COURT OF APPEAL FOR ONTARIO

CITATION: General
    Motors of Canada Limited v. Johnson, 2013 ONCA 502

DATE: 20130731

DOCKET: C55707

Doherty, Cronk and Watt JJ.A.

BETWEEN

General Motors of Canada Limited

Appellant

and

Yohann Johnson

Respondent

J. Brett Ledger, Neil Paris and Jay A. Nathwani, for the
    appellant

John R. Carruthers, for the respondent

Heard: May 3, 2013

On appeal from the judgment of Justice Alfred J. Stong of
    the Superior Court of Justice, dated June 8, 2012, with reasons reported at
    2012 ONSC 3339.

Cronk J.A.:

I.        Introduction

[1]

From September 1997 until February 2005, the respondent, Yohann Johnson,
    worked for the appellant, General Motors of Canada Limited (GM), as a
    production supervisor in the body shop at GMs Oshawa assembly plant.  Johnson
    is a black man.

[2]

In late August 2005, Johnson took a medical leave of absence from work,
    claiming disability due to discriminatory treatment in the workplace based on
    racism.  He never returned to work at GM.

[3]

In the litigation that followed, the trial judge found that Johnson was
    the victim of racism and that his workplace environment was poisoned due to
    racism, eventually resulting in his constructive dismissal by GM.

[4]

An allegation of discriminatory treatment in the workplace due to racism
    is a serious claim that implicates the reputational and employment interests of
    the claimant, as well as those of the alleged perpetrators.  It can also affect
    the dignity, self-worth and health of both the alleged victim and those accused
    of racist conduct.  An allegation of this type can reverberate for many years
    after the incident or incidents in question, with potentially long-term
    consequences for all concerned.

[5]

No less serious are judicial findings of racially-motivated conduct in
    the workplace and a poisoned work environment due to racism.  Judicial consideration
    of an allegation of constructive dismissal based on alleged racism in the
    workplace requires careful scrutiny of and balanced attention to all the
    evidence relating to the allegation in order to determine whether it is more
    likely than not that the alleged racism occurred.

[6]

In this appeal, this court is required to consider whether the evidence
    adduced at trial sustains the trial judges findings of racism and a poisoned
    work environment due to racism, leading to Johnsons constructive dismissal.

[7]

For the reasons that follow, I conclude that these key findings by the
    trial judge are unreasonable and unsupported by the evidence.  As these
    findings are the foundation for the trial judges holding of constructive
    dismissal by GM, the trial judgment cannot stand.  In the circumstances of this
    case, the appropriate remedy is to allow the appeal and dismiss Johnsons action
    against GM.

II.       Facts

[8]

GM challenges the trial judges central findings and inferences of fact,
    and their legal consequences.  Accordingly, a close review of the evidence is
    required.

(1)

Alleged 1997 Incident

[9]

During his almost eight years of employment with GM, Johnson was
    generally happy at his job.  He had never encountered any instances of racism
    in the workplace.

[10]

In
    early 2005, Johnson became responsible for training group leaders in the body
    shop of the GM assembly plant on a new system of policies and guidelines
    relating to GMs Global Manufacturing System (the GMS).  The assembly plant
    is a unionized workplace.  The GMS training was mandatory for body shop group
    leaders.  It is uncontroverted that the GMS training was unpopular with union
    members, many of whom refused or failed to attend their scheduled GMS training
    sessions.

[11]

On
    June 28, 2005, Johnson was scheduled to train Alex Markov, a group leader in
    the body shop.  However, Markov failed, without warning, to attend his training
    session.

[12]

Johnson
    promptly informed Markovs supervisor that Markov had skipped his training
    session.  The supervisor spoke to Markov and then met with Johnson.  He told
    Johnson that Markov refused to take the GMS training with him because of an
    incident several years earlier when, according to Markov, Johnson had laughed
    at an insensitive remark made by another GM employee about the death of
    Markovs brother.

[13]

Later
    the same day, Jim Tucker, GMs shift leader in the body shop and Johnsons
    supervisor, met with Markov to obtain an explanation.  According to Tucker,
    Markov said that, in about 1997, he asked for time off work to attend court
    proceedings involving individuals charged with his brothers murder.  When the
    court appearance was cancelled, Markov told his superior, Ray Michaud  a white
    man  that he no longer required time off.  Markov claimed that in response, Michaud
    stated, Ill rub you out.  He also said that Johnson was present during this exchange
    with Michaud, and that Johnson laughed at Michauds remark (the 1997 Incident).

[14]

Markov
    considered Michauds comment to be a derogatory, disparaging, and insensitive
    reference to his brothers murder, the negative impact of which was exacerbated
    by Johnsons allegedly inappropriate reaction to the comment.

[15]

At
    trial, it emerged that at the time of the 1997 Incident, the scheduling of work
    hours was logged on paper and recorded in writing by pencil.  The trial judge
    held that Michauds comment to Markov, if it was made at all, could have been
    an innocent response to removing Markovs name from the time sheet requesting
    time off.

[16]

Tucker
    requested that Markov train with Johnson on the GMS.  Markov refused, but did
    agree to train with another GM employee, Azar Choudry.  Choudry is also a man
    of colour.

[17]

Tucker
    informed Johnson of Markovs explanation for his absence from his GMS
    training.  Johnson later claimed that, during his meeting with him, Tucker
    attempted to discourage or dissuade Johnson from pursuing Markovs absence any
    further.  Tucker denied having done so.  The trial judge accepted Johnsons
    evidence on this point.

(2)

The Hayes and Hicks Statements

[18]

The
    day after Markov skipped his GMS training, Johnson was scheduled to train
    another group leader, Ted Hayes.  When Hayes arrived for his training session,
    he told Johnson that he had learned that if he did not want to train on the
    GMS, all he had to do was claim that he was prejudiced like the last guy whose
    brother was killed by a black man.  Johnson did not ask Hayes, then or later,
    about the source of this information.  Nor did he ask Hayes for an explanation.
    Johnson later testified that he was floored by Hayess statement.

[19]

Johnson
    decided to make inquiries of another GM group leader about Hayess statement.
    He spoke with Hugh Hicks, inquiring if he knew anything about the death of
    Markovs brother and asking him to find out as much as he could.  Hicks later told
    Johnson that he had heard from others in the body shop that Markovs brother
    had been killed by a black man.  Hicks did not tell Johnson the source of this
    information, nor did Johnson take any steps to confirm it.

(3)

Johnsons Racism Complaint

[20]

Based
    solely on Hayess statement and the information provided by Hicks, Johnson
    concluded that Markov had refused to undergo GMS training with him because
    Markov was prejudiced against black men.  Early on the morning of June 30,
    2005, Johnson met with the plant area manager, Jeff Bantam, and complained, for
    the first time, that Markovs refusal to train with him was based on racism.

[21]

In
    the weeks that followed, Johnson repeated his racism allegation to various of
    GMs management personnel at the Oshawa facility, at various times.  GM took
    several actions in response, including three separate investigations by GM
    personnel into Johnsons complaint.  On each occasion, the GM investigators
    concluded that there was no evidence of racially-motivated conduct by Markov.

(4)

GMs First Investigation

[22]

Immediately
    after his June 30th meeting with Johnson, Bantam summoned Tucker to his office,
    informed him of Johnsons racism complaint, and directed him to deal with the
    situation.  This marked the beginning of GMs first investigation into Johnsons
    complaint.

[23]

Tucker
    then met with Hayes and told him that his comment to Johnson was inappropriate
    and that Hayes owed Johnson an apology.  Hayes apologized to Johnson, who accepted
    the apology.

[24]

Tucker,
    together with a GM labour relations and human rights representative, Karine Laverdière,
    also met separately with Johnson.  Laverdière took notes of the meeting.  Her
    notes indicate that Johnsons concerns were discussed, including Markovs
    explanation for his absence from the training session.  Tucker also interviewed
    Markov, in the presence of Markovs union representative, and two other
    individuals who had worked in the body shop in 1997.  He did not interview Ray
    Michaud.

[25]

By
    the time of the meeting with Markov, the plant manager had made a direct order
    that Markov take his GMS training with Johnson, failing which he was to be
    walk[ed] right out of the plant.  However, at the meeting, Markovs union
    representative proposed that the matter be resolved by Markov resigning as a group
    leader in the body shop, thereby relieving him of the GMS training requirement,
    and assuming a different role as a utility replacement representative within
    the body shop.  At trial, Tucker testified that utility replacement personnel
    fill in for other plant employees, as need arises.

[26]

Johnson
    was informed of this proposed resolution of his complaint and accepted it.  The
    parties are divided on whether his acceptance was unconditional.  Johnson later
    maintained that he agreed to the proposed resolution on condition that a note was
    entered in Markovs personnel file, indicating that Markov was stepping down as
    a group leader in order to avoid GMS training and to preserve his racist
    views.  Tucker and Laverdière disputed this claim, testifying that no
    condition of this kind had been raised with them by Johnson, or agreed upon.  The
    trial judge accepted Tuckers and Laverdières evidence on this point.

[27]

At
    trial, Johnson acknowledged that, as far as he was concerned, the
    Markov-related matter was over and done with by June 30, 2005 as a result of
    the agreed-upon resolution, described above.

(5)

GMs Second investigation

[28]

Sometime
    in the third week of July 2005, after the GM assembly plant re-opened following
    its annual two-week summer shutdown and while Tucker was on holidays, Johnson
    observed Markov in the body shop, performing group leader functions.  Johnson
    concluded that Markovs group leader position had been restored notwithstanding
    the complaint resolution reached several weeks earlier.  He reported this to Bantam
    who, based on Johnsons information, promptly called a meeting to determine who
    had returned Markov to group leader duties.

[29]

Within
    hours, a disciplinary hearing into Markovs failure to comply with the explicit
    direction that he undertake GMS training with Johnson was conducted pursuant to
    the governing collective agreement.  In the result, Markov was suspended from
    work for five days.  At trial, Johnson agreed that, as a result of this
    disciplinary action, the matter had again been fully resolved.  He testified
    that, at that point, there were no outstanding racism-related issues insofar as
    he was concerned.

[30]

However,
    Markov exercised his right under the collective agreement to appeal his
    suspension.  His appeal was allowed, his suspension was rescinded, and GM was
    criticized for permitting Markov to perform group leader duties in apparent
    breach of the agreed resolution of Johnsons original complaint.  At trial,
    Tucker testified that, in fact, Markov had simply been filling in as a
    replacement for an absent group leader in accordance with his duties as a
    utility replacement representative.  Tucker claimed that this work did not
    violate the agreed complaint resolution.

[31]

Johnson,
    upset by the appeal disposition, met with Tony Costa, GMs plant personnel
    director, and asked him to re-investigate his original complaint.  Costa did
    so.  He interviewed several individuals, including Johnson, Bantam and Tucker.
    Costa, like Tucker before him, concluded that there was no evidence of racism
    by Markov.  To the contrary, Costa noted that, based on his investigation,
    Markovs version of the 1997 Incident was plausible.

(6)

GMs Third Investigation

[32]

Johnson
    remained unsatisfied.  On August 29, 2005, he took his concerns to the
    assistant plant manager, Gerry Meeks.  After speaking with both Johnson and
    Costa, Meeks offered on his own initiative to have Johnsons racism complaint
    investigated again.

[33]

Laverdière,
    the GM labour relations and human rights representative who had participated in
    some of Tuckers earlier interviews regarding Johnsons complaint, including
    the interview with Markov, conducted this third investigation.  She interviewed
    Markov again, on two separate occasions.  She asked him whether he was prepared
    to train on the GMS with Michaud, who allegedly made the rub you out comment
    in 1997.  Markov replied that he would feel worse about taking training with
    Michaud than with Johnson.  For the first time, Markov also asserted that some
    hours after the 1997 Incident, Michaud and Johnson went to see him, repeated
    the same rub you out comment originally uttered by Michaud, and again
    laughed.

[34]

Laverdière
    interviewed various other individuals in addition to Markov, including Michaud
    and Tucker.  Michaud denied the 1997 Incident.  Laverdière took detailed notes
    and documented the results of her investigation in a written report.  She, too,
    concluded that there was no evidence that Markov was racist, reporting that
    Markov perceived the 1997 Incident as a threat, that he was still upset by it,
    and that there were reasonable grounds to believe Markovs perception of
    events, regardless of whether the 1997 Incident had in fact occurred.  At
    trial, she testified that, when interviewed, Markov appeared very sincere and
    very upset about the 1997 Incident.

[35]

The
    trial judge found that GM did not take Johnsons complaint sufficiently
    seriously and that, notwithstanding three investigations, it failed to conduct
    a reasonably comprehensive investigation into Johnsons complaint.  He held
    that although GM did not act maliciously, it ignored the agreed complaint
    resolution, reassigned Markov to the role of group leader, and failed to
    enforce the voluntary demotion by Markov, instead carry[ing] on as if
    Markovs resignation did not exist.  He also found that GM was instrumental
    in havingMarkovs 5 day period of suspension over-turned in an effort to
    influence contractual negotiations with the union.  He accepted Johnsons
    assertion that, in so doing, GM traded away Johnsons human rights as a
    bargaining chip.

(7)

Johnsons Leave from Work

[36]

Johnson
    disagreed with and was distressed by the results of the first two investigations
    into his racism complaint.  When a co-worker in the body shop allegedly told
    him that Markov had threatened to harm him, he also began to fear Markov.  GM
    assured him that he would have the protection of surveillance cameras in the
    parking lot when he arrived at and left the plant.

[37]

Johnson
    came to view the body shop at the assembly plant as a poisoned work
    environment.  At the end of August 2005, after he had spoken with Meeks and
    before Laverdière commenced her investigation, he took an approved medical
    leave from work under the care of a psychiatrist, asserting disability arising
    from discriminatory treatment due to racism in his workplace.

[38]

Johnson
    was absent from work for the next two years.  It appears that throughout much of
    this period, he failed to furnish GM with current and on-going medical
    information substantiating his claim of continuing disability.  He led no
    medical evidence at trial in support of his disability and damages claims.

[39]

About
    two years later, in mid-July 2007, Johnson met with GMs plant physician, who
    concluded that Johnson was fit to return to work.  GM wrote to Johnsons legal
    counsel, asking that Johnson contact GMs human resources representative, Jim
    Goard, to discuss his return to work.  Johnson complied.  He told Goard that he
    was disabled, that he was unable to work in any plant environment where he
    might come into contact with Markov or Michaud, and that he would return to
    work only at General Motors Acceptance Corporation (GMAC), in GMs training
    centre, or in GMs head office.

[40]

Goard
    told Johnson that GM no longer owned GMAC and that no training positions were
    then available.  He offered Johnson a supervisory role, similar to Johnsons previous
    position, in two manufacturing-related jobs, in two different GM facilities (the
    Truck Plant or West Paint building), both of which were located in different
    buildings about one kilometre away from the assembly plant body shop.  He also
    offered to adjust Johnsons shifts and, possibly, his supervision.  Johnson
    declined these offers, maintaining that he was disabled from working in any GM
    plant.  He provided no current medical information to support this claim.

[41]

By
    the end of September 2007, Johnson had still not returned to work.  On
    September 27, Goard wrote to Johnson confirming that he had been informed of
    the available employment opportunities outside the assembly plant body shop and
    that GM had not been provided with medical support for Johnsons claim of
    continuing disability.  Goard ended his letter by stating that, under the
    circumstances, he had concluded that Johnson was resigning from any further employment
    relationship with GM.

[42]

The
    trial judge found that Goards letter was just short of an attempt to bully
    Johnson into accepting an employment position which could only resurrect the
    ill will that caused his grief in the first place.  He further held that GMs
    offer and apparent insistence that Johnson return to virtually the same work
    environment in which his problems were suffered could not be construed as a
    reasonable resolution or as the provision of a healthy, discrimination-free
    work environment.  In the trial judges view, GMs decision to treat Johnsons
    refusal of the offered employment positions as a resignation amounted to
    constructive dismissal.

(8)

The Litigation

[43]

On
    January 31, 2008, Johnson sued GM for damages for breach of his employment
    contract, special damages and damages for loss of employmentrelated benefits,
    punitive damages and
Wallace
damages, totalling approximately
    $530,000.

[44]

In
    his pleading, Johnson alleged that prior to his medical leave at the end of
    August 2005, he had experienced 10 weeks of belittlement by GM as a result of
    racist behaviour by GM employees, which left him pained, humiliated,
    diminished, and bewildered.  Johnson pleaded that, as a result of this
    conduct, he became profoundly distressed, began to experience a profound sense
    of worthlessness and, by August 29, 2005, had been rendered disabled.  He also
    pleaded that he was later diagnosed as suffering from a phobic response to a
    racist workplace.

III.      Trial Judges Decision

[45]

The
    trial judge ruled that GM was liable to Johnson for constructive dismissal.  He
    awarded Johnson damages in the amount of $159,999.92, consisting of
    approximately $95,000 for wrongful dismissal damages, special damages in the
    sum of $40,000 and
Wallace
damages in the further amount of $40,000,
    less $15,000 due to Johnsons failure to mitigate his damages, plus costs and
    pre- and postjudgment interest.

[46]

The
    trial judge made the following significant findings: (1) Markovs excuse for
    not attending his GMS training session with Johnson was solely racially-based
    and his version of the 1997 Incident was a cover up of his discriminatory
    behaviour; (2) the conduct of GM and some of its employees created a poisoned
    work environment; (3) GM failed to conduct a serious or comprehensive
    investigation into Johnsons racism complaint; and (4) Johnson was
    constructively dismissed from his employment with GM.

[47]

The
    trial judge expressed his conclusions on Johnsons claims in this fashion:

[65]    Johnson has met the objective standard of proving on a
    balance of probabilities that there existed conduct sufficiently severe and
    persistent to create a poisoned workplace, and that it started at the hand of
    Alex Markov who was racially biased against Yohann Johnson because he is a
    black man.  Because of his racial bias, Markov refused to be trained by Mr.
    Johnson and GM failed to provide Mr. Johnson the support needed to eradicate
    the existence of the discrimination or to improve working conditions such as
    would provide for him a healthy, discrimination-free work environment.

[66]    GM breached the implied term of Mr. Johnsons
    employment that he would not be subjected to discrimination because of the
    colour of his skin.  As a victim of racism in the workplace, Mr. Johnson was
    adversely affected not only by the initial expression of racist behaviour but
    also by the failure of GM to follow up and live by the agreements and
    resolutions entered into.

[68]    I am satisfied that Yohann Johnson has satisfied the
    burden of proof placed on him of proving that he was constructively dismissed
    from his employment with GM; that he suffered a foreseeable financial loss as a
    result of racism and/or the follow-up events in the workplace; and that he
    suffered a foreseeable loss to his mental health and dignity as a result of
    racism and/or the follow-up events in the workplace.

[48]

On
    appeal, GM argues that the trial judges findings of racism and a poisoned work
    environment due to racism are unreasonable and unsupported by the evidence and
    that the trial judges resulting finding of constructive dismissal therefore cannot
    stand.  In addition, and essentially in the alternative, it challenges the
    trial judges awards of special and
Wallace
damages.

IV.     Issues

[49]

I
    would frame the issues on appeal as follows:

(1)

Is the
    trial judges finding of racism tainted by palpable and overriding error or
    otherwise clearly wrong, unreasonable, or unsupported by the evidence?

(2)   Are the
    trial judges findings of a poisoned work environment due to racism and
    resulting constructive dismissal also tainted by palpable and overriding error
    or otherwise clearly wrong, unreasonable, or unsupported by the evidence?

(3)   Did the
    trial judge err in law by awarding special and
Wallace
damages in the
    circumstances?

V.      Analysis

(1)

Standards of Review

[50]

It
    is well established that a trial judges findings and inferences of fact
    attract great deference from a reviewing court.  They cannot be disturbed on
    appeal unless they are infected by palpable and overriding error or are
    otherwise clearly wrong, unreasonable, or unsupported by the evidence:
Housen
    v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 1-3 and 10-25;
H.L.
    v. Canada (Attorney General)
, 2005 SCC 25, [2005] 1 S.C.R. 401, at paras.
    4, 52-55 and 64-65;
F.H. v. McDougall
, 2008 SCC 53, [2008] 3 S.C.R.
    41, at paras. 55 and 73.

[51]

That
    said, while the principle of deference applies, a trial judges factual
    findings and inferences are not immune from appellate scrutiny.  In
H.L.
,
    at paras. 55-56, the Supreme Court, citing
Housen
, explained that a
    trial judges findings or inferences of fact may be set aside on appeal if they
    are clearly wrong.  With respect to a trial judges findings of fact, the
    palpable and overriding test is met where the findings can be properly
    characterized as unreasonable or unsupported by the evidence and they are
    likely to have affected the result at trial:
H.L.
at para. 56.  With
    respect to a trial judges inferences of fact, Fish J., writing for a majority
    of the Supreme Court in
H.L.
, stated, at paras. 74-75:

Not infrequently,
different
inferences may reasonably
    be drawn from facts found by the trial judge to have been directly proven.
    Appellate scrutiny determines whether inferences drawn by the judge are
    reasonably supported by the evidence.  If they are, the reviewing court cannot
reweigh the evidence
by substituting, for the reasonable inference
    preferred by the trial judge, an equally  or even more  persuasive inference
    of its own.  This fundamental rule is, once again, entirely consistent with
    both the majority and the minority reasons in
Housen
.

In short, appellate courts not only may  but must  set aside
    all palpable and overriding errors of fact shown to have been made at trial.
    This applies no less to inferences than to findings of primary facts, or facts
    proved by direct evidence.  [Emphasis in original.]

[52]

The
    Supreme Courts jurisprudence is equally unequivocal concerning the governing
    standard of review on questions of law.  There is no room for error by a trial
    judge on a pure question of law  the applicable standard is that of
    correctness.  Thus, on matters of law, an appellate court enjoys a broad scope
    of review and is free to replace the opinion of the trial judge with its own:
Housen
at paras. 8-9.

(2)     Trial Judges Finding of Racism

[53]

The
    trial judge found, at para. 16:

I am satisfied that Markovs excuse for not attending the
    training session by Johnson was solely racially based and his story about his
    interpretation of the alleged [1997 Incident] was simp[ly] a cover up of his
    discriminatory behaviour which was inexcusable.  I am satisfied that Markov
    refused to take training from Johnson because Johnson is a black man.

[54]

The
    trial judges finding of racially-motivated conduct by Markov lies at the core
    of his decision.  Without the existence of underlying racism and the
    discriminatory treatment that the trial judge held flowed from it, there is no
    basis in law for the trial judges additional finding of a poisoned work
    environment, leading to constructive dismissal.  There is no suggestion that,
    apart from the issues of racism and a racism-infected workplace, Johnson was
    otherwise constructively dismissed.

[55]

I
    am satisfied that GM has met the high hurdle for appellate reversal of the
    trial judges impugned finding of racism.  I respectfully conclude that, on
    this evidentiary record, this foundational finding is unreasonable and
    unsupported by the evidence.  I say this for the following reasons.

[56]

At
    trial, there was no direct evidence of racism towards Johnson by anyone at the
    GM assembly plant, including Markov.  Moreover, the trial judges finding of
    racism did not turn on an evaluation of Markovs credibility, to which
    heightened deference would be owed, because Markov died before trial.  Further,
    Johnson never spoke to Markov about his explanation for missing his GMS
    training session.  As a result, the information gathered by Tucker and Laverdière
    in their investigations of Johnsons racism complaint was the only evidence at
    trial regarding Markovs motivation for skipping the GMS training with Johnson.

[57]

Both
    Tucker and Laverdière testified that they had personally sought an explanation
    for Markovs failure to attend his training session.  Both investigators independently
    viewed his explanation as very sincere, assessed that his account of the 1997
    Incident reflected his genuine and strongly-held beliefs, and concluded that
    there was no evidence of racism.  Their evidence concerning Markovs
    explanation was uncontradicted.

[58]

As
    GM properly acknowledges, the trial judge was not obliged to accept the GM
    investigators conclusions regarding Markovs motivation for skipping his GMS
    training.  The trial judge was nevertheless obliged to assess the available
    evidence concerning Markovs avowed excuse for his absence from his GMS
    training session.  This evidence included Markovs consistent denials that his
    failure to attend the training session was racially motivated; instead, Markov
    offered an entirely different explanation for his absence, namely, his personal
    dislike of Johnson as a result of the 1997 Incident.

[59]

The
    trial judges sole basis for concluding that Markov lied about his reason for
    refusing to train with Johnson was what the trial judge perceived as a
    significant discrepancy between what Markov first told Tucker about the 1997 Incident
    and what he later relayed to Laverdière when she conducted GMs final
    investigation of Johnsons complaint.  As I have said, during his interview
    with Laverdière, Markov alleged for the first time that Michaud and Johnson had
    approached him some hours after the 1997 Incident, repeated Michauds initial comment
    about rubbing [Markov] out, and again laughed.

[60]

The
    trial judge regarded the timing of this disclosure as highly suspect.  Based on
    Markovs late disclosure of this alleged second encounter, and without the opportunity
    to observe Markov directly or assess his credibility first-hand, the trial
    judge concluded that Markov had fabricated his account of the second encounter
    with the intent to bolster his claim and to mislead Ms. Laverdière in her
    efforts to ascertain the existence of racial discrimination by Markov.

[61]

I
    accept that the apparent inconsistency between what Markov told Tucker and what
    he said to Laverdière about the circumstances surrounding the 1997 Incident
    provided some basis for the trial judges rejection of Markovs reported reason
    for skipping his GMS training with Johnson.  That is quite different, however,
    from finding that there was affirmative evidence of a racially-based animus by
    Markov towards Johnson.

[62]

Even
    if Markov had fabricated his account of a second encounter with Michaud and
    Johnson, the trial judge drew an unreasonable inference when he concluded on
    that basis alone that Markov had lied throughout the GM investigations about
    his reason for skipping the GMS training to hide his racist conduct and beliefs.
    The trial judges reasons suggest that he ignored the following considerations,
    which bore directly on Markovs explanation for skipping his GMS training:

·

the GMS training session was mandatory for group leaders at the
    assembly plant, Markov had been told to attend and he did not do so. When he
    skipped his training session, he was confronted by his superiors, who demanded
    an explanation. In these circumstances, a false explanation that had nothing to
    do with racism was eminently possible;

·

Markov told Tucker that he was willing to take the GMS training
    with another person of colour  Azar Choudry  who also worked at the GM Oshawa
    facility;

·

Markov said that he would find it more difficult to train with
    Michaud than with Johnson because of Markovs perception of Michauds conduct
    during the 1997 Incident.  Michaud, as I have mentioned, is a white man;

·

Johnson acknowledged at trial that Markov never said anything
    racist to him or in his presence; and

·

when pressed why he believed Markov was racist, Johnson could
    point only to Hayess statement, described above, and Hickss subsequent
    hearsay information that Markovs brother was killed by a black man.

[63]

I
    note, in particular, that Hayess statement to Johnson  that he had learned
    that he could avoid GMS training by claiming that he was prejudiced like the
    last guy whose brother was killed by a black man  was the only evidence of
    any racially-related comment by a GM employee to Johnson.  However, this
    statement had no evidentiary value at all concerning Markovs alleged state of
    mind regarding Johnson.

[64]

I
    therefore conclude, on this evidentiary record, that it was unreasonable for
    the trial judge to hold that Markovs absence from his GMS training was solely
    racially based.  With respect, there was simply no evidence to support this
    finding.  Given the centrality of this flawed finding to the trial judges
    ruling on liability, this error is sufficient to decide the appeal.

[65]

However,
    there is more.  I reach a similar conclusion regarding the trial judges
    findings that the body shop at the GM assembly plant was a poisoned work
    environment due to racism, consisting of an underlying but persistent aura of
    harassment, which eventually led to Johnsons constructive dismissal.  I turn
    now to these critical findings.

(3)     Trial Judges Findings of a
    Poisoned

Work Environment and
    Constructive Dismissal

[66]

Workplaces
    become poisoned for the purpose of constructive dismissal only where serious
    wrongful behaviour is demonstrated.  The plaintiff bears the onus of establishing
    a claim of a poisoned workplace.  As the trial judge recognized, the test is an
    objective one.  A plaintiffs subjective feelings or even genuinely-held
    beliefs are insufficient to discharge this onus.  There must be evidence that,
    to the objective reasonable bystander, would support the conclusion that a
    poisoned workplace environment had been created.  See for example,
Ata-Ayi
    v. Pepsi Bottling Group (Canada) Co.
(2006), 54 C.C.E.L. (3d) 148 (Ont.
    S.C.), at paras. 23 and 40;
Bobb v. Alberta (Human Rights and Citizenship
    Commission)
, 2004 ABQB 733, 370 A.R. 389, at para. 85;
Houtz v. 772910
    Ontario Inc. (c.o.b. McFees Tavern)
, [2002] O.J. No. 475 (S.C.), at para.
    45;
Canada (Canadian Human Rights Commission) v. Canada (Canadian Armed
    Forces) (re Franke)
, [1999] 3 F.C. 653 (T.D.), at paras. 43-46.

[67]

Moreover,
    except for particularly egregious, stand-alone incidents, a poisoned workplace
    is not created, as a matter of law, unless serious wrongful behaviour
    sufficient to create a hostile or intolerable work environment is persistent or
    repeated:
Bobb
at paras. 85-87;
Canada (Canadian Armed Forces) (re
    Franke)
at paras. 43-46.

[68]

The
    test for establishing constructive dismissal is no less stringent.  In
Farber
    v. Royal Trust Co.
, [1997] 1 S.C.R. 846, Gonthier J. explained, at para.
    26, that an objective test governs; the issue is whether a reasonable person
    in the same situation as the employee would have felt that the essential terms
    of the employment contract were being substantially changed.  Justice Gonthier
    elaborated, at para. 33:

In cases of constructive dismissal, the courts in the common
    law provinces have applied the general principle that where one party to a
    contract demonstrates an intention no longer to be bound by it, that party is
    committing a fundamental breach of the contract that results in its
    termination.

See also
Shah v. Xerox Canada Ltd.
(2000),
    131 O.A.C. 44 (C.A.), at paras. 6 and 8.

[69]

The
    trial judge recognized, correctly, that an objective standard applied to
    determine Johnsons claim of constructive dismissal due to a poisoned workplace
    arising from racism.  He went on to hold, at para. 63:

When one objectively considers the events which comprise the
    progression of the status of Johnsons complaint through the system that
    existed in GM for handling such complaints,
there can be no doubt that a
    reasonable person would conclude that circumstances were such as would justify
    Mr. Johnson to consider he had been constructively dismissed from his
    employment
.  [Emphasis added.]

[70]

With
    respect, I disagree.  First, even if Markovs absence from his GMS training
    session were racially-motivated  a conclusion that I regard as unreasonable
    and unsupported by the evidence  this alone would not support a finding that
    the assembly plant body shop was poisoned by racism, warranting a finding of
    constructive dismissal.  As a matter of law, the offending conduct must be
    persistent and repeated unless the incident in question is sufficient, standing
    alone, to taint the entire workplace.  That is not this case.  The trial judge
    made no finding that Markovs refusal to train with Johnson on the GMS was
    sufficient to establish a poisoned workplace due to racism.

[71]

Nor,
    in my view, was such a finding available here.  Johnsons racism complaint
    arose from a single employees failure to attend a single training session.  Such
    conduct falls short of the type of egregious behaviour manifested in those
    cases involving poisoned work environments.  Johnson did not establish systemic
    or institutional racist behaviour.  I agree with GMs submission that a single
    incident of this kind, with a single employee, over the course of an eight-year
    working relationship cannot objectively ground a finding of a work environment
    poisoned by racism.

[72]

Second,
    Johnson acknowledged at trial that he was satisfied, and there were no
    outstanding racism issues, when Markov agreed on June 30, 2005 to step down as
    a group leader and, again, in August 2005 when Markov was disciplined.  Only when
    Markovs suspension was rescinded on appeal under the collective agreement did
    Johnson again allege racism in the workplace.  Dissatisfaction with the results
    of a legitimate grievance process cannot anchor a claim for constructive
    dismissal.

[73]

Third,
    the trial judge committed several additional errors in finding constructive
    dismissal based on a poisoned work environment due to racism.  The trial judge
    identified the following factors as supporting his conclusion that
    circumstances were such as would justify Mr. Johnson to consider he had been
    constructively dismissed from his employment:

(a)   Markovs
    behaviour in failing to attend his GMS training session, coupled with his
    reason for that failure  the 1997 Incident  and his subsequent embellishment
    of the circumstances surrounding the 1997 Incident during his interview with
    Laverdière;

(b)   the
    underlying import and impact of Markovs unexpected resignation from his group
    leader position;

(c)   Hayess
    statement to Johnson;

(d)   Tuckers
    opposition to and reluctance to accept Markovs resignation as a group leader
    in the body shop;

(e)   GMs
    return of Markov to the position of group leader;

(f)    the

overturning

of

Markovs

disciplinary suspension because of
    ongoing contractual negotiations between GM and its employees;

(g)   Markovs
    threats against Johnson; and

(h)   GMs
    insistence that Johnson return to the work environment in which his
    difficulties first arose under pain of being considered to have resigned his
    employment.

[74]

The
    first factor, in my view, affords no support for the finding that Johnson was
    constructively dismissed by reason of a poisoned work environment due to
    racism.  I have already concluded that the trial judges finding of
    racially-motivated conduct by Markov is unreasonable and unsupported by the
    evidence.

[75]

It
    is difficult to understand how the second factor cited by the trial judge
    contributes to a finding of constructive dismissal based on a poisoned work
    environment due to racism.  Markovs resignation as a group leader was proposed
    by his union representative.  On the trial judges findings, Johnson
    unconditionally accepted this proposed resolution of his racism complaint.
    There is no evidence that Johnson viewed the proposed resolution as itself
    inspired by racism.

[76]

As
    I have said, there is no doubt that the third factor  Hayess statement that
    he could avoid GMS training by claiming prejudice, as Markov allegedly had done
     was an inappropriate, race-related comment.  Tucker concluded as much.  He
    promptly instructed Hayes to apologize to Johnson.  Hayes did so, and Johnson
    accepted Hayess apology.  These facts do not support the conclusion that the
    GM body shop was a poisoned workplace due to racism.  Accepting the offensive
    nature of Hayess statement, Tuckers actions signify GMs intolerance, rather
    than acceptance, of inappropriate, race-related comments in the workplace.

[77]

Nor
    does the fourth factor relied on by the trial judge support a finding of
    constructive dismissal based on a poisoned workplace due to racism.  Tucker
    testified that he was opposed to the union proposal that Markov step down as a
    group leader because it would permit Markov to unilaterally determine whether he
    would comply with a mandatory training requirement imposed by his employer.
    Tucker regarded the resignation proposal as a poor precedent that, in effect,
    would allow Markov to work the system.  Nonetheless, on the advice of labour
    relations representatives, Tucker accepted the proposal.  And, on the trial
    judges findings, Johnson also unconditionally agreed to the proposed
    resolution.

[78]

Thus,
    on the evidence accepted by the trial judge, Markovs resignation as a group
    leader was a negotiated compromise in the grievance disciplinary process.
    Tuckers personal reaction to it is irrelevant.  Johnson accepted the proposed
    resolution.  I did not understand Johnson to claim that the proposal, or Tuckers
    reaction to it, were motivated by racism.

[79]

The
    trial judge next identified GMs return of Markov to a group leader role and the
    overturning of Markovs suspension as indicia of a poisoned work environment
    that led to Johnsons constructive dismissal.  The trial judge was critical of
    the grievance process that led to Markovs suspension and its revocation on
    appeal in part on the basis that Johnson did not participate in either hearing.
    He also held that GM ignored Markovs voluntary demotion, carried on as if his
    resignation as a group leader had not occurred, and traded away Johnsons
    human rights as a bargaining chip in its contractual negotiations with the
    union.

[80]

With
    respect, these holdings reflect a fundamental misapprehension of the evidence.
    The evidence at trial established that Markov was in fact removed from his role
    as a group leader.  Tucker testified that when Johnson observed Markov at work
    in the body shop after the plant summer shutdown, Markov was performing group
    leader functions on a temporary basis in his assigned role as a utility replacement
    representative.  Johnson has pointed to no evidence admitted at trial that
    contradicts this explanation for Markovs activities on the day in question.
    Johnson had simply assumed, as Bantam had based on Johnsons reported
    observations of Markov, that Markov continued in the role of a group leader in
    violation of the agreed complaint resolution.

[81]

However,
    Markov was reinstated as a group leader and his suspension was rescinded only
    after his successful appeal under the plant grievance procedures.  GM did not
    control these contractual procedures, including the appeal process and its
    outcome.  Johnson was not a party to the grievance process, which involved only
    GM and Markov in accordance with the procedures outlined under the applicable
    collective agreement.  There is no evidence that the grievance process permitted
    or contemplated Johnsons participation or that his involvement in the
    discipline and appeal hearings was within GMs control.

[82]

Moreover,
    the grievance process had nothing to do with Johnsons human rights.  Both the
    discipline and appeal hearings were concerned with whether GM had acted
    properly, in accordance with the collective agreement, in suspending Markov for
    failing to obey a direct order that he take GMS training with Johnson.  Johnsons
    human rights were not engaged at either hearing.

[83]

I
    also note that there was no evidence at trial (1) concerning the position taken
    by GM at the grievance appeal hearing or (2) establishing that GM stood to
    benefit in its contractual relations with the union if Markov were to be returned
    to a group leader position.  Although Johnson maintained that his human rights
    were somehow compromised during the grievance process, no GM witness was
    cross-examined on this issue.

[84]

In
    a related finding, the trial judge also held that Johnson was adversely
    affected not only by Markovs initial expression of racist behaviour but, as
    well, by GMs failure to follow up and live by the agreements and resolutions
    entered into.  The trial judge directed several criticisms at GM in this
    regard.  In many instances, these criticisms were unfounded or simply
    inaccurate.

[85]

For
    example, the trial judge criticized Tucker for not being outraged on June 28,
    2005 at Markovs conduct when Johnson reported racism and, on the evidence
    accepted by the trial judge, for attempting to persuade Johnson not to pursue
    Markovs behaviour any further.  Johnson, however, did not allege or complain of
    racism until June 30, in his meeting with Bantam.  As a result, anything Tucker
    said to Johnson on June 28 about continuing to press the matter of Markovs
    failure to attend his GMS training session could not have been referable to
    racism, at least insofar as Tucker was concerned.

[86]

In
    addition, the trial judge stated in respect of GMs investigations of Johnsons
    complaint, It is not without note that no one in the GM organization charged
    with the responsibility of investigating [Johnsons] allegations of racist
    behaviourever interviewed Michaud. This assertion, too, is incorrect.  Laverdière
    interviewed Michaud as part of her investigation.

[87]

The
    seventh marker of a poisoned work environment identified by the trial judge was
    Markovs threats against Johnson.  This factor, if properly established by
    admissible evidence at trial, may well have been significant.  However, during
    oral argument before this court, Johnsons counsel fairly conceded that, at
    best, the evidence of a threat of harm by Markov was unproven hearsay.  Johnson
    claimed that he had been told by a co-worker that Markov had threatened to harm
    him, presumably in retaliation for Johnsons racism complaint.  But Johnson led
    no evidence at trial of an actual threat, nor any evidence from the person or
    persons who allegedly told him of the purported threat.

[88]

Finally,
    there is the matter of GMs position concerning Johnsons return to work.  The
    trial judge held that GM insisted and attempted to bully Johnson into
    returning to work in the environment in which his difficulties first arose,
    failing which he would be considered to have resigned his employment with GM.
    He held, in effect, that GM acted unreasonably and failed to accommodate
    Johnsons disability by failing to provide him with a healthy, discriminationfree
    work environment.

[89]

I
    make several observations regarding these findings.  First, contrary to the
    trial judges findings, GM did not insist that Johnson return to a paint
    shop as a production supervisor.  Nor did it suggest that Johnson return to
    work in virtually the same work environment  in which there was the potential
    of encountering the same individual who had caused him grief in the
    beginning.  The evidence at trial established that Goard offered Johnson two
    alternate manufacturing positions, located in facilities outside the assembly
    plant body shop where he had experienced his difficulties with Markov, in
    buildings situate some distance away from the body shop.  Only one of these
    facilities was the plant paint shop.  Markov did not work in either facility.

[90]

Second,
    as the trial judge himself recognized, Johnson did not have the right to
    dictate where he would work or the employment role he would assume on his return
    to work.

[91]

Third,
    and importantly, an objective standard governs the determination whether a
    workplace is poisoned, by reason of racism or harassment:
Houtz
at
    para. 45.  Further, in order to establish a claim of constructive dismissal, an
    employee must prove that the employers conduct constituted a repudiation of
    the contract of employment, such that the employer no longer intended to be
    bound by the contract:
Farber
at para. 24.  As Finlayson J.A. of this
    court stated in
Smith v. Viking Helicopters Ltd.
(1989), 68 O.R. (2d)
    228, at p. 231, The employer must be responsible for some objective conduct
    which constitutes a fundamental change in employment or unilateral change of a
    significant term of that employment.  See also
Ata-Ayi
, at para. 45;
Shah
,
    at paras. 6-8.  Moreover, where it is alleged that an employee has been
    constructively dismissed by reason of a poisoned work environment due to
    racism, the employee must also establish that the employers persistent conduct
    has rendered his continued employment intolerable:
Shah
at para. 6;
Bobb
at paras. 85 and 87.

[92]

In
    this case, given the trial judges finding that GMs repeated investigations of
    Johnsons racism complaint were deficient, the critical issues were, first,
    whether GM repudiated its employment contract with Johnson and, second, whether,
    evaluated objectively, its decision to treat Johnsons refusal to return to
    work as a voluntary resignation was reasonable.

[93]

It
    is here, in my opinion, that the trial judges constructive dismissal analysis
    fatally founders.  The trial judge was obliged to consider all the evidence of
    the circumstances surrounding Johnsons termination of employment and the
    entire context in which the termination occurred.  In my opinion, viewed in
    that fashion, the evidence does not support the conclusion that GM repudiated
    its employment contract with Johnson or that it acted unreasonably in treating
    Johnsons decision not to return to work as a voluntary resignation of his
    employment with GM.

[94]

Even
    if GMs investigations of Johnsons racism complaint were imperfect, the
    investigations did not reveal any intention by GM to repudiate its employment
    contract with Johnson.  I did not understand Johnson to argue to the contrary.

[95]

Nor,
    as a matter of law, did Goards position concerning Johnsons potential return
    to work constitute a repudiation of the employment contract.  GM, through
    Goard, offered Johnson two employment opportunities outside the assembly plant
    body shop. These offers of continuing employment are inconsistent with the
    notion that GM was resiling from its employment relationship with Johnson.  In
    fact, GM concluded that Johnson himself had effectively elected to terminate
    his employment relationship with GM only after Johnson declined to accept the
    employment positions offered by GM, failed for another two months to return to
    work, and failed to provide GM with current medical evidence to support his
    claim of continuing disability.

[96]

The
    trial judge appears to have concluded that GM repudiated Johnsons employment
    contract by failing to provide him with a discrimination-free employment
    environment.  With respect, this misconceives GMs obligations in the
    circumstances.

[97]

During
    oral argument, Johnson acknowledged that he did not lead any medical evidence
    at trial supporting his claim of continuing disability or indicating that he
    required workplace accommodation outside of any GM plant due to disability.
    Nor did he furnish such evidence to GM when discussing his return to work with
    Goard in the summer of 2007.  In the absence of contrary evidence from Johnson,
    GM was entitled to rely on the advice of its plant physician that Johnson was
    fit to return to work without accommodation measures.

[98]

Nevertheless,
    GM did seek to accommodate Johnson by offering him employment as a production
    supervisor, a position similar to the one he had previously occupied, in two
    different plants located in separate buildings about one kilometre away from
    the body shop.  GM also offered flexibility in terms of shift and perhaps,
    supervision.  Johnson declined these offers.  At trial, he explained this
    decision by asserting that if he accepted a position in the paint shop, he
    might encounter Markov (or other body shop personnel) if they were required to
    attend at the paint shop to deal with a product defect.

[99]

GM,
    however, was not obliged to immunize Johnson from any future contact with
    Markov or other body shop employees.  The information available to GM did not
    establish racism by Markov or other body shop employees.  In any event, the
    mere possibility of contact with body shop employees, including Markov, does
    not alone establish that such exposure would result in future discriminatory
    treatment of Johnson.  I also note that GM offered Johnson employment in the
    truck plant, as well as the paint shop.

[100]

In all these
    circumstances, GMs decision to treat Johnsons refusal to return to work as a
    voluntary resignation cannot be said to be objectively unreasonable.

[101]

I therefore
    conclude that the trial judges key findings of a poisoned work environment due
    to racism, resulting in Johnsons constructive dismissal, cannot withstand
    close scrutiny when assessed in the context of the entire evidentiary record.  On
    this record, these findings are unreasonable.  It follows that, on this ground
    as well, the trial judges liability finding against GM cannot stand.

(4)     Trial Judges Awards of Special and
Wallace
Damages

[102]

Johnson does not
    claim and the trial judge made no finding of constructive dismissal independent
    of racism in the workplace.  Since I have concluded that the liability finding
    against GM must be set aside, it is unnecessary to consider GMs alternative
    argument that the trial judge erred in law by awarding Johnson special and
Wallace
damages.

VI.     Conclusion and Disposition

[103]

There is no
    reason to question that Johnson genuinely believed that he had been the victim
    of racism in his workplace.  I accept that his perception of events
    unfortunately led to stress and mental anguish.  However, I also conclude that
    the evidentiary record in this case does not support the trial judges findings
    of racism, a work environment poisoned by racism and, hence, Johnsons
    constructive dismissal.

[104]

For the reasons
    given, I would allow the appeal, set aside the trial judgment and the trial
    judges costs award in Johnsons favour, and dismiss

Johnsons action against GM.  GM does not seek its
    costs of the trial or this appeal.  Accordingly, I would make no order as to
    costs.

Released:

DD                                         E.A. Cronk
    J.A.

JUL 31 2013                           I agree Doherty
    J.A.

I agree
    David Watt J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Henry v. Gore Mutual Insurance Company, 2013 ONCA
    480

DATE: 20130716

DOCKET: C55845

Simmons, Hoy and Strathy JJ.A.

BETWEEN

Tyrone Henry

Applicant (Respondent)

and

Gore Mutual Insurance Company

Respondent (Appellant)

Philippa G. Samworth, for the appellant

Joseph Y. Obagi, for the respondent

Heard: May 16, 2013

On appeal from the judgment of Justice Timothy D. Ray of
    the Superior Court of Justice dated June 27, 2012, with reasons reported at
    2012 ONSC 3687.

Hoy J.A.:

I.

OVERVIEW

[1]

The respondent, Tyrone Henry, was left a paraplegic after a motor
    vehicle accident on September 28, 2010. His mother took an unpaid leave of
    absence from work to provide the full-time care he required.

[2]

In 1990, limits were introduced on tort compensation for victims of
    automobile accidents and insurers were required to provide various benefits
    prescribed by regulation, including paying for the reasonable and necessary
    expenses incurred by or on behalf of an insured for attendant care, subject to
    various limitations, regardless of whether the insured was at fault.

[3]

The issue on this appeal is whether, under the regulation in effect at
    the time of the respondents accident  the
Statutory Accident Benefits
    Schedule  Effective September 1, 2010
, Ont. Reg. 34/10 (SABS-2010)
    the appellant insurer, Gore Mutual Insurance Company, is required to pay
    attendant care benefits for the entire 24 hours per day that the respondent
    required, and the mother provided, care, or only for the care provided during
    the 40 hours per week of paid employment foregone by the mother. The insurer
    took the position that because the mother worked an eight hour day, the amount payable
    for attendant care benefits would be pro-rated, based on an eight hour day.

[4]

The application judge concluded that the insurers obligation to pay for
    attendant care benefits was not restricted to care provided during the 40 hours
    per week of paid work foregone by the mother.  I agree, and, for the reasons
    that follow, would dismiss this appeal.

II.

SABS 2010 - THE RELEVANT PROVISIONS

[5]

This appeal turns of the interpretation of the term incurred defined
    in s. 3 (7)(e) of SABS-2010:

3(7) For the purposes of this Regulation,

(e)  , an expense in respect of goods and
    services referred to in this Regulation is
not incurred by an insured
    person unless,

(i)      the insured
    person has received the goods or services to which the expense relates,

(ii)      the insured
    person has paid the expense, has promised to pay the expense or is otherwise
    legally obligated to pay the expense, and

(iii)    the person
    who provided the goods or services,

(A)     did
    so in the course of the employment, occupation or profession in which he or she
    would ordinarily have been engaged, but for the accident, or

(B)
        sustained an economic loss as a result of providing the goods or services
    to the insured person;

[Emphasis added.]

The appellant concedes that the requirements of
    3(7)(e)(i) and (ii) are met, and that the mother sustained an economic loss as
    a result of providing attendant care services to the respondent. The issue is
    whether an expense was incurred by the respondent with respect to the attendant
    care services provided by his mother outside of her normal hours of work.

[6]

Economic loss is not defined in SABS-2010.

[7]

The term incurred is used in s. 19 of SABS-2010, which governs payment
    of attendant care benefits:

19(1) Attendant Care benefits shall pay for all
    reasonable and necessary expenses,

(a) that are
incurred
by or on behalf of
    the insured person as a result of the accident for services provided by an aide
    or attendant

19(2) Subject to subsection (3), the amount of a
    monthly attendant care benefit is determined in accordance with the version of
    the document entitled Assessment of Attendant Care Needs that is required to
    be submitted under section 42 and is calculated by,

(a) multiplying the total number of hours per
    month of each type of attendant care listed in the document that the insured
    person required by an hourly rate that does not exceed the maximum hourly rate,
    as established under the Guidelines, that is payable in respect of that type of
    care; and

(b) adding the amounts determined under clause
    (a), if more than one type of attendant care is required.

[Emphasis added.]

[8]

Subsection 3(7)(c) defines an aide or attendant to include a family
    member or friend who acts as the persons aide or attendant, even if the family
    member or friend does not possess any special qualifications.

[9]

Subsection 19(3) sets out maximum amounts payable for attendant care.
    Unless increased by optional benefits, the amount of the attendant care benefit
    for someone such as the respondent who sustained a catastrophic impairment as a
    result of the accident shall not exceed $6,000 per month and $1,000,000 for any
    one accident.

[10]

The
    document entitled Assessment of Attendant Care Needs that is required to be
    submitted under s. 42 of SABS-2010, and referred to in s. 19(2), is known as
    Form 1.  Section 42 provides that it must be prepared and submitted to the
    insurer by an occupational therapist or a nurse. It sets out the weekly
    attendant care needs of the insured, at various levels of care, and applies a
    statutory rate to each level, to calculate the total monthly care benefit
    payable. Subsection 42(3) provides that the insurer may, by notice to the
    insured, challenge a Form 1 within 10 days after receiving it. The insurer must
    specify the expenses described in the assessment of attendant care needs the
    insurer agrees to pay, the expenses the insurer refuses to pay and the medical
    and any other reasons for the insurers decision.  Under ss. 42(4) and 44(1),
    it may require the insured to undergo an examination by persons chosen by the
    insurer who are regulated health professionals or who have expertise in
    vocational rehabilitation; however, s. 42(6) requires that the insurer begin
    payment of attendant care benefits within 10 business days after receiving the
    assessment of attendant care needs and, pending receipt by the insurer of the
    report of any examination under section 44, shall calculate the amount of the
    benefits based on the assessment of attendant care needs.

[11]

Finally,
    subsection 33(1) requires an insured, within 10 business days after receiving a
    request from the insurer to provide the insurer with certain information,
    including, [a]ny information reasonably required to assist the insurer in
    determining the applicants entitlement to a benefit. And subsection 33(6)
    provides that an insurer is not liable to pay a benefit in respect of any
    period during which the insured fails to comply with subsection 33(1).

III.

THE APPLICATION JUDGES DECISION

[12]

The
    application judge commented that the intent of SABS-2010 was to prevent a
    member of an insureds family who was not ordinarily an income earner or
    working outside the home, from profiting from an attendant care benefit, when
    they would likely be at home anyway  and would have looked after the injured
    person without compensation.

[13]

He
    noted that economic loss was not defined in SABS-2010.  He reasoned:

If the amount as opposed to the fact of economic loss were
    intended to be relevant, then one would expect the regulations to be of
    assistance in calculating the amount, since economic loss has been defined in
    very broad terms in claims for compensation in tort law cases, and has been the
    subject of a great deal of jurisprudence because of the difficulty in
    quantification. This omission implies that no such calculation is relevant
    beyond a finding that the person has
sustained an economic loss
  or
    not. It is a threshold finding for incurred expense, but is not intended as a
    means of calculating the quantum of the incurred expense. I accept that the
    amended provisions now eliminate claims by non professional service providers
    who have not sustained an economic loss.

[14]

On
    a plain reading of s. 19(1),  if a family member stays home from work and
    loses income in order to provide all reasonable and necessary attendant care to
    the insured, and the insured is obligated to pay, promises to pay or does pay
    the family member, then the definition in s. 19(1) has been met. The insurer
    must pay all reasonable and necessary attendant care expenses to the insured as
    described in the Form 1.

IV.

THE APPELLANTS SUBMISSIONS

[15]

The
    appellant argues that the application judge made two errors in interpreting
    SABS-2010.

[16]

First,
    his interpretation does not give effect to the word the, which precedes
    goods or services in s. 3(7)(e)(iii)(B).  That word co-relates the economic
    loss to the particular services provided to the insured person. In this case,
    the respondents mother only sustained an economic loss as a result of
    providing the attendant care services she provided during the hours that she
    would otherwise be working, and the appellant is therefore only required to pay
    for attendant care in respect of those hours.

[17]

Moreover,
    the legislative history indicates that SABS-2010 was intended to limit
    compensation payable to family members. If the insurer is required to pay the
    insured for all attendant care provided by a family member during the period of
    economic loss, SABS-2010 would not achieve that objective.

[18]

Second,
    the application judge erred in finding that the insurer must pay all of the
    expenses described in the Form 1. Payment in accordance with Form 1 is not
    automatic. The Form 1 identifies attendant care needs, but does not constitute
    evidence that expenses have been incurred. The insurer is entitled to request
    additional information from the insured to satisfy itself that an expense has been
    incurred: see
McKnight v. Guarantee Co. of North America
, FSCO
    A02-000299, 2003 CarswellOnt 5408, at paras. 11-13;
Stargatt v. Zurich
    Insurance Co.
, FSCO P01-00045, 2003 CarswellOnt 6358, at para. 32;
Fernandes
    (Attorney of) v. Certas Direct Insurance Co.
, FSCO P06-00030, 2008
    CarswellOnt 988, at paras. 45 and 47. The application judges interpretation would
    hamper insurers ability to combat fraud.

[19]

I
    address these two issues in turn.

V.

ANALYSIS of issue one

(1)

Guiding approach and conclusion

[20]

In
    my approach to the first issue before me, I am guided by this courts decision
    in
Monks v. ING Insurance Co. of Canada
2008 ONCA 269, 90 O.R. (3d)
    689.

[21]

In
Monks
, this court considered the interpretation of the word incurred
    in the
Statutory Accidents Benefits ScheduleAccidents on or after November
    1, 1996
, O. Reg. 403/96 (SABS-1996). The word incurred was not defined
    in SABS-1996.  At para. 51, the court noted that SABS-1996 was incorporated in
    every standard insurance policy by virtue of s. 268(1) of the
Insurance Act
,
    R.S.O. 1990, c. I.8 (the Act). The court explained that, as such, the
    principles applicable to the construction of insurance coverage provisions were
    applicable to it: insurance coverage provisions are to be interpreted broadly,
    while coverage exclusions or restrictions are to be construed narrowly in
    favour of the insured.  To the extent that the word incurred restricts
    coverage available to the insured, it must be assigned a narrow meaning.

[22]

Applying
Monks
, I agree with the application judge that, under SABS-2010,
    economic loss serves as a threshold for entitlement to (and not as a measure or
    factor in quantifying the amount of) reasonable and necessary attendant care
    benefits to be paid by an insurer. I conclude this based on the language used,
    the scheme and logic of SABS-2010, and the fact that the legislature could
    have, but did not, include a provision in SABS-2010 for calculating the amount
    payable where a family care-giver sustains an economic loss as a result of
    providing required care to an insured.  Moreover, this interpretation is not
    inconsistent with the evolution of the regulations governing payment for
    attendant care provided by family members or the five-year report on automobile
    insurance in Ontario released by the Financial Services Commission of Ontario
    (FSCO) shortly before SABS-2010 came into force.

(2)

The language used

[23]

I
    do not read the word the in s. 3(7)(e)(iii)(B) as necessarily limiting an
    insureds entitlement to attendant care benefits to those provided during the
    hours that the family member would otherwise be at work. In my view, applying
Monks
,
    the goods or services in s. 3(7)(e)(iii)(B) should be broadly construed to
    refer to the goods or services referred to in [SABS-2010] referenced in the
    opening words of s.3(7)(e). SABS-2010 refers to a number of kinds of goods and
    services, including, in s. 19(1)(a), the services provided by an aide or
    attendant. Accordingly, I read s. 3(7)(e)(ii)(B) as referring to an economic
    loss as a result of providing services as an aide or attendant.

(3)

The scheme and logic of SABS-2010

[24]

This
    interpretation is also consistent with the scheme and logic of SABS-2010.
    Subsection 19(2) provides that, subject to the maximums set out in subsection
    19(3), the
amount
of a monthly care benefit is
determined
in accordance with the Form 1 required to be submitted under s. 42, and is
    calculated based on the number of hours of each type of attendant care
that
    the

insured person requires
. As the respondent argues, s. 19(2)
    makes clear the underlying premise that, once entitlement is determined, the amount
    of the benefit is based on the insureds need for care. That amount is, of
    course, subject to the maximums in s. 19(3), and the insurer has the right to
    challenge a Form 1 (pursuant to s. 42) and to request certain information to
    assist it in determining the insureds entitlement (pursuant to s. 33).
[1]

(4)

What SABS-2010 does not say

[25]

As
    the application judge indicates, if the amount of the monthly care benefit were
    to be calculated based upon the number of hours the family care-giver was
    unable to work because she was providing care, or the quantum of the economic
    loss sustained by the care-giver, SABS-2010 could have so indicated. SABS-2010
    is comprehensive legislation. In ss. 4, 7, 8, 9 and 30, it includes detailed
    formulas for the calculation of income replacement benefits, the adjustment of
    those benefits after age 65 and their indexation.

(5)

Legislative history and intent

[26]

I
    agree with the appellant that the evolution of the regulations governing
    payment for attendant care provided by family members and the five-year report
    on automobile insurance in Ontario released by FSCO shortly before SABS-2010
    came into force support his argument that SABS-2010 was intended to provide a
    check on payments to family care-givers.  However they do not, in my view,
    support the appellants interpretation of s. 3(7) (e).

[27]

Under
    the first Statutory Accident Benefits Schedule enacted by the government of
    Ontario  the
Statutory Accident Benefits ScheduleAccidents Before January
    1, 1994
, R.R.O. 1990, Reg. 672, (SABS-1990)  insurers were required to
    pay the amount of the gross income reasonably lost by a person other than the
    insured person as a result of the accident in caring for the insured person, to
    a maximum of $3,000 a month, and $500,000 with respect to each insured person. Insurers
    were not required to pay for attendant care provided by family members who did
    not lose income as a result of providing care:
Monachino v. Liberty
(2000), 47 O.R. (3d) 481.

[28]

Section
    47 of the next Statutory Accident Benefits Schedule enacted by the government
Statutory Accident Benefits ScheduleAccidents After December 31, 1993 And
    Before November 1, 1996
, O. Reg. 776/93 (SABS-1994)  provided for the
    compensation of family members of the insured person who provided attendant
    care, without proof of loss of income. SABS-1996 continued this treatment of
    care-giving by family members.

[29]

On
    March 31, 2009, FSCO released its first, five-year report on automobile
    insurance in Ontario. The report, which was mandated under s. 289.1 of the
Insurance
    Act
, summarized issues and concerns raised by stakeholders, and included
    recommendations aimed at improving the effectiveness and administration of the
    automobile insurance system.

[30]

The
    appellant points to the concerns raised by the Insurance Bureau of Canada
    (IBC) with respect to attendant care. At pages 44-45, FSCO reported that IBC
    indicated that over-utilization of the attendant care benefit was becoming a
    problem, with a 59.1 per cent increase in attendant care costs between 2004 and
    2007. FSCO also reported anecdotal information from the insurance industry
    suggesting that an increasing number of claimants with minor injuries are now
    claiming and receiving attendant care benefits. At page 45, FSCO expressed
    concern that assessments were being conducted by individuals without explicit
    training in functional assessments to address functional impairment At page
    46, it recommended that only occupational therapists and nurses who have been
    trained on the use of Form 1 should be permitted to assess auto accident
    victims for the attendant care benefit.
[2]
It concluded that, if adopted, this recommendation should provide insurers with
    more confidence of the necessity of the attendant care claimed.

[31]

At
    p. 47, FSCO also addressed the payment of attendant care benefits to family
    members:

Another issue raised in the IBC submissions related to the
    payment of attendant care benefit to a claimants family members and friends.
    Insurers are concerned that the benefit can become a windfall for the claimant
    if no actual services are provided.The IBCs solution is to restrict payment
    to family members only where it can be shown that an economic loss has been
    incurred.

[32]

FSCO
    rejected IBCs solution:

The issue is not so much who is providing the care but whether
    care is actually required. FSCO believes that proper use of the Form 1 to
    screen claims is the most effective approach to ensuring that the benefit is
    paid to those who truly need the care. Introducing additional disability or
    functional eligibility tests or requiring caregivers to demonstrate economic
    loss would add more complexity to the system.

[33]

SABS-2010,
    enacted without official commentary following the release of FSCOs report,
    required the Form 1 to be prepared by an occupational therapist or a registered
    nurse, and included the language at issue, requiring that the family care-giver
    have sustained an economic loss as a result of providing the attendant care
    services to the insured.

[34]

IBCs
    solution, as summarized by FSCO, did not include restricting the amount of
    the payment for attendant care to care provided during the period that the
    family care-giver would otherwise have been at work, as the appellant now
    proposes. Nor, based on FSCOs summary, did it propose reverting to the system
    in SABS-1990, which provided for reimbursement of income reasonably lost by a
    person other than the insured in caring for the insured, subject to maximums.

[35]

In
    my view, the requirement adopted (that the family care-giver have sustained an
    economic loss) provides a rough check on attendant care costs.

[36]

Attendant
    care benefits are only payable in respect of the provision by a family member
    of care detailed in the Form 1 assessment of the insureds attendant care needs
    if the family member sustains an economic loss as a result of providing such
    care to the insured.  If an economic loss is sustained, attendant care benefits
    are payable with respect to all care detailed in the Form 1 provided by the
    family member, subject to the maximums in s. 19(3) and various other
    safeguards, including ss. 42 and 33 of SABS-2010.  If no such loss is
    sustained, no attendant care benefits are payable in respect of care provided
    by the family member, even if the family member provides care that would
    otherwise be provided by someone in the course of their employment, occupation
    or profession and would necessitate the payment of attendant care benefits by
    the insured.  And to the extent that the economic loss sustained by the family
    member as a result of providing such care to an insured exceeds the maximum
    attendant care benefits stipulated in SABS-2010, the family member is not
    indemnified.

(6)

Definition of economic loss

[37]

The
    appellant argues that because economic loss is not defined in SABS-2010,
    insurers risk facing claims for attendant care benefits founded on wide and
    expansive interpretations of economic loss, or
de minimis
financial
    or monetary loss.
[3]
If this transpires, it argues, the reduction in attendant care costs the
    legislature sought to achieve with SABS-2010 will not be achieved. The
    appellant urges the court to define economic loss for the purpose of
    SABS-2010. I would decline to do so. On the facts of this case, economic loss
    is clear. The respondents mother gave up full-time paid employment to provide
    care for her son on a 24-hour per day basis.

VI.

ANALYSIS OF ISSUE TWO

[38]

As
    indicated above, the appellant argues that the application judge erred in
    stating that the insurer must pay all of the expenses described in the Form 1. It
    must be noted that the appellant conceded that the full-time care described in
    the Form 1 was reasonable and necessary, and that the mother provided it. The
    statement by the application judge must be viewed in that light, and not as
    derogating from an insurers right to challenge the assessment of an insureds
    attendant care needs reflected in the Form 1 pursuant to s. 42, or to request
    additional information from the insured pursuant to s. 33(1) of SABS-2010 to
    satisfy itself that the care was provided and the expense claimed was incurred.

[39]

The
    three FSCO decisions that the appellant relies on
Stargratt
,
McKnight
and
Fernandes
 involved disputes with respect to attendant care
    benefits governed by SABS-1996. SABS-1996 did not contain a definition of
    incurred.  At issue in each if these cases was whether the Form 1 created an
    automatic entitlement to payment.

[40]

McKnight
held that the insurer may in some cases require additional information pursuant
    to s. 33 of SABS-1996 to satisfy itself that the attendant care services were
    provided. Subsection 33(1) provides that a person applying for a benefit under
    SABS-1996 shall, within 10 days after receiving a request from the insurer,
    provide the insurer with any information reasonably required to assist the
    insurer in determining the persons entitlement to a benefit. Substantially the
    same language is included in s. 33(1) of SABS-2010.

[41]

In
Fernandes
, the insured sought recovery for the attendant care provided
    by family members, in addition to expenses paid to long term care facilities,
    in accordance with the Form 1. The Arbitrator found that only a small portion
    of the attendant care provided by family members was reasonable and necessary
     a pre-condition in SABS-1996 which remains in SABS-2010. FSCO held that a
    Form 1 does not bind an arbitrator, and that the onus was on the insured to
    establish that the attendant care sought was reasonable and necessary. FSCO
    agreed with the arbitrator that the additional care provided by the family was
    neither reasonable nor necessary.
Fernandes
cited
McKnight
:
    SABS 1996 requires a benefit to be paid in accordance with the Form 1 only once
    entitlement to the benefits has been established.

[42]

Stargratt
,
    which preceded
McKnight
, commented in
obiter
, at para. 32,
    that insurers are entitled to require documentation of caregiver and attendant
    care services claimed.

[43]

In
    my view, s. 33(1) of SABS-2010 and the three FSCO cases that the appellant
    relies on make clear that an insurer can request information to verify that a
    family member has sustained an economic loss as a result of providing care to
    the insured, and, viewed in context, the application judge did not indicate to
    the contrary.

VII.

SUMMARY, DISPOSTION AND COSTS

[44]

In
    this case, the appellant does not challenge the Form 1, Assessment of Attendant
    Care Needs prepared in respect of the insured.  That form established the need
    for 24 hour care and the amount payable for that care. As long as the care was
    provided and the family member who provided the care sustained an economic loss
    in so doing, the amount payable is not reduced only because the number of hours
    of paid employment forgone by the family member was fewer than the number of
    hours of care provided pursuant to the Form 1.

[45]

I
    would accordingly dismiss this appeal. I would award costs to the respondent in
    the agreed amount of $17,402.32, inclusive of disbursements and applicable
    taxes.

Released:

[1]
The
    SABS-2010 also provides the insurer with other safeguards. For example,
    pursuant to s. 46.2(1), an insurer may also request a person who submits an
    invoice for payment for attendant care to provide any information required to
    assist the insurer, acting reasonably, to determine its liability for payment.
    And pursuant to s. 53, an insurer may terminate payment of benefits if the
    insured person has wilfully misrepresented material facts with respect to the
    application for the benefit and the insured has been provided with notice
    setting out the reasons for the termination.  It should also be noted that
    pursuant to the Act, the insurer can refer disputes in respect of an insured
    persons entitlement to statutory accident benefits or in respect of the amount
    of statutory accident benefits to which an insured person is entitled to
    mediation. Subsection 279(1) of the Act provides that such disputes shall be
    resolved in accordance with ss. 280 to 283 of the Act and the
Statutory Accident
    Benefits Schedule
. Pursuant to those sections of the Act, either the
    insured or the insurer may refer the issue in dispute to a mediator and, if the
    mediation fails, the parties jointly or the mediator may refer the issue in
    dispute to a person appointed by the Director for an evaluation of the probable
    outcome. If the issue is not thereby resolved, the insured may then bring a
    court proceeding, refer the issue to an arbitrator under s. 282, or the insured
    and the insurer may agree to submit the matter in dispute to any person for
    arbitration in accordance with the
Arbitration Act, 1991
, S.O. 1991, c.
    17.

[2]
Subsection 39(1) of SABS-1996 provided that the Form 1 was to be prepared and
    submitted by a member of a health profession who is authorized by law to treat
    the persons impairment.

[3]
In
Simser v. Aviva Canada Inc.
,
    FSCO A11-004610, 2013 CarswellOnt 422, FSCO recently considered this issue.


COURT OF APPEAL FOR ONTARIO

CITATION: Kirby v. Hope Place Centres, 2013
    ONCA 459

DATE: 20130704

DOCKET: M42201 (M42084)

MacPherson, Rouleau and Lauwers JJ.A.

BETWEEN

Dorothy Kirby

Plaintiff (Appellant)

and

Hope Place Centres

Defendant (Respondent)

Dorothy Kirby, acting in person

Ron Craigen, for the respondent

Heard: July 3, 2013

Motion for an order varying the February 13, 2013 order
    of Justice Karen Weiler of the Court of Appeal for Ontario.

ENDORSEMENT

MacPherson and Rouleau JJ.A.

[1]

The appellant, Dorothy Kirby, brings this motion to set aside the
    decision of Weiler J.A. of this court dated February 13, 2013. In that
    decision, Weiler J.A. dismissed the appellants motion for leave to extend time
    to file a notice of appeal from the Order of Murray J. of the Superior Court of
    Justice dated June 7, 2012, which Order dismissed the appellants motion to set
    aside the Order of Gray J. of the Superior Court of Justice dated August 17,
    2011.

[2]

The appellant concedes that Weiler J.A. accurately stated the test for
    extending time to file a notice of appeal. However, the appellant asserts that
    Weiler J.A. misapplied the test in several respects.

[3]

The appellant contends that Weiler J.A. did not consider the prejudice to
    the appellant if an extension of time were not granted.  The appellant
    describes this prejudice as extreme because her civil action will not
    proceed.

[4]

The test for granting an extension of time includes prejudice to the
    respondent as a factor.  Weiler J.A. explicitly considered this factor; indeed
    she found it favoured the appellant, concluding that there is no prejudice to
    the respondent. There was no need for Weiler J.A. to go further and find that
    the appellant would be prejudiced if the motion were dismissed; this extreme
    consequence is the common result in every case in which an extension of time is
    not granted.

[5]

The appellant also asserts that Weiler J.A. ignored the justice of the
    case factor.  We disagree.  Although Weiler J.A. did not specifically mention
    this factor, it is obvious that her consideration and balancing (because the
    appellant was successful on the prejudice factor) of the other four factors was
    directed precisely at the justice of the case in the motion before her.

[6]

The appellant proposes to introduce fresh evidence, much of which is
    directed at showing that her appeal has merit.  In our view, this evidence does
    not meet the test for admission and is, therefore, not admitted.

[7]

The motion is dismissed. The respondent is entitled to its costs of the
    motion fixed at $2000, inclusive of disbursements and HST.

J.C. MacPherson J.A.

Paul
    Rouleau J.A.

Lauwers J.A. (dissenting):

[8]

The legal system does not deal well with people who are suffering from
    mental health issues, especially those who are self-represented. Fair access to
    justice can be a real problem for them. They sometimes require an unusually
    high level of judicial direction and assistance, including indulgences. Where
    there is evidence that an appellant has substantial mental health issues, as is
    shown in this case by the material in the record and the fresh evidence, it
    would, in my view, be appropriate to temper the elements in the ordinary tests
    somewhat in the interests of the justice of the case. The elements of the test
    at issue, in this case whether an extension of time to file a notice of appeal
    should be granted by the court, ought to be read through a mental health lens,
    with special focus on the actual prejudice to the responding party of granting
    the relief sought. I agree with the chambers judge that, on this record, there
    would be no real prejudice to the respondent if the appellant were given an
    extension of time to file the notice of appeal; I would therefore allow the
    fresh evidence motion and the appeal from the chambers judge, but would also
    impose peremptory orders on the appellant to move the appeal along.

P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Labourers' Pension Fund of Central and Eastern
Canada v. Sino-Forest Corporation, 2013 ONCA 500

DATE: 20130729

DOCKET: C56961 M42453

MacFarland, Watt & Epstein JJ.A.

In the Matter of the
Companies Creditors Arrangement Act
,
R.S.C. 1985, c. C-36, as amended

And in the Matter of a Plan of Compromise and Arrangement of
Sino-Forest Corporation

BETWEEN

The Trustees of the Labourers Pension Fund of Central
and Eastern Canada, The Trustees of the International Union of Operating
Engineers Local 793 Pension Plan for Operating Engineers in Ontario, Sjunde
Ap-Fonden, David Grant and Robert Wong

Plaintiffs

and

Sino-Forest Corporation, Ernst & Young LLP, BDO
Limited (formerly known as BDO McCable LO Limited), Allen T.Y. Chan, W. Judson
Martin, Kai Kit Poon, David J. Horsley, William E. Ardell, James P. Bowland,
James M.E. Hyde, Edmund Mak, Simon Murray, Peter Wang, Garry J. West, Pöyry
(Beijing) Consulting Company Limited, Credit Suisse Securities (Canada), Inc.,
TD Securities Inc., Dundee Securities Corporation, RBC Dominion Securities
Inc., Scotia Capital Inc., CIBC World Markets Inc., Merrill Lynch Canada Inc.,
Canaccord Financial Ltd., Maison Placements Canada Inc., Credit Suisse
Securities (USA) LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated
(successor by merger to Banc of America Securities LLC)

Defendants

Kirk M. Baert, Joathan Ptak, and Massimo Starino, for
the moving parties, class action plaintiffs

Peter H. Griffin and Peter J. Osborne, for Lawyers Ernst
& Young LLP

Michael C. Spencer and Megan B. McPhee, Yonatan
Rozenszajn, and Tanya T. Jemec, for responding parties, Invesco Canada Ltd.,
Northwest & Ethical Investments L.P., and Comité Syndical National de
Retraite Bâtirente Inc.

Derek J. Bell, for respondent Sino-Forest Corporation

Brandon Barnes and Susan E. Friedman, for the respondent
Kai Kit Poon

Joseph Marin, for the respondent Allen Chan

John Fabello and Adam Slavens, for the respondent
Underwriters

Heard and released orally: June 28, 2013

Motion to quash.

ENDORSEMENT

[1]

Earlier this week, this court denied the respondent objectors, represented
by Mr. Spencer and Ms. McPhee, leave to appeal under the
CCAA
for
reasons given at that time.

[2]

In these motions to quash, we need only consider whether the appellants (the
respondent objectors) have a right of appeal under s. 30 of the
Class
Proceedings Act
(
CPA
).

[3]

The appellants rely on ss. 30(3) and (5) of the
CPA.
In our
view, they do not come within either section.

[4]

Under s. 30(3) only a party to a class proceeding has a direct appeal to
the court from a judgment on common issues or an order under s. 24 of the
CPA
on an aggregate assessment of monetary relief. The appellants are not parties
to the class proceeding and therefore cannot appeal as of right under s. 30(3).
It is only under s. 30(5) that a class member has any right to appeal and then
only if that member first obtains leave of this court to act as a
representative party for the purposes of subsection (3): the right of appeal
from a judgment on common issues or under s. 24. These appeals are neither.

[5]

Accordingly, for these reasons, the appeals are quashed and the motion
to act as representative plaintiff is dismissed.

[6]

Costs to each of the moving parties fixed in the sum of $7500.00,
inclusive of disbursements and HST.