
Karavos v. Toronto and Gillies
,
    [1948] 3 D.L.R. 294 (Ont. C.A.), at para. 4.  For the reasons given, the City
    did not owe Toth a legal duty to hold a hearing in respect of the Claim.

[32]

Accordingly, the Divisional Court erred in law and
    the Order cannot stand.

The Requirement to Exhaust
    Adequate, Alternative Remedies

[33]

The Divisional Court held that even if Toth had
    the right to appeal City Councils non-decision to the ARB, Toth was not
    required to exhaust that right before pursuing its application for judicial
    review.

[34]

With respect, the Divisional Court erred in principle
    in so concluding.  It is an important principle of administrative law that,
    absent exceptional circumstances, a party must exhaust any available adequate
    alternative remedy within the administrative process before pursuing an
    application for judicial review: see
Harelkin v. University of Regina
,
    [1979] 2 S.C.R. 561.

[35]

The Canadian courts have enforced this general
    principle vigorously.  In the recent decision of
C. B. Powell Ltd. v. Canada
    (Border Services Agency)
, 2010 FCA 61, at paras. 31-32, Stratas J.A. of the
    Federal Court of Appeal, usefully describes the principle and its rationale.

[31]     Administrative law
    judgments and textbooks describe this rule in many ways: the doctrine of
    exhaustion, the doctrine of adequate alternative remedies, the doctrine against
    fragmentation or bifurcation of administrative proceedings, the rule against
    interlocutory judicial reviews and the objection against premature judicial reviews.
    All of these express the same concept: absent exceptional circumstances,
    parties cannot proceed to the court system until the administrative process has
    run its course.  This means that, absent exceptional circumstances, those who
    are dissatisfied with some matter arising in the ongoing administrative process
    must pursue all effective remedies that are available within that process; only
    when the administrative process has finished or when the administrative process
    affords no effective remedy can they proceed to court.  Put another way, absent
    exceptional circumstances, courts should not interfere with ongoing
    administrative processes until after they are completed, or until the available,
    effective remedies are exhausted.

[32]     This prevents fragmentation
    of the administrative process and piecemeal court proceedings, eliminates the
    large costs and delays associated with premature forays to court and avoids the
    waste associated with hearing an interlocutory judicial review when the
    applicant for judicial review may succeed at the end of the administrative
    process anyway Further, only at the end of the administrative process will a
    reviewing court have all of the administrative decision-makers findings; these
    findings may be suffused with expertise, legitimate policy judgments and
    valuable regulatory experience. ..  Finally, this approach is consistent with
    and supports the concept of judicial respect for administrative decision-makers
    who, like judges, have decision-making responsibilities to discharge.  [citations
    omitted]

[36]

B
ecause City Council failed to make a decision
    in relation to Toths application, pursuant to s. 357(8) of the
Municipal
    Act, 2001
, Toth had the right to appeal to the ARB.  For ease of reference,
    I set out s. 357(8) again below:

(8)
If council fails to make its decision
    by September 30 of the year following the year in respect of which the
    application is made, an applicant may appeal to the Assessment Review Board by
    October 21 of the year by filing a notice of appeal with the registrar of the
    board and the appeal shall be a new hearing.

[37]

It will be recalled that Toth, in fact, filed
    notices of appeal with the ARB within the prescribed time frame.

[38]

Neither party contended that there were any
    exceptional circumstances permitting early recourse to the courts.  This is
    appropriate, given that the authorities show that very few circumstances
    qualify as exceptional: see
C.B. Powell
at para. 33.  Consequently, unless
    an appeal to the ARB is an inadequate remedy, Toth was required to exhaust that
    appeal right before proceeding to court by means of a judicial review
    application.

[39]

Accordingly, two questions must be answered.  First,
    is an appeal to the ARB an adequate alternative remedy by which to challenge
    the Citys decision in respect of the tax dispute?  Second, if an appeal to ARB
    is an adequate alternative remedy, did Toth exhaust its appeal rights prior to
    commencing its application for judicial review?

[40]

Is an appeal to the ARB an adequate alternative
    remedy?  In
Canadian Pacific Ltd. v. Matsqui Indian Band
, [1995] 1
    S.C.R. 3, the Supreme Court set out a number of factors that should be
    considered when determining whether a statutory appeal procedure is an adequate
    alternative remedy.  At para. 37, Lamer C.J., writing for a majority of the
    court, states:

[I] conclude that a variety of
    factors should be considered by courts in determining whether they should enter
    into judicial review, or alternatively should require an applicant to proceed
    through a statutory appeal procedure. These factors include: the convenience of
    the alternative remedy, the nature of the error, and the nature of the
    appellate body (i.e., its investigatory, decision-making and remedial
    capacities). I do not believe that the category of factors should be closed, as
    it is for courts in particular circumstances to isolate and balance the factors
    which are relevant.

[41]

Based on a consideration of these factors, in my
    view, there can be no doubt but that an appeal to the ARB is an adequate
    alternative to judicial review.  The ARB is a specialized tribunal with
    expertise and experience in dealing with property tax and assessment matters.
    As the Divisional Court held in
Municipal Property Assessment Corp. v. Minto
    Developments Inc.
(2003), 2 M.P.L.R. (4th) 89, at paras. 31-34, decisions
    of the ARB are to be afforded deference because of the powers and functions
    vested in it and the high degree of expertise needed to decide the complex
    disputes over property classification that it is called on to adjudicate.  In
    the present case, the alleged errors relate to the assessed value of property
    and the calculation of property taxes, matters squarely within the
    jurisdiction, and specialized expertise of, the ARB.  Moreover, the ARB has
    full remedial powers, as it can make any order that the City Council could have
    made (s. 357(10)).

[42]

Thus, the question becomes, did Toth exhaust its
    appeal right to the ARB?  Toth says that it did.  In its factum, Toth states that
    it attempted to appeal to the ARB but was informed that the ARB lacked jurisdiction
    to hear the appeal.  In making this submission, Toth relies on para. 16 of the
    reply affidavit evidence of Gordon Jones, a Senior Manager in Property Tax Services
    for Deloitte & Touche, in which Mr. Jones says my interpretation of the
    guidance we have received from the ARB is that they will not hear appeals on
    the matter until Council has issued a decision on the application.  There is
    no correspondence (or anything else) from the ARB provided as support for this
    statement.

[43]

The City disputes Toths claim that it exhausted
    its appeal with the ARB.  It acknowledges that Toth commenced appeals in
    respect of the alleged errors.  However, the City says that despite requests to
    Toth for clarification, it has never been given any evidence that Toth attempted
    to pursue the appeals or otherwise revive them.  The City checked the e-status
    of the ARBs appeal files, which indicate that the files have been closed.
    The record does not contain any explanation for why the files have been
    closed.  Counsel for the City stated that based on Toths submissions at the
    Divisional Court, the files were closed for administrative reasons, which
    suggests that Toth did not prosecute its appeals.  He also noted that while
    there is a statement in Mr. Jones affidavit to the effect that he understood
    that the ARB would not hear the appeals, there is nothing in the record from
    the ARB to this effect and it runs contrary to the ARBs established
    jurisprudence.

[44]

The burden was on Toth to demonstrate that it
    exhausted its appeal right prior to bringing an application for judicial review.
    Section 357(10) of the
Municipal Act, 2001
, makes it mandatory that the
    ARB hear appeals brought pursuant to s. 357(8).  Various decisions rendered by
    the ARB make it clear that it hears cases in which a municipal council did not
    hold a meeting or make a decision:  see, for example,
Mattamy (Castlemore)
    Ltd. v. Brampton (City)
, [2010] O.A.R.B.D. No. 602.  And, s. 357(18)
    requires the ARB to forward a copy of the decisions they make under s. 357 to
    the assessment corporation.  Accordingly, one would have thought that it would
    have been a simple matter for Toth to have filed the ARBs decisions in respect
    of its appeals, had such decisions been made.  The record contains no such decisions.
    Instead, the evidence is that the ARB has closed its files on these appeals.
    The fact that a file has been closed does not mean that a decision was
    rendered.

[45]

At its highest, the evidence is that Toth, in
    reliance on Mr. Jones interpretation of guidance he says that he received from
    the ARB, has failed to pursue its appeals.  In the circumstances, I am not
    prepared to find that Toth has exhausted its right of appeal to the ARB.

[46]

Consequently, in my view, the City is entitled
    to succeed on this appeal on this ground alone.

DELAY AND OTHER MATTERS

[47]

Toth commenced its application for judicial
    review on July 11, 2007, some 21 months after the Citys October 18, 2005
    letter.  The City says that post application, Toth delayed for another
    approximately 30 months.  The City submits that the Divisional Court further
    erred by failing to address the issue of Toths delay in pursuing its
    application for judicial review when deciding whether to grant an order in the
    nature of mandamus.  In light of the conclusions reached above, I find it
    unnecessary to address this issue.

[48]

In addition, the City points to a number of
    alleged factual errors in the reasons of the Divisional Court.  Again, in light
    of the conclusions reached in relation to the first two grounds of appeal, I
    find it unnecessary to deal with the alleged factual errors.

DISPOSITION

[49]

Accordingly, I would allow the appeal and set
    aside the Order.  I would award costs to the City, for the proceedings below
    and the appeal, fixed at $18,720.00, inclusive of disbursements and applicable
    taxes.

RELEASED:

MAY 12 2011                                           E.E.
    Gillese J.A.

EEG                                                            I
    agree Robert Sharpe J.A.

I
    agree Karakatsanis J.A.

[1]
For convenience, I refer to Toth throughout.  However, many actions were taken
    by Deloitte & Touche, the firm that Toth retained to act as its agent in
    respect of assessment matters.