COURT OF APPEAL FOR ONTARIO

CITATION: Jog v. Bank of Montreal, 2020 ONCA 721

DATE: 20201112

DOCKET: C67578

Feldman, Simmons and Harvison Young JJ.A.

BETWEEN

Chandrahas Jog

Plaintiff (Appellant)

and

Bank of Montreal

Defendant (Respondent)

Chandrahas Jog, acting in person

Kate McNeill-Keller and Justine Lindner, for the
    respondent

Heard: November 4, 2020 by video conference

On
    appeal from the order of Justice Deena F. Baltman of the Superior Court of
    Justice, dated October 16, 2019.

REASONS FOR DECISION

[1]

The appellant is a former employee of the Bank of Montreal (BMO).
    Following attempts to accommodate him with the assistance of a third-party
    occupational therapist, BMO terminated the appellants employment.

[2]

Following his termination, the appellant commenced an action against BMO
    claiming, among other things, damages for intrusion upon seclusion arising from
    the use and release of information from a cognitive assessment conducted by the
    third party occupational therapist. BMO defended the claim. Ultimately, the
    appellant moved for summary judgment. BMO brought a cross-motion requesting
    that the appellants action be dismissed. The motion judge granted BMOs
    cross-motion. The formal order dismisses the appellants motion for summary
    judgment and his action.

[3]

In our view, the appellants appeal must be allowed because of a want of
    procedural fairness in the court below. Three hours of court time had been set
    aside for the motions. The motion judge called on the self-represented appellant
    first and advised him that he should focus on his response to the cross-motion.
    Without calling on BMO, the motion judge reserved her decision and subsequently
    delivered written reasons commencing as follows:

This is a motion by the Defendant Bank of Montreal (BMO) for
    summary judgment with respect to various claims by a former employee,
    Chandrahas Jog.

[4]

We acknowledge that the issues on the motions were inter-related.
    Nonetheless, we agree with the appellant that, in the circumstances of this
    case, if it was the motion judge's intention to address BMO's cross-motion
    first, as a matter of procedural fairness, it was incumbent on her to either
    call on BMO first or indicate she did not need to hear from BMO in response to
    the appellants motion but call on BMO to make submissions on the cross-motion.

[5]

As the appellant properly points out, the motions were to be heard
    orally, not in writing. The appellant stated at the conclusion of his
    submissions on his motion that he had reserved 20 minutes of his time to
    respond to the cross-motion. Given the issues he was required to address in
    response to the cross-motion and his status as a self-represented litigant, in
    addition to having an opportunity to read the cross-motion material, the
    appellant was entitled to hear BMO's submissions on the cross-motion and to
    have an opportunity to respond to them orally.

[6]

The appeal is allowed and the order below is set aside without prejudice
    to the rights of either party to renew their motion.

[7]

The appellant may submit written submissions on costs within seven days
    of the release of these reasons; the respondent may respond within seven days
    of receipt of the appellants submissions. Any such written submissions on
    costs shall not exceed two pages.

K. Feldman J.A.

Janet Simmons J.A.

A. Harvison Young
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Jonas v. Pacitto, 2020 ONCA 727

DATE: 20201112

DOCKET: C66537

Hourigan, Trotter and
    Jamal JJ.A.

BETWEEN

Laszlone Jonas

Applicant (Appellant)

and

Carlo Pacitto

Respondent (Respondent)

Matthew Tubie, for the appellant

Brigitta Tseitlin, for the respondent

Heard: October 14, 2020 by videoconference

On appeal from the order entered
    on December 21, 2018 by Justice Ronald P. Kaufman of the Superior Court of
    Justice, with reasons reported at 2018 ONSC 7720.

Trotter J.A.:

Introduction

[1]

Ms. Jonas and Mr. Pacitto married in 2003. They filed for divorce in
    2016. Prior to their marriage, they executed a Marriage Contract; it provided
    that, upon dissolution of the marriage, neither party would be entitled to the
    property of the other, and Ms. Jonas waived any right to claim spousal support.

[2]

The trial judge determined that the Marriage Contract was valid and
    binding as it applied to the division of property. However, he found that Ms.
    Jonas financial circumstances at the time of trial warranted some award of spousal
    support. He ordered Mr. Pacitto to pay Ms. Jonas a lump sum payment of $40,000.
    He also made a $25,738.34 costs award against Ms. Jonas.

[3]

On appeal, Ms. Jonas argues that the trial judge erred by failing to
    invalidate the Marriage Contract in its entirety. She also appeals the quantum
    of the lump sum award.

[4]

For the reasons that follow, I would allow the appeal in part. In my
    view, the trial judge erred in his assessment of the quantum of spousal support.
    He ordered minimal support based on Ms. Jonas annual income of $15,564, and
    Mr. Pacittos declared annual income of $24,226, but failed to attribute appropriate
    income from Mr. Pacittos residential real estate holdings, worth almost $5
    million at the time of trial.

Background

[5]

When they married, Ms. Jonas was 42 and Mr. Pacitto was 66. At trial
    they were 57 and 80, respectively.

[6]

Ms. Jonas came to Canada from Hungary as a refugee claimant in 2001. She
    was married and had three adult children. Mr. Pacitto, who immigrated to Canada
    from Italy in 1958, was married to his first wife for 40 years, until she
    passed away in 2000.

[7]

Mr. Pacitto acquired a number of properties while married to his first
    wife, including a number of houses on the street where he lived. He rented one
    of them to Ms. Jonas and her family. Mr. Pacitto also had a property in Bolton
    that he sold sometime before the trial.

[8]

Eventually, Ms. Jonas first husband returned to Hungary in 2002 and they
    divorced. Ms. Jonas and Mr. Pacitto commenced a relationship. She moved into
    his home. The parties entered into a Cohabitation Agreement on January 15
th
,
    2003, in which they waived any entitlement to each others property, owned
    either prior to, or purchased during, their cohabitation. This Agreement was
    silent on the issue of support.

The Marriage Contract

[9]

The parties married on August 15
th
, 2003. The Marriage
    Contract was dated August 6
th
, 2003. The parties provided different
    versions of how the Marriage Contract came into existence.

[10]

Ms.
    Jonas testified that, as the wedding day approached, she was still a refugee
    claimant, with an appeal outstanding. On August 3
rd
or 4
th
,
    2003, Mr. Pacittos daughter, Clara, presented the Marriage Contract to Ms.
    Jonas. Ms. Jonas testified that she signed the Marriage Contract that day in
    front of Mr. Pacitto and Clara in the matrimonial home. Nobody else was with
    them. Ms. Jonas said that Mr. Pacitto and Clara told her that, if she did not
    sign the document, there would be no wedding. According to Ms. Jonas, Clara
    further implied that Ms. Jonas would have to return to Hungary if she did not
    sign.

[11]

Ms.
    Jonas testified that, on August 16, 2003, the day after the wedding, she took
    the Marriage Contract to Ms. Judi Simms, a paralegal that she knew from her
    refugee proceedings. Ms. Simms explained the contents of the document and told
    Ms. Jonas that she should not have signed it because it was unfair, but it was
    too late to do anything about it.

[12]

Mr.
    Pacitto and Clara gave different accounts. Mr. Pacitto could not recall signing
    the document, explaining that it was years ago. However, he recalled discussing
    the contract with Ms. Jonas and advising her to get it translated and signed.

[13]

Clara
    testified that the Marriage Contract was not signed in the matrimonial home.
    Instead, on August 6
th
, 2003, she and her father went to see their
    lawyer, Mr. William A. Harrison. Mr. Pacitto signed the Marriage Contract and
    Mr. Harrison witnessed his signature. Mr. Harrison gave copies of the document
    to Clara to have Ms. Jonas sign, with explicit instructions to tell Ms. Jonas that
    she should get independent legal advice before signing the document. Clara subsequently
    gave four copies of the Marriage Contract to Ms. Jonas and told her to take
    them to a lawyer.

Marriage Contract Documentation

[14]

The
    documents relating to the execution of the Marriage Contract support Mr.
    Pacittos position at trial. The Marriage Contract itself, dated August 6
th
,
    2003, was signed by the parties and duly witnessed. Each page bears the
    initials of the parties and their respective witnesses.

[15]

Four
    other documents are relevant to the execution of the Marriage Contract. The
    first document is the Certificate and Affidavit of a Solicitor, Mr. Harrison,
    sworn on August 6
th
, 2003, in which he certified that he provided
    independent legal advice to Mr. Pacitto and that he was a subscribing witness
    to the document.

[16]

The
    second document is the Affidavit of Laszlone Jonas, sworn on August 11
th
,
    2003, in which she states:

1.

I am Laszlone Jonas named in
    the Marriage Contract and hereby decline independent legal advice.

2. I read over the Marriage Contract
    the contents of which were explained to me in the Hungarian Language with all
    the legal implications and ramifications and obligations and rights therein and
    I am satisfied that I fully understand the provisions of the said Marriage
    Contract and the implications therein.

Ms. Simms commissioned this affidavit.

[17]

The
    third document is the Affidavit of Irene Zusmanov, sworn on August 11
th
,
    2003. The affidavit states:

I, Irene Zusmanov, was personally present of (sic) the 11
th
day of August, 2003 as a subscribing witness and did see the annexed Marriage
    Contract executed by Laszlone Jonas and that it appeared to me that she was
    executing the said Marriage Contract of her own volition, without fear,
    threats, compulsion or influence from the man or any other person.

[18]

The
    last document is a Translators Declaration, signed by Anna Maria Fekete and
    dated August 8
th
, 2003, which was annexed to the Marriage Contract.
    The document provides:

I, the undersigned Anna Maria Fekete, hereby attest and swear
    that to my best of knowledge and ability this is a true and accurate
    translation of the original document. I am well acquainted with both the
    English and the Hungarian languages.

[19]

At
    her Questioning before the trial, Ms. Jonas acknowledged that she had met both Ms.
    Zusmanov and Ms. Fekete.  However, in her trial testimony, Ms. Jonas denied any
    knowledge of the person who witnessed her signature, or the person who translated
    the document for her.

Subsequent Events

[20]

After
    the parties married, Mr. Pacitto sponsored Ms. Jonas to become a permanent
    resident, which happened in 2006.

[21]

Ms.
    Jonas contended that she was treated poorly during the marriage. She says Mr.
    Pacitto forced her to work for him, to prepare his meals, clean his house and
    the other houses he rented out, as well as to generally help him around his
    properties. Mr. Pacitto denied any such exploitation.

[22]

The
    parties separated and reconciled three times during their marriage. The first
    time they reconciled, on December 10
th
, 2005, they entered into an
    agreement whereby Ms. Jonas would receive a monthly sum of money and a promise
    that, if Mr. Pacitto passed away while they were together, she would receive
    $50,000. After the next two reconciliations (which occurred on February 4
th
,
    2012 and March 5
th
, 2015), the quantum of the bequest increased to
    $100,000, and then to $200,000. There were competing accounts of how Ms. Jonas
    and Mr. Pacitto reached these terms each time; however, these agreements
    increasingly accrued to Ms. Jonas benefit.

The Trial Judges Findings

[23]

The
    trial judge provided Reasons for Decision in which he thoroughly examined the
    circumstances surrounding the execution of the Marriage Contract. Given the
    competing accounts between Ms. Jonas, on the one hand, and Mr. Pacitto and
    Clara, on the other, he was required to make credibility findings.

[24]

The
    trial judge provided detailed reasons for rejecting Ms. Jonas evidence on
    major issues. He relied on: inconsistencies between Ms. Jonas trial evidence and
    her testimony at Questioning; the Marriage Contract and accompanying execution
    documents; and Ms. Jonas failure to call witnesses that were critical to her
    account (i.e., Ms. Simms, Ms. Zusamanov, and Ms. Fekete).

[25]

The
    trial judge made the following critical findings. He found that Ms. Jonas
    signed the Marriage Contract at the lawyers office where Ms. Simms worked as a
    paralegal. Someone from the same law office translated the document for her and
    another person properly witnessed it. He rejected Ms. Jonas evidence that she
    signed the Marriage Contract at the family residence.

[26]

The
    trial judge found that Ms. Jonas signed the Marriage Contract before the
    wedding, not afterwards. He accepted that Ms. Jonas was told that, if she did
    not sign the contract, there would be no wedding. However, based on Ms. Jonas
    own testimony, she was indifferent about returning to Hungary.

[27]

In
    terms of the lack of independent legal advice, the trial judge made the
    following finding, at para. 118:

On an assessment of all of the evidence placed before this
    court, it is my finding that although the applicant did not see a lawyer that
    was a choice she chose to make Judi Simms was an employee of a law firm. She
    was known to the applicant. Her advice, as a paralegal was that the contract
    should not be signed as it was unfair to the applicant. Based on my evidentiary
    findings, at that point in time, the applicant had options she chose not to
    pursue.

[28]

The
    trial judge rejected Ms. Jonas claim that she received deficient legal advice
    from a paralegal because the matter was outside the scope of the paralegals
    expertise. As the trial judge said at para. 119: There is no evidence that Ms.
    Simms offered any advice other than the contract should not be signed. If
    anything, it should have impressed upon Ms. Jonas that she should seek
    independent legal advice from a lawyer. In any event, the trial judge noted
    that the absence of legal advice will not automatically vitiate a marriage
    contract: see
Dougherty v. Dougherty
, 2008 ONCA 302, 89 O.R. (3d) 760,
    at para. 11. The trial judge found that Ms. Jonas understood what she was
    agreeing to but nevertheless decided to sign the contract and proceed with the
    marriage.

[29]

In
    deciding how much weight to give the Marriage Contract, the trial judge applied
    the framework from the leading case of
Miglin v. Miglin
, 2003 SCC 24, [2003]
    1 S.C.R. 303. He made the following findings, at para. 123:

Despite the fact that neither party was proficient in English,
    I find that the conditions in which the contract was negotiated, while not
    perfect, pass the initial stage of inquire [sic] required by the Supreme Court
    in
Miglin
.
In doing so I am mindful of all of the allegations of
    circumstances of oppression, pressure or other vulnerabilities argued before me
    as well as the absence of negotiations in the execution of the contract
.
    [Emphasis added.]

[30]

The
    trial judge found that, from a property perspective, the Marriage Contract was
    consistent with the objectives of the
Divorce Act
, R.S.C. 1985, c. 3
    (2nd Supp.). Mr. Pacitto wished to protect the property he acquired before Ms.
    Jonas came into his life, for the benefit of himself and his family.  The trial
    judge found that: It is evident that the respondents net wealth has grown
    solely due to the increase in the value of his property but not as a result of
    any efforts from the applicant.

[31]

The
    trial judge made an alternative finding. At para. 146 of his reasons, he said
    that, if he was wrong about the enforceability of the Marriage Contract as it
    relates to property, Mr. Pacitto would owe an equalization payment to Ms. Jonas
    of $2,466,258.17.

[32]

However,
    applying the second stage of the
Miglin
analysis, the trial judge
    decided to award spousal support notwithstanding the waiver in the Marriage
    Contract,  pursuant to s. 33(4) of the
Family Law Act
, R.S.O. 1990, c.
    F.3. He held that Ms. Jonas financial circumstances at the time of trial
    warranted an award of spousal support:
Scheel v. Henkelman
(2001), 52
    O.R. (3d) 1 (C.A.). Although the agreement was fair and reasonable when entered
    into, the trial judge found that the circumstances changed such that it was no
    longer fair. Ms. Jonas was dependent upon Mr. Pacitto for her sustenance, as
    reflected in the reconciliation agreements referred to above.

[33]

Based
    on the filings of the parties, the trial judge determined that Ms. Jonas
    annual income was $15,564, whereas Mr. Pacittos was $24,226. At trial, Ms.
    Jonas submitted that, for the purposes of support, the court should impute an
    annual income of $250,000 to Mr. Pacitto, entitling her to monthly support
    payments of $4,167. This submission was based on an assertion that a
    construction company once owned by Mr. Pacitto generated substantial revenue.
    The trial judge found, at para. 132: There is no evidence, whatsoever, on
    which this court can accept that submission.

[34]

The
    trial judge also rejected Ms. Jonas submission that he should impute additional
    income to Mr. Pacitto from the properties he owned, explaining at para. 133:

The applicants income is $15,564.00 according to her financial
    disclosure submitted to the court. The respondents income is declared at
    $24,226.00. The court heard evidence of rental income received from the rental
    of 174 and 180 Weldrick as well as for a large portion of 176 where the
    respondent resides in the lower or two basements.
This issue was not fully
    explored by the applicant in cross-examination of the respondent. It leaves the
    court in a difficult position of determining the respondents income. The court
    cannot speculate on what the precise income of the respondent is in the absence
    of evidence received at trial. The court also cannot speculate as to the
    expenses of maintaining the realty taxes and mortgages on the subject properties.
[Emphasis added.]

[35]

Based
    on the financial information before him, the trial judge calculated that
    support should be paid indefinitely in the range of $127-$170 per month. This
    resulted in the $40,000 lump sum award to Ms. Jonas.

Discussion

[36]

At
    the oral hearing of the appeal, counsel for Ms. Jonas did not challenge the
    trial judges factual findings, including his credibility assessments. Instead,
    based on the facts as found, she submits that: (1) the Marriage Contract was
    invalid in its entirety; and (2) the quantum of support was inadequate.

(1)

The Marriage Contract

[37]

In
    terms of the validity of the Marriage Contract, Ms. Jonas submits that, on the
    facts before him, the trial judge should have found that she satisfied the
    requirements

to set aside the contract in its entirety. She contends
    that the trial judge failed to give sufficient weight to all relevant
    considerations. In particular, a combination of factors  including her lack of
    proficiency in the English language, the lack of independent legal advice, her economic
    dependency on Mr. Pacitto, and the prospect of having to return to Hungary
    created vulnerabilities that undermined the validity of the Marriage Contract.
    Ms. Jonas further submits that the trial judge failed to take into account the
    fact that the Marriage Contract was not negotiated; instead, it was imposed
    upon her.  Lastly, she contends that the trial judge placed too much weight on
    the execution documents discussed above.

[38]

Ms.
    Jonas position cannot succeed based on the trial judges findings. He
    addressed each of the issues raised on appeal. Ms. Jonas bore the burden of
    proof required to set aside the Marriage Contract and she failed to adduce
    sufficient evidence to satisfy that burden.

[39]

As
    noted above, the trial judge did not find that Ms. Jonas was vulnerable to the
    extent that it undermined the agreement she entered into. He found that she
    made a number of choices, including not to seek legal advice from a lawyer.

[40]

Although
    Ms. Jonas claims that the Marriage Agreement was imposed upon her, there was no
    evidence that she attempted to negotiate a more favourable arrangement. The
    reconciliation agreements that Ms. Jonas entered into with Mr. Pacitto are
    relevant to this issue. Although the validity of these agreements was never in
    issue in this litigation, they did have evidentiary value at trial. As already
    noted above, they were increasingly beneficial to Ms. Jonas. It is some
    evidence that she was capable of asserting her interests with Mr. Pacitto,
    albeit later on in their relationship.

[41]

Ms.
    Jonas places great weight on the fact that she was vulnerable because of her
    refugee status. As noted above, she faced the prospect of deportation if she
    did not get married, and she could not get married without signing the Marriage
    Contract. However, her own evidence undercuts this proposition: she was
    indifferent about returning to Hungary.

[42]

Ms.
    Jonas submits that the trial judge placed too much weight on the documents that
    pertained to the execution of the Marriage Contract. However, this amounts to a
    challenge to the trial judges factual findings.  A trial judges findings
    of fact, including credibility assessments, are entitled to substantial
    deference on appeal, especially in family law cases:
Rados v. Rados
,
2019
    ONCA 627, 30 R.F.L. (8th) 374, at para. 23. In any event, the trial judge
    relied on the documents as he did because Ms. Jonas failed to call (or attempt
    to call) the witnesses that were critical to her position  Ms. Simms, Ms.
    Zusmanov, and Ms. Fekete. As he said, at para. 101: In the absence of any
    other credible evidence, the court must rely upon the documents themselves.

[43]

The
    trial judge was entitled to find that Ms. Jonas declined to obtain legal
    advice, even after Ms. Simms advised her not to sign the Marriage Contract. She
    had been put on notice that the agreement might be unfair but decided not to do
    anything about it. Moreover, the trial judge was entitled to find that the
    document had been translated properly. Indeed, Ms. Jonas acknowledged that she
    was shocked when she learned that she would receive nothing if the marriage ended,
    thereby demonstrating her knowledge of the contents of the document. Ms. Jonas
    said she realized this after the wedding, when it was too late. The trial judge
    rejected this evidence and found that the appellant knew ahead of time.

[44]

The
    trial judges overall finding that Ms. Jonas made a series of choices around
    the time that she signed the Marriage Contract  choices that did not undermine
    the validity of the agreement  is supported by the evidence. I would decline
    to intervene.

(2)

The Spousal Support Order

[45]

Ms.
    Jonas challenges the trial judges award of spousal support as inadequate. She
    disputes the trial judges calculation of income. As part of his declared
    annual income, Mr. Pacitto included a modest sum for rental income. As he did
    at trial, counsel for Ms. Jonas contended that the trial judge ought to have imputed
    further income from Mr. Pacittos properties. As noted in para. 34 above, the
    trial judge addressed this issue, pointing to the paucity of evidence in
    support of this submission.

[46]

Although
    appellate courts should afford deference to the support orders made by trial
    judges (see
Ballanger v. Ballanger
, 2020 ONCA 626, at paras. 22-23),
    the unique circumstances of this case require intervention by this court. The
    trial judges dissatisfaction with the record before him was understandable.
    However, both parties must share the responsibility for this state of affairs.
    Although Ms. Jonas had the onus of demonstrating why income should be imputed
    to Mr. Pacitto, and in what amount, Mr. Pacitto was required to make proper
    disclosure of all sources of income, but failed to do so.

[47]

Section
    6 of the
Spousal Support Guidelines
provides that the starting point
    for determining income for spousal support purposes is the definition of income
    under the
Federal Child Support Guidelines
, SOR/97-175: see
Slongo
    v. Slongo
,
2017 ONCA 272, 137 O.R. (3d) 654, at para. 130. Section
    19(1)(e) of those
Guidelines
provide that the court may impute income
    where the
"spouses property is not reasonably
    utilized to generate income". Although the imputation of income is
    discretionary, in my view, the facts of this case cry out for this to be
    considered.

[48]

In
    his lengthy reasons, the trial judge devoted just a few paragraphs to the issue
    of quantum of spousal support. Quite rightly, he said, at para. 134:
"The court should not be required to generate its own evidence
    upon which to determine a case. This is especially relevant when examining the
    large quantum of support being sought by the applicant." At the same time,
    the onus was on Mr. Pacitto, not Ms. Jonas, to provide complete information
    about his assets, as well as his income.

[49]

In all of the circumstances, it was an error for the trial judge not
    to at least consider imputing additional income to Mr. Pacitto. After all, this
    was a fairly long marriage. Ms. Jonas worked hard on the
    home-front  cooking, cleaning, doing laundry, and cleaning the
    respondent's residential properties  while those
    properties increased significantly in value, to nearly $5 million at the
    time of trial.

[50]

Mr. Pacitto is over 80 years old and may reasonably
    be able to generate significantly more income from his properties, beyond that
    included in his declared income of $24,226. Ms. Jonas, on the other hand, has
    no real employment prospects and an annual income that would appear to be below
    the poverty line:
see
Statistics Canada,
Low income cut-offs
    (LICOs) before and after tax by community size and family size, in constant
    dollars
"
(Table 11-10-0195-01) (Ottawa:
    Statistics Canada, 2020), online: Statistics Canada <
https://doi.org/10.25318/1110019501-eng
>
.
Now aged 60, she
    will be in need of support for many years to come.

[51]

Because
    of the time that has passed between the trial and the hearing of this appeal,
    which has been almost three years, this court is not well-positioned to decide
    this matter afresh. Accordingly, I would remit this case back to the Superior
    Court of Justice for a focused hearing on the imputation of income to Mr. Pacitto
    for the purposes of calculating the award of spousal support. Both parties must
    provide that court with current property evaluations as well as income
    statements.  Given the passage of time, this hearing should take place on an
    expedited basis, subject to local judicial resources.

Conclusion and Disposition

[52]

I
    would allow the appeal in part and remit the case to the Superior Court of
    Justice in accordance with these reasons. Given that success on appeal has been
    divided, I would make no order as to costs.

Released: CWH November 12, 2020

Gary Trotter J.A.

I agree. C.W. Hourigan J.A.

I agree. M. Jamal J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Lochner v. Ontario Civilian Police
    Commission, 2020 ONCA 720

DATE: 20201109

DOCKET: C68058

Pepall, Benotto and Coroza JJ.A.

BETWEEN

Silvano Lochner

Applicant (Appellant)

and

Ontario
    Civilian Police Commission

Respondent (Respondent)

Michael S. Dunn, for the intervener the Attorney General
    of Ontario

No one appearing for the applicant

No one appearing for the respondent

Heard: September 23, 2020 by
    video conference and in writing

Determination pursuant to r. 2.1 of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg.
    194
and on appeal from the judgment of Justice David L. Corbett of
    the Superior Court of Justice, dated February 13, 2020, with reasons reported
    at 2020 ONSC 944.

Pepall J.A.:

Introduction

[1]

On September 9, 2020, the Attorney General of
    Ontario, in its capacity as intervener, wrote to the Registrar, requesting that
    Mr. Lochners appeal be referred to the court for determination pursuant to r.
    2.1 of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194,
and that it be dismissed as frivolous,
    vexatious, and an abuse of process. This was in furtherance of an endorsement
    of Strathy C.J.O., dated September 9, 2020, directing that notice be given to
    Mr. Lochner and that the r. 2.1 matter be heard before the appeal, or in such
    manner as the panel may direct. The Attorney General provided Mr. Lochner and
    the Ontario Civilian Police Commission with notice. The Commission advised in
    writing that it would not be filing any materials and that it would not be
    appearing as it had no submissions to make to this court.

[2]

In response to the r. 2.1 request, Mr. Lochner
    provided extensive written submissions in several packages for the courts consideration.
    He advised the Registrar that he would not be available to participate in the
    video conference on September 23, 2020, the day scheduled for the r. 2.1 matter
    and the appeal.

[3]

On September 23, Mr. Lochner did not appear. The
    panel stated that it was granting a r. 2.1 order and dismissing his appeal as
    being frivolous, vexatious, and an abuse of process with brief reasons to
    follow. To the extent there are any departures from the procedures described in
    r. 2.1, they are so ordered pursuant to r. 2.1.01(3).

Background

[4]

In these reasons, I do not propose to recite all
    of the numerous frivolous and vexatious proceedings taken by Mr. Lochner since
    2006, which have been detailed by numerous judges, including Corbett J. It is
    his order refusing Mr. Lochners fourth application for
mandamus
that Mr.
    Lochner seeks to appeal. However, some factual background is required.

[5]

The provenance of all of these proceedings is an
    incident that occurred in August 2006, when members of the Toronto Police
    Emergency Task Force attended the Lochner family residence to execute a warrant
    for the arrest of the appellant, Mr. Lochner. Most unfortunately, Mr. Lochners
    intellectually-disabled adult brother, George Lochner, was mistaken for the
    appellant, and in the course of subduing George, the police tasered him. Paramedics
    attended, they took George to the hospital, and he was released that same night.

[6]

Mr. Lochner and other family members sought
    civil and criminal redress for this incident. The Public Guardian and Trustee
    (PGT)  which was appointed to act as litigation guardian for George in the
    civil action  settled the action, over the objections of the Lochner family. Twice,
    the Lochner family applied unsuccessfully to have the PGT removed as Georges
    litigation guardian.

[7]

The Lochner family and the appellant then pursued
    other avenues. When the Lochner family unsuccessfully sought to have criminal
    charges brought against the officers involved in the tasering, they then sought
    to prosecute privately, again unsuccessfully. The within appeal concerns Mr.
    Lochners fourth attempt to commence a private prosecution arising out of the
    same 2006 incident.

[8]

On September 19, 2019, under s. 685 of the
Criminal
    Code
, R.S.C. 1985, c. C-46, this court dismissed a third appeal of Mr.
    Lochner from a refusal to grant
mandamus
, finding that the appeal was
    frivolous and vexatious:
Lochner v. Ontario (Attorney General)
, 2019
    ONCA 730. This court summarized his three attempts to pursue a private
    prosecution.  It concluded, at paras. 20-21, that the notice of appeal revealed
    no arguable grounds of appeal, and that the appeal lacked merit and appeared
    to have been initiated in pursuit of an unyielding course of harassment
    extending for more than a decade: at para. 23.

[9]

Mr. Lochner has sought to compel the respondent,
    the Ontario Civilian Police Commission, to commence an investigation, but these
    efforts have also been unsuccessful.

[10]

On May 17, 2019, the appellant was convicted by Corbett J. of
    contempt of court for his improper conduct during the hearing:
Lochner v.
    Ontario Civilian Police Commission
, 2019 ONSC 3048 (Div. Ct.). Justice Corbett
    wrote:

Mr Lochner has made it clear that he will not
    cease his efforts to litigate issues relating to the tasering of his brother in
    2006 unless he is restrained from so doing.  His four faxes are focused on
    how he believes his claims are meritorious and that there are still avenues
    available for him to pursue these issues in court.  His intemperate
    statements about jurists who disagree with him are eloquent evidence that he
    will continue, unabated, without the constraints of rationality or civility to
    constrain his behaviour.  Wantonly accusing a judge of impropriety because
    he disagrees with the judges decision is a clear hallmark of an irrational
    litigant, one who, in this case, is ungovernable even in the face of an
    immediate risk of incarceration.  Even a cursory review of past decisions
    related to these matters makes it clear that Mr Lochner has been carrying on as
    an unreasonable, ungovernable litigant for quite some time.  And it is
    time for that to end.

[11]

Justice Corbett also made a restraining order
    against Mr. Lochner. He was prohibited from commencing or pursuing in the
    courts of Ontario (including the Small Claims Court, the Superior Court of
    Justice, and the Divisional Court, but not including the Court of Appeal) (i)
    any proceeding against the Ontario Civilian Police Commission, or (ii) any
    proceeding in which he seeks relief of any kind in relation to the police
    incident in 2006 involving his brother, George Lochner, without first obtaining
    permission from the case management judge: at para. 15.
[1]
Justice Corbett appointed
    himself as the case management judge.

[12]

As mentioned, on September 23, 2019, this court
    foreclosed Mr. Lochners third attempt at a private prosecution. On December
    23, 2019, Mr. Lochner attempted to commence a fourth private prosecution in the
    Ontario Court of Justice. This was stayed, and Mr. Lochner sought leave to
    commence a new application for
mandamus
. Justice Corbett denied this
    request on February 13, 2020.
[2]
He concluded:

This Request was frivolous. I have provided
    these reasons so that there will be a record available publicly of this
    frivolous request.  However, there is a limit to the time and resources that
    the court should devote to frivolous proceedings brought by Mr. Lochner.  Mr.
    Lochner should understand that future requests of this nature will likely be
    decided peremptorily.

[13]

It is this order that is the subject matter of
    Mr. Lochners appeal before this court.

[14]

On July 20, 2020, Mr. Lochner sought permission
    once more to commence a private prosecution. On July 28, 2020, Corbett J.
    denied this request, determining that, like the request he had denied on
    February 13, 2020, it was vexatious:
Lochner v. Ontario Civilian Police
    Commission
, 2020 ONSC 4606 (Div. Ct.), at para. 6.

Rule 2.1

[15]

Rule 2.1.01(1) provides that the court may, on
    its own initiative, stay or dismiss a proceeding if the proceeding appears on
    its face to be frivolous or vexatious or otherwise an abuse of the process of
    the court. The determination may be made in a summary manner and on the basis
    of written materials.

[16]

Rule 2.1 responds to an ever-increasing problem
    in the courts: vexatious and abusive litigants. Justice Yves-Marie Morissette
    of the Court of Appeal of Quebec addressed the challenges associated with
    vexatious litigants in his 2019 article entitled Querulous and Vexatious
    Litigants as a Disorder of a Modern Legal System, 24 Can. Crim. L. Rev. 265. He
    introduces his article, at pp. 265-66, by explaining the problem that such
    litigants pose to other parties and all stakeholders in the administration of
    justice:

Some self-represented litigants never let go.
    Not only do they resist any reasonable attempt to settle a dispute
    consensually, but they also forever refuse to accept defeat in the courts. They
    continue to fight on, in any available forum, until they are forced to stop.
    Whatever the initial dispute that they had with an employer, a neighbour, an
    ex-spouse, a relative, a government agency, or any other person or institution,
    there is a strong probability that this dispute will have evolved and
    eventually degenerated into an all-out war fought on every front, at first in a
    tribunal or a court of law, against one or several parties, and later against
    those parties' lawyers, the lawyers' partners, their professional regulators or
    their insurers, the court personnel, judges in person, or even the judicial
    council if its decisions are subject to judicial review. Whenever possible,
    they will seek leave to appeal to the Supreme Court of Canada.

Among the many self-represented parties, these
    abnormally belligerent and obdurate litigants only account for a very small
    percentage of parties who go to court in person and without counsel. But they
    are a real and threatening burden for other parties and for all stakeholders in
    the administration of justice (be they the parties themselves or lawyers,
    judges, court administrators and court personnel). The situation of the parties
    targeted in the initial dispute is usually the worst. Apart from the often
    considerable legal and professional costs they may have to incur because of
    lengthy, repetitious and spurious proceedings, they may also develop a sense of
    despair at the ineffectiveness of the legal system.

[17]

In describing appellate experience, he writes,
    at p. 285, that appellate courts are not designed to cope with the burden
    imposed by vexatious litigants:

[Appellate jurisdictions] seem to be designed
    and staffed (perhaps understandably so) on the assumption that they will only
    deal with serious disputes and appeals deserving to be heard. But vexatious
    litigants, who
always
exercise any
de plano
right of appeal they
    may have, and who
always
seek leave to appeal when such leave is
    required, are frequent flyers in these courts and are present in a higher
    proportion on appeal than in first instance. [Emphasis in original.]

[18]

Vexatious litigants are a drain on our system of
    justice. In addition to being a burden on the opposing parties, they are a
    burden on the judiciary and court personnel. At least the judiciary has
    mechanisms to attempt to address the conduct of vexatious litigants, but court
    personnel are ill-equipped to do anything when faced with a barrage of telephone
    calls, emails, and other communications frequently characterized by incendiary
    and rude remarks. The cost and time incurred by opposing parties is significant,
    and adverse costs awards frequently cannot be relied upon to discourage future
    comparable behaviour.

[19]

In his article, Morrisette J.A., at pp. 274-76, lists
    the signs of a querulous disposition as follows:

·

the litigant is virtually always
    self-represented

·

the litigants attitude is characterized by
    marked obduracy

·

persistent reiteration and amplification

·

arguments are often unintelligible or highly
    confused

·

written submissions contain much that is not
    legally relevant to the dispute

·

the style of written submissions is quite
    distinctive (opaque and long written materials, faulty terminology and syntax,
    emphatic tone reinforced by different fonts and styles, multiple appendices and
    supporting documents, and the expression of a keen desire for moral
    vindication)

·

marked lack of due diligence in the advancement
    of claims

·

exhaustion of all rights of review, appeal, or
    revocation any time there is an adverse judgment

·

unsustainable allegations and gratuitous
    complaints against members of the legal profession, and

·

a cessation of proceedings only when the
    litigant cannot pay legal fees and costs.

[20]

Similarly, in
Gao v. Ontario (Workplace
    Safety and Insurance Board)
, 2014 ONSC 6497, 37 C.L.R. (4th) 7, at paras.
    14-15, Myers J. described the characteristics typically found in vexatious
    litigants:

·

bringing multiple proceedings to try to
    re-determine already determined issues

·

rolling forward grounds and issues from prior
    proceedings

·

persistent pursuit of unsuccessful appeals

·

failure to pay costs awards

·

bringing proceedings for a purpose other than
    the assertion of legitimate rights

·

bringing proceedings where no reasonable person
    would expect to obtain the relief sought, and

·

inappropriate submissions in both form (curious
    formatting, many pages, odd or irrelevant attachments, multiple methods of
    emphasis, numerous foot and marginal notes) and content (rambling discourse,
    rhetorical questions, repeated misuse of technical terms, references to self in
    the third person, inappropriately ingratiating statements, ultimatums, and threats).

Gao
was approved by this court in
Scaduto v. The Law Society of Upper Canada
,
    2015 ONCA 733, 343 O.A.C. 87, at para. 9, leave to appeal refused, [2015]
    S.C.C.A. No. 488;
Khan v. Krylov & Company LLP,
2017 ONCA 625, 138
    O.R. (3d) 581, at para. 13; and
Rallis v. Myers
, 2019 ONCA 437, at
    para. 5.

[21]

It is important for the courts to be gatekeepers
    of our system of justice. Abusive litigants should be screened out of the
    system so that parties with true justiciable disputes may have them adjudicated
    by the courts.

[22]

That said, two points merit special emphasis.
    First, not all self-represented parties are vexatious litigants. Second, even a
    vexatious litigant may raise a legitimate issue that justifies consideration by
    a court. It is in part for this reason that r. 2.1.01 is intended for the
    clearest of cases.

Mr. Lochners Case

[23]

Mr. Lochners is the clearest of cases. On its
    face, Mr. Lochners proceeding and the appeal of Corbett J.s order are frivolous,
    vexatious, and an abuse of process. They reflect re-litigation, the rehashing
    of the same complaints, and spurious inflammatory allegations. And, they have
    no prospect of success.

[24]

Mr. Lochner exhibits many of the features of
    vexatious litigants, as described by Morrisette J.A. and Myers J. Significantly,
    he has repeated substantially similar allegations in multiple, unsuccessful
    proceedings and makes wide-ranging but unsustainable allegations against a wide
    range of individuals.

[25]

I would conclude that a r. 2.1 order is
    appropriate in the circumstances, and I would further dismiss his appeal as
    frivolous, vexatious, and an abuse of process.

[26]

The question then becomes what terms, if any,
    should be added to this order to ensure that, on the one hand, Mr. Lochner is
    not forever barred from accessing the courts, but on the other, the people who
    work in the court system, be they judges, opposing counsel, or court personnel,
    are not subjected to abusive conduct, regular and sometimes daily
    communications, and frivolous motions. Terms of such orders often include a
    provision that the party be prohibited from making any further motions relating
    to the appeal unless leave of a judge or panel of this court is obtained. (See:
Simpson v. The Chartered Professional Accountants of Ontario
, 2016
    ONCA 806 at para. 49 and
Midland Resources Holding Limited v. Shtaif
,
    2018 ONCA 743, at para. 14). As we have seen, however, a term requiring leave
    has not served to discourage Mr. Lochner.

[27]

Although a statutory court, this court has
    implicit powers that derive from its power to control its own process:
R.
    v. Cunningham
, 2010 SCC 10, [2010] 1 S.C.R. 331, at para. 19;
Marché DAlimentation
    Denis Thériault Ltée v. Giant Tiger Stores Limited
, 2007 ONCA 695, 87 O.R.
    (3d) 660, at para 24; and
R. v. Church of Scientology
(1986), 25
    C.C.C. (3d) 149 (Ont. C.A.), at pp. 150-151. The courts powers extend to all
    powers that are reasonably necessary to accomplish its mandate or, stated
    differently, the powers necessary to perform its intended functions:
R.
    v. 974649 Ontario Inc.
, 2001 SCC 81, [2001] 3 S.C.R. 575, at para. 70. Thus,
    clearly this court may control its own process. The question here is the extent
    of this power.

[28]

The challenge presented by this exceptional case
    is how to strike an effective balance between protecting our system of justice and
    its stakeholders from abuse and frivolous proceedings and allowing access to
    Mr. Lochner for any future
arguable
proceedings.

[29]

One possible solution would be to require that Mr.
    Lochner access this court only through a lawyer.

[30]

In
Jonsson v. Lymer
, 2020 ABCA 167, 7
    Alta. L.R. (7th) 146, the Alberta Court of Appeal wrote that if the superior courts
    power to control its own process authorizes requiring a litigant to access the
    courts only through a lawyer, it should exercise this power sparingly.  Slatter
    J.A. concluded that the superior court had the power to prevent abuse of its
    processes but it should be used sparingly and only when statutory authority is
    inadequate: at paras. 29  33, and 42.  In that case, the court concluded that
    a vexatious litigant order ought not to have been granted.

[31]

Recently, in
Uber Technologies Inc. v.
    Heller
, 2020 SCC 16, 447 D.L.R. (4th) 179, albeit in a different context, Brown
    J. (concurring) cited
Jonsson
stating, at para. 111, that the rule of
    law requires that citizens have access to a venue where they can hold one
    another to account.  He wrote: Access to civil justice is paramount to the
    public legitimacy of the law and the legitimacy of the judiciary as the
    institution of the state that expounds and applies the law.

[32]

The ability to access justice is a foundational common
    law tradition.  In recent decades, the mantra of access to justice has gained
    considerable traction as the costs associated with litigation have skyrocketed
    making litigation an unrealistic means of dispute resolution for many if not most
    Ontarians.  This has evolved into a do-it-yourself litigation regime where
    guidance and instructions for self-represented parties have frequently been emphasized
    over the provision of legal advice and counsel for the self-represented party. Has
    the justice system placed too much emphasis on helping parties represent
    themselves rather than ensuring that parties are represented by counsel? Do-it-yourself
    manuals may give an impression of access to justice, but this guidance is an
    inadequate replacement for proper legal representation.  In his 2020 Opening of
    the Courts speech, Strathy C.J.O. stated:

In order to be fair, and to avoid unreasonable
    delay, particularly but not exclusively where the state is a litigant,
both
    parties must have competent legal representation
. This speaks to the urgent
    need for a significant re-investment in legal aid, including duty counsel and
    legal clinics and support for pro bono services. It is, quite frankly, a false
    economy to think that cutting these vital services saves money. When litigants
    are unrepresented and unsupported, the justice system slows to a crawl,
    valuable resources are drained, and other cases are held back. More important,
    the most vulnerable members of our society, those whom our justice system
    purports to protect, are further victimized because their playing field is
    uneven: Opening of the Courts of Ontario for 2020.
[3]
[Emphasis added.]

[33]

This vexing issue does not need to be resolved
    for the purposes of this case.  However, requiring a litigant to be represented
    by a lawyer in a case such as this ensures real and effective access to the
    courts. It also serves to enhance the justice experience for other
    stakeholders, most notably opposing parties. Lastly, it is not without
    parallel.  For example, although for different reasons, the Rules of Civil
    Procedure require that a corporation be represented by counsel, absent leave of
    the court: r.15.01(2).

[34]

Mr. Lochner is what I would describe as a
    lifestyle litigator; in other words, litigating has become his way of life. As this
    court observed, he has pursued an unyielding course of harassment extending
    for more than a decade. This calls for exceptional relief. Accordingly, in
    these extraordinary circumstances, I would order that Mr. Lochner be prohibited
    from making any further motions in this court in relation to this proceeding unless
    he is represented by a lawyer, his materials have been prepared and filed by a
    lawyer, and leave of a judge of this court has been obtained by a lawyer acting
    on his behalf. The counter staff may communicate with a lawyer acting for Mr.
    Lochner but should refuse to accept materials from, or communicate with, Mr.
    Lochner himself.

[35]

Requiring Mr. Lochner to access this court through
    a lawyer is within this courts power to control its own process. Doing so is
    justified and the only meaningful solution to the challenges presented by Mr. Lochner.
    These are exceptional circumstances.

Disposition

[36]

For these reasons, I would dismiss Mr. Lochners
    appeal as frivolous, vexatious, and an abuse of process pursuant to r. 2.1 and
    further order that Mr. Lochner be prohibited from making any further motions in
    relation to this proceeding unless he is represented by a lawyer, his materials
    have been prepared and filed by a lawyer, and leave of a judge of this court
    has been obtained by a lawyer acting on his behalf. The counter staff may
    communicate with a lawyer acting for Mr. Lochner but should refuse to accept
    materials from, or communicate with, Mr. Lochner himself.

Released: November 9, 2020 (S.E.P.)

S.E. Pepall
    J.A.

I agree. M.L.
    Benotto J.A.

I agree. S.
    Coroza J.A.

[1]
Justice Corbett subsequently confirmed that this encompasses
    proceedings in the Ontario Court of Justice and those before a Justice of the
    Peace

[2]
In his reasons, Corbett J. cited some of the decided cases relating
    to Mr. Lochner:

Lochner
    v. Toronto Police Services Board
, 2013 ONSC
    4387,
Lochner v. Toronto Police Services
    Board
,
2014 ONSC 2137
,
Lochner v. Toronto Police Services Board
,
2014 ONSC 3563
,
Lochner v. Toronto Police Services Board
,
2013 ONSC 2137
,
Lochner v. Callanan
,
2015 ONSC 617
, Lochner v. Callanan
,
2015 ONSC 2464
,
Lochner v. Callanan
,
2015 ONSC 3628
,
Lochner v. Callanan
,
2015 ONSC 4386
,
Lochner v. Callanan
,
2015 ONSC 5598
,
Lochner v. Toronto (Police Services)
,
2015 ONCA 626
,
Lochner v. Toronto (Police Services)
,
2015 ONCA 703
,
Lochner v. Callanan
,
2016 ONSC 591
,
Lochner v. Callanan
,
2016 ONSC 1614
,
Lochner v. Callanan
,
2016 ONSC 1705
,
Lochner v. Callanan
,
2016 ONSC 3379
,
Lochner v. Callanan
,
2016 ONSC 4136
,
Lochner v. Callanan
,
2016 ONSC 4561
,
Lochner v. Callanan
,
2016 ONSC 5384
,
R. v. Lochner
,
2017 ONSC 1235
,
Lochner v. Callanan
,
2016 ONCA 283
,
Lochner v. AG Ontario
,
2018 ONSC 2994
,
AG Ontario. v. Lochner
,
2018 ONCA 910
,
Lochner v. AG Ontario
,
2019 ONCA 52
.

[3]
Speech delivered at the Court of Appeal for Ontario, September 22,
    2020, online: Court of Appeal for Ontario
    <ontariocourts.ca/coa/en/ps/ocs/ocs.htm>.


COURT
    OF APPEAL FOR ONTARIO

CITATION: Metropolitan Toronto Condominium
    Corporation No. 590 v. The Registered Owners and Mortgagees of Metropolitan
    Toronto Condominium Corporation No. 590, 2020 ONCA 749

DATE: 20201124

DOCKET: C67385

Fairburn A.C.J.O., Juriansz and
    Nordheimer JJ.A.

BETWEEN

Metropolitan
    Toronto Condominium Corporation No. 590

Applicant (Appellant)

and

The
    Registered Owners and Mortgagees of Metropolitan Toronto Condominium
    Corporation No. 590

Respondents (Respondents)

Eli S. Lederman and Kelly Hayden, for
    the appellant

Mark H. Arnold, for the respondents

Heard: written submissions

On appeal from the judgment of Justice Andrew
    A. Sanfilippo of the Superior Court of Justice dated July 25, 2019, with
    reasons reported at 2019 ONSC 4484.

ADDENDUM

[1]

On July 21, 2020, we released our decision in
    this matter in which we allowed the appeal, set aside the order below, and, in
    its place, granted an order amending the Declaration in a manner to be agreed upon
    by the parties, consistent with our reasons, or further order of the court. We
    suggested in our reasons specific wording to amend s. 22 of the Declaration to
    address the issue that was before us, but we left it to the parties to either
    accept that wording, agree on alternative wording, or make further submissions.
    The parties were unable to agree on the wording of any amendment to the
    Declaration, so they filed supplementary written submissions on the issue.

[2]

The appellant is content with the wording of the
    proposed amendment to the Declaration that we set out in para. 32 of our
    reasons. The respondents are not. They suggest different wording and submit
    that s. 23 of the Declaration needs to be amended as well.

[3]

We do not agree with the respondents submissions.
    What the respondents are attempting to do is to reargue the issues that we
    decided through our reasons. In particular, the respondents fail to acknowledge
    that there is a difference between the duty to repair and maintain after damage,
    and the duty to repair and maintain after normal wear and tear. It is the
    difference between those two duties that underlay the dispute between the parties,
    and it was the difference between those two duties that was not clearly
    delineated in the Declaration. Our proposed amendment to the wording of s. 22
    of the Declaration was intended to address that lack of clarity in order to
    resolve the respective responsibilities of the parties going forward. The
    amendments proposed by the respondents fail to achieve that fundamental goal.

[4]

The respondents also say that para. 24 of the
    courts earlier reasons should be removed. They say that the determination
    about the cause of the damage and the failure of the chimney flues was not
    before this court on appeal. This is a new issue that is being raised by the
    respondents. It was not a matter upon which the court asked for further
    submissions nor did the respondents bring any separate motion for such relief.
    In any event, the wording of para. 24 does not rule on the issue as the
    respondents suggest that it does. There was no dispute, on the record before us,
    that the damage to the chimney flues was not caused by some singular event but,
    rather, arose from the passage of time. That is all that para. 24 of our
    earlier reasons records. Consequently, we do not entertain the respondents
    request in this regard.

[5]

The formal order of the court will reflect the amended
    wording to s. 22 of the Declaration as set out in para. 32 of the courts
    earlier reasons.

Fairburn
    A.C.J.O.
R.G. Juriansz J.A.
I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Mughal v. Bama Inc., 2020 ONCA 704

DATE: 20201104

DOCKET: C67351

Roberts, Trotter and Thorburn
    JJ.A.

BETWEEN

Nadeem Ahmed Mughal also known
    as Nadeem Mughal

Plaintiff (Respondent)

and

Bama Inc., Abdul Raheem Qureshi, ET Zone Supplies Inc., Zainab
    Sayeed

Noman, Badar Sohail Khan,
Mansoor Ahmed Khan
and

Muhammad
    Noman Yusuf also known as Muhammad Yusuf

Defendants (
Appellant
)

Jonathan Shulman, for the appellant,
    Mansoor Ahmed Khan

John S. Contini, for the respondent,
    Nadeem Ahmed Mughal

Heard: October 28, 2020 by
    video conference

On appeal from
    the order of Justice Lucy K. McSweeney of the Superior Court of Justice, dated
    July 26, 2019, with reasons reported at 2019 ONSC 4504 and from the costs
    order, dated February 24, 2020.

REASONS FOR DECISION

[1]

The appellant, Mansoor Ahmed Khan (MA Khan),
    appeals from the judgment against him for civil conspiracy to cause economic
    injury to the respondent and the award of substantial indemnity costs. He asks
    that the respondents action be dismissed. In the alternative, he asks that the
    matter be remitted to the Superior Court for a retrial.

[2]

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

Preliminary Motion to Adjourn

[3]

At the outset of this appeal hearing, counsel
    for MA Khan sought to adjourn the appeal. He claimed that approximately one
    month ago, he discovered that one of the co-defendants, Abdul Raheem Qureshi
    who has also appealed this judgment, will bring a motion to admit fresh
    evidence on his appeal.

[4]

Although the relationship between Mr. Qureshis
    application for fresh evidence and the present appeal was not made exactly
    clear, counsel argued the fresh evidence pertains to the domain name for Bama
    Inc. He also suggested that his client might seek to raise an allegation of
    ineffective assistance of counsel.

[5]

Counsel for MA Khan advised the court that he
    was in possession of a copy of what we understood to be the proposed notice of
    motion and affidavit of Mr. Qureshi, but did not provide any of the
    documents to which he made reference nor did he advise that he would be seeking
    an adjournment until the commencement of the hearing.

[6]

Counsel provided no explanation for the failure
    to address these issues before the commencement of the appeal hearing, why the
    evidence could not have been adduced earlier, or why he had never sought to
    join this appeal with Mr. Qureshis appeal. In the absence of any
    particulars or fresh evidence of the new allegations, we are unable to discern
    how MA Khans appeal could be affected.

[7]

Moreover, we agree the respondent would suffer
    non-compensable prejudice because of the requested adjournment. He used his
    life savings and borrowed money to invest in Bama Inc. because of Mr. Qureshis
    fraudulent misrepresentations and the fraudulent conspiracy carried out by Mr.
    Qureshi, MA Khan and Bama Inc., all of which he lost. He is paying interest on
    the money he borrowed. There was no offer to pay the costs thrown away.

[8]

For these reasons, the adjournment was refused,
    and the appeal was argued on its merits.

Brief Factual Background

[9]

The respondent renewed his friendship with Mr.
    Qureshi, his old friend from Pakistan. Mr. Qureshi offered the respondent an opportunity
    to invest his retirement savings and funds from a line of credit in a business
    venture.

[10]

The respondent thought he was investing in Bama
    Inc., which Mr. Qureshi told him was an active and successful electrical supply
    company. Bama Inc. had three directors: Mr. Qureshi, MA Khan and Badar Sohail
    Khan
[1]
.
    In fact, Bama Inc. was a shell company.

[11]

On November 28, 2014, the respondent transferred
    $60,000 into the business account of Bama Inc. On December 1, 2014, Mr. Qureshi
    transferred this amount into the ET Zone account.

[12]

On June 4, 2015, the respondent transferred
    $50,000 from his line of credit at CIBC to Mr. Qureshi personally.

[13]

On June 10, 2015, upon request made by Mr.
    Qureshi, the respondent transferred a further $100,000 payable to Bama Inc.,
    after Mr. Qureshi falsely promised the respondent a bank guarantee to secure
    the funds. This amount was then transferred to the ET Zone account.

[14]

Throughout this time, the respondent received
    two profit payments from his own funds: one of $4,000 on March 16, 2015 and
    another of $3,500 on July 2, 2015.

[15]

Unknown to the respondent until after the
    transfers, most of his money was transferred into a struggling company called
    ET Zone Supply Inc. Mr. Qureshi was ET Zones Business Development Manager.

[16]

The respondent lost his $210,000 investment.

[17]

After a three-day trial, the trial judge found
    MA Khan was liable (along with Mr. Qureshi and Bama Inc.) for conspiracy to
    cause economic injury to the respondent.

Issues

[18]

MA Khans grounds of appeal can be fairly summarized
    as follows:

1.

The trial judge applied the wrong legal test for
    and misapprehended the evidence to find he committed the tort of conspiracy to
    injure the respondent;

2.

The trial judge erred in awarding substantial
    indemnity costs against him because of her inconsistent findings concerning
    civil fraud.

[19]

At the hearing of the appeal, counsel for MA
    Khan attempted to argue the new ground of ineffective assistance of counsel. We
    did not permit him to do so. The respondent understandably objected. MA Khan
    had not raised this issue in his notice or supplementary notice of appeal nor
    was there any evidentiary foundation for it in the appeal record.

Analysis

(1)

The trial judge made no error in finding that MA
    Khan conspired to cause economic injury to the respondent

[20]

The trial judge applied the correct test for
    establishing civil conspiracy to injure. The test, as set out in
Canada
    Cement Lafarge Ltd. v. British Columbia Lightweight Aggregate Ltd.
, [1983]
    1 S.C.R. 452, 145 D.L.R. (3d) 385, was cited by this court in
Agribrands
    Purina Canada Inc. v. Kasamekas
, 2011 ONCA 460, 106 O.R. (3d) 427, to
    which the trial judge referred.

[21]

The tort of conspiracy to injure is recognized
    where:

(1)

Whether
    the means used by the defendants are lawful or unlawful, the predominant
    purpose of the defendants' conduct is to cause injury to the plaintiff; or,

(2)

Where the
    conduct of the defendants is unlawful, the conduct is directed towards the plaintiff
    (alone or together with others), and the defendants should know in the
    circumstances that injury to the respondent is likely to and does result in
    loss to the plaintiff.

[22]

With respect to the second factor, it is not
    necessary that the predominant purpose of the defendants' conduct be to cause
    injury to the plaintiff but there must be a constructive intent derived from
    the fact that the defendants should have known that injury to the respondent
    would ensue and damage would be suffered by the plaintiff:
Agribrands
,
    at para. 24.

[23]

Applying these factors, the trial judge made the
    following findings in support of her conclusion that MA Khan conspired with Mr.
    Qureshi and Bama Inc. to cause economic injury to the respondent:

a.

MA Khan knew of ET Zone, he and Mr. Qureshi had
    both invested in ET Zone, and Mr. Qureshi was working for ET Zone an electric
    supply company.

b.

MA Khan engaged Mr. Qureshi to join Bama Inc.
    because we [ET Zone] may be able to do some business with Bama Inc.,
    although there was no legitimate reason to do so because Bama Inc. was a shell
    corporation whose stated purpose was to provide IT and human resources, not
    electrical supply.

c.

MA Khan arranged for Mr. Qureshi to become the
    third director of Bama Inc. in June 2014 to create a vehicle for indirect
    investment into ET Zone.

d.

Bama Inc. was a shell company with no operations
    so there was no reason to create a new corporate account for dispersal of
    profit.

e.

MA Khan and Mr. Qureshi are two of only three
    directors of Bama Inc.

f.

MA Khan was the director of Bama Inc. with IT
    experience. His former address and his wifes phone number were on the Bama Inc.
    websites main pages and he did not deny the existence of a website for the
    shell company that purported to be a thriving electrical company.

g.

Since he was the Bama Inc. director with IT
    experience, the trial judge was satisfied on a balance of probabilities that MA
    Khan was involved in creating the fake website showing that Bama Inc. was a
    thriving electrical supply company when it was not.

h.

Mr. Qureshi and MA Khan opened a Bama Inc.
    account on November 21, 2014 by depositing $222. Thereafter, that account was
    used to deposit monies received from the respondent.

i.

After the respondent deposited money to the Bama
    Inc. account, the money was moved to the ET Zone without notice to the
    respondent.

j.

MA Khan knew or was willfully blind as to where
    the deposits into the Bama Inc. account came from, as they were not flowing in
    as profits to be dispersed from ET Zone.

k.

MA Khan withdrew thousands of dollars from the
    Bama Inc. account for his personal purposes.

l.

Despite MA Khans testimony at trial that we
    [the investors in ET Zone] all had individual agreements with ET Zone, he did
    not produce his own investment agreement to explain the amounts withdrawn for
    his personal purposes from the Bama Inc. account once the respondents money
    was put into it.

[24]

The trial judge concluded that although MA Khan
    did not personally make specific misrepresentations to the respondent nor was
    he present when the misrepresentations were made, he was nonetheless involved
    in the conspiracy to injure the respondent and that the Bama Inc. account was
    used to mislead the [respondent] into believing his funds were being invested
    in Bama Inc. At para. 62, the trial judge concluded:

I find on a balance of probabilities that MA
    Khan conspired with Qureshi to obtain money for ET Zone through Bama Inc. He
    did so by working with Qureshi to create a corporate presence (bank account and
    website) to support the false impression that Bama Inc. was an active electrical-supply
    business. This misrepresentation was central to the success of the fraud on the
    [Respondent]. It would not have succeeded if MA Khan had not taken steps to
    make Qureshi a director of Bama Inc. Qureshis experience as an engineer in the
    electrical-supply industry was necessary for him to credibly hold himself out
    to the [Respondent] as a director of Bama Inc. as an electrical-supply
    business. It was Qureshi who had that background, not MA Khan. MA Khans
    background is in IT.

[25]

MA Khan submits that the trial judge erred in failing to address
    the fact that there was another email address on Bama Inc.s website and to
    find that this email address proved someone else created the website. We do not
    accept this submission. It was open to the trial judge on the evidence before
    her to find that MA Khan was implicated in the creation of the website. That
    others may have been involved does not invalidate the trial judges finding of
    MA Khans involvement.

[26]

He also argues that the trial judge
    misapprehended the evidence and erred in failing to consider that an amount he
    paid in June 2014 to ET Zone was similar to an amount paid by the respondent to
    Bama Inc. in November 2014. We disagree. The trial judge was clear that MA Khan
    himself had invested money in ET Zone. There was no error; the two payments
    were unrelated.

[27]

The evidence amply supports the trial judges
    conclusion that both MA Khan and Mr. Qureshi were personally liable for
    tortious conduct in conspiring to defraud the respondent. All the elements of
    the tort of conspiracy were made out because:

a.

MA Khan and Mr. Qureshi created the false
    impression that Bama Inc. was an active, successful electrical supply company
    in order to obtain funds to give to ET Zone, where both had invested money;

b.

they obtained funds in the name of Bama Inc.,
    knowing or constructively knowing the respondent was likely to lose his money;

c.

they acted in furtherance of this plan; and

d.

the respondent suffered damages as a result.

[28]

We see no basis for appellate intervention.

(2)

The trial judge made no error in her costs award

[29]

MA Khan argues that the trial judge erred in
    awarding substantial indemnity costs against him in the amount of $133,501.61
    based on civil fraud when she expressly found in her trial judgment that he did
    not commit civil fraud.

[30]

We do not accept this submission.

[31]

While MA Khan was not found liable for civil
    fraud, deceit or conversion, he was found liable for his fraudulent behaviour
    in committing the conspiracy to cause the respondent economic injury. It is
    clearly on this latter basis that the trial judge determined that MA Khan
    should pay the respondents costs on a substantial indemnity basis.

[32]

Cost awards are accorded deference. The
    behaviour of MA Khan, Mr. Qureshi and Bama Inc., as found by the trial
    judge, was egregious and justified the exceptional substantial indemnity scale.
    There is no basis to overturn the costs award.

Disposition

[33]

For these reasons, the appeal is dismissed.

[34]

The respondent is awarded partial indemnity
    costs in the amount of $10,551.48 inclusive of taxes and disbursements.

L.B.
    Roberts J.A.

Gary
    Trotter J.A.

J.A.
    Thorburn J.A.

[1]

The trial judge dismissed the action
against

Badar Sohail Khan for lack of evidence of
    his involvement in the fraud.


COURT OF APPEAL FOR ONTARIO

CITATION: Nelson v. Ontario, 2020 ONCA 751

DATE: 20201130

DOCKET: C68333

Hoy, Brown and Thorburn JJ.A.

BETWEEN

Hentrose
    Nelson

Plaintiff (Appellant)

and

Her Majesty the Queen in Right of Ontario and

David Bulmer, as representative of Association of Management,

Administrative and Professional Crown Employees

Defendants (Respondents)

Ranjan K. Agarwal, for the appellant

J. Thomas Curry, Rebecca Jones and Delna
    Contractor, for the respondent Her Majesty the Queen in Right of Ontario

James K. McDonald and Geetha
    Philipupillai, for the respondent David Bulmer, as a representative of
    Association of Management, Administrative and Professional Crown Employees of
    Ontario

Heard: November 10, 2020 by video conference

On
    appeal from the order of Justice Paul Schabas of the Superior Court of Justice,
    dated April 7, 2020, with reasons reported at 2020 ONSC 2147.

Hoy J.A.:

[1]

The appellant appeals the order of the motion
    judge, dismissing her action on the ground that the court has no jurisdiction
    over its subject matter.

Background

[2]

Briefly, the appellant is an employee of the
    Ontario Public Service (OPS) and a member of the Association of Management,
    Administrative and Professional Crown Employees of Ontario (AMAPCEO or the
    union). Her relationship with her employer is governed by the collective
    agreement between the union and Her Majesty the Queen in right of Ontario
    (Crown). Article 2 of the collective agreement prohibits discrimination based
    on, among other things, sex, disability, race, and colour. The collective
    agreement provides for a comprehensive grievance procedure, including binding
    arbitration before a labour arbitrator, the Grievance Settlement Board.

[3]

Beginning in November 2011, pursuant to the
    collective agreement, the union initiated several grievances on the appellants
    behalf asserting discrimination based on sex, gender, disability, race
    including anti-Black racism and harassment by her managers and co-workers in
    the OPS, and alleging breaches of the collective agreement, the
Human
    Rights Code
, R.S.O. 1990, c. H.19 (the
Code
) and the
Employment
    Standards Act
, S.O. 2000, c. 41.

[4]

In 2012, independently of the union, the
    appellant also made an application before the Human Rights Tribunal of Ontario
    (HRTO) alleging discrimination based on race, colour, disability, sex, and
    pregnancy. The HRTO deferred her application on the basis that the allegations
    in her application overlapped significantly with the first of the grievances
    filed by the union on her behalf pursuant to the collective agreement.

[5]

At the appellants request, in April 2017, the
    union withdrew the grievances so that her HRTO application could proceed. The
    application was reactivated in May 2017. However, in July 2017, at the
    appellants request, the application was adjourned.

[6]

Thereafter, in August 2018, the union filed a
    further grievance on the appellants behalf. It is being held in abeyance, by
    agreement of the union and the Crown.

[7]

In February 2019, the appellant commenced this
    action in the Superior Court of Justice against the Crown and the union.
[1]
The
    motion judge described the statement of claim as follows:

The statement of claim is 41 pages long
    describing a range of incidents and conduct of the Crown and union, with
    additional schedules containing a glossary of terms and particulars of wrongful
    and negligent acts of the defendants, their duties and failures to meet them,
    and details of the plaintiffs damages. All the claims are grounded in
    allegations of discrimination and harassment arising from Nelsons employment
    by Ontario.

[8]

The HRTO then deferred the appellants
    application, pending completion of these civil proceedings.

[9]

The Crown and the union  the respondents in the
    appeal  moved to dismiss the action on the basis that the court lacks
    jurisdiction to hear the matter because it arises out of an employment dispute
    under a collective agreement and therefore should be heard by a labour
    arbitrator or the HRTO.

The trial
    judges reasons

[10]

Applying the Supreme Courts decision in
Weber
    v. Ontario Hydro
, [1995] 2 S.C.R. 929, the trial judge granted the
    defendants motions and struck the action. By way of overview, he explained
    that:

...the long-standing principles stated in
Weber
,

repeatedly reaffirmed by the courts,
    that a courts jurisdiction is ousted when a plaintiff is under a collective
    bargaining regime, apply here. Although courts have jurisdiction to consider
    matters arising under the
Human Rights Code
, it is a very limited
    jurisdiction which requires the existence of a separate, and additional, cause
    of action which is properly before the court in the case. That is not the
    situation here, where the plaintiffs complaints arise entirely from her
    employment, which is governed by a Collective Agreement, and her claim does not
    raise any new or separate cause of action which the court can, or should,
    consider.

[11]

The motion judge reviewed the relevant
    jurisprudence.

[12]

In
Weber
, the Supreme Court considered
    the mandatory arbitration provision in what is now s. 48(1) of the
Labour
    Relations Act
, 1995, S.O. 1995, c. 1, Sched. A (LRA). That section provides
    that every collective agreement shall provide for the final and binding
    arbitration of all differences between the parties arising from the
    interpretation, application, administration or alleged violation of the
    agreement, including any question as to whether a matter is arbitrable. The
    Supreme Court held that this provision grants the arbitrators exclusive
    jurisdiction over a dispute where that dispute arises from the collective
    agreement, either expressly or inferentially.

[13]

Section 7(3) of the
Crown Employees
    Collective Bargaining Act
, 1993, S.O. 1993, c. 38 (CECBA), which applies
    here, mirrors the provisions considered by the Supreme Court in
Weber
in all respects material to this appeal.

[14]

Referring to
Weber
, at paras. 55-59,
    the motion judge observed that, where the essential character of a dispute
    arises from a collective agreement, the court lacks jurisdiction and the matter
    is reserved for the labour arbitrator.

[15]

Because the appellant takes issue in her
    statement of claim with the unions representation of her, the motion judge
    also considered s. 74 of the LRA, which is deemed to form part of the CECBA,
    and
Gendron v. Supply and Services Union of the Public Service Alliance of
    Canada, Local 50057
, [1990] 1 S.C.R. 1298. He noted that s. 74 of the LRA
    imposes a duty on unions to fairly represent all members and that an individual
    member who believes that their union is violating s. 74 has the right to bring
    an application to the Ontario Labour Relations Board (OLRB).

[16]

In
Gendron
, the Supreme Court held that
    the common law duty of fair representation was ousted by a statutory process
    for addressing that duty before a labour board. Where the statute applies, the
    courts jurisdiction is limited to the review of the labour boards decision,
    within the parameters contemplated by the relevant privative clause. However,
    there may be exceptions, including instances, such as in the context of human
    rights violations, where, while the statute may apply, the breach may not be
    properly characterized as exclusively a labour relations matter. In these
    circumstances, the jurisdiction may be grounded elsewhere:
Gendron
,
    at p. 1320. Citing
Gendron
, the motion judge found that the claims
    pleaded here against the union relate to its representation of the appellant
    and should be dealt with by the OLRB, subject to the exception for human rights
    complaints.

[17]

The motion judge explained that
Quebec
    (Commission des droits de la personne et des droits de la jeunesse) v. Quebec
    (Attorney General)
, 2004 SCC 39, [2004] 2 S.C.R. 185 (
Morin
)
    and
Naraine v. Ford Motor Co. of

Canada
(2001), 209 D.L.R.
    (4th) 465 (Ont. C.A.), leave to appeal refused, [2002] S.C.C.A. No. 69,
    established that, despite
Weber
and
Gendron
, the HRTO has
    concurrent jurisdiction to consider discrimination complaints arising from the
    employment context.

[18]

The motion judge considered s. 46.1 of the
Code
,
    the 2008 amendment to the
Code
invoked by the appellant in support of
    her argument that the court has concurrent jurisdiction. That section provides
    that a person cannot commence an action based solely on a breach of the
Code
:

46.1(1) If, in a civil proceeding in
    a court, the court finds that a party to the proceeding has infringed a right
    under Part I [Freedom from Discrimination] of another party to the
    proceeding, the court may make either of the following orders, or both:

1. An order directing the party
    who infringed the right to pay monetary compensation to the party whose right
    was infringed for loss arising out of the infringement, including compensation
    for injury to dignity, feelings and self-respect.

2. An order directing the party
    who infringed the right to make restitution to the party whose right was
    infringed, other than through monetary compensation, for loss arising out of
    the infringement, including restitution for injury to dignity, feelings and
    self-respect.

(2)
Subsection
    (1) does not permit a person to commence an action based solely on an
    infringement of a right under Part I.
[Emphasis added.]

[19]

The motion judge noted that s. 46.1 was recently
    considered in
Rivers v. Waterloo Regional Police Services Board
, 2018
    ONSC 4307, affd, 2019 ONCA 267, 2019 C.L.L.C. 220-038, leave to appeal to SCC refused,
    38707 (October 24, 2019).

[20]

In
Rivers
, the representative plaintiffs
    sought certification of a proposed class action on behalf of female police
    officers, alleging that both the Waterloo Regional Police Services Board and
    the Waterloo Regional Police Association were liable for systemic gender-based
    discrimination and sexual harassment. The motion judge in
Rivers,
Baltman J., concluded that s. 46.1 did not permit the action and dismissed the
    action. All the alleged wrongs claimed, at their core, sexual discrimination:
Rivers
, at para. 48. There was no independent actionable wrong to
    ground a court action. Baltman J. accordingly dismissed the action on the basis
    that the court had no jurisdiction over the dispute. This court upheld her
    decision and the Supreme Court refused leave to appeal.

[21]

The motion judge concluded that the appellants
    claim, like that in
Rivers
, is based entirely on discrimination and
    harassment in the workplace. While the appellant pleaded various causes of
    action, such as negligence and invasion of privacy, the claim must be assessed
    under the
Weber
framework, which cannot be circumvented by innovative
    pleading. He reasoned that, [t]he essential character of this dispute,
    including all of the causes of action, arise in the workplace and are governed
    by the collective agreement.

[22]

He rejected the appellants argument that,
    notwithstanding
Weber
, s. 46.1 of the
Code
impliedly extends
    concurrent jurisdiction to the courts and labour arbitrators to hear matters involving
    violations of the
Code
arising in a workplace governed by a collective
    agreement, much like the former Human Rights Board of Inquiry and labour
    arbitrators shared concurrent jurisdiction as set out in
Naraine.
He
    explained:

in my view the requirement in subsection
    46.1(2) that the action not be based solely on an infringement of a right
    under Part I of the
Code
does not mean that
Weber
no longer
    applies. While there has been an extension of concurrent jurisdiction, it is a
    limited extension. Clearer language would need to be used to override
Weber
,
    and s. 48(1) of the
Labour Relations Act
, 1995, which contain
    fundamental tenets of the collective bargaining regime. Rather, s. 46.1(2) must
    be read together with the principles in
Weber
, as it was in
Rivers
.

Accordingly, for a unionized employee to
    assert human rights claims in a civil action against her employer, and/or
    union, there must be some independent civil wrong that does not, in its
    essential character, arise from the workplace governed by the collective
    agreement. As there is no such wrong pleaded here on which to piggy back a
    human rights claim, the court has no jurisdiction.

[23]

Finally, the motion judge noted that the
    appellant can pursue all her complaints, including those against the union,
    before the HRTO, which can order individual and systemic remedies.

Analysis

[24]

The appellant argues that the motion judge erred
    in not finding that the court has concurrent jurisdiction over her claim. She
    advances three arguments.

Section 46.1 of the
Code
and a presumption
    of arbitration

[25]

First, the appellant argues that the motion
    judge erred in his analysis by starting from the position that there is a
    presumption of arbitration where the plaintiffs employment is governed by a
    collective agreement and failing to follow the two-step approach in
Morin
.
    This, she argues, coloured his approach and led him to conclude that s. 46.1 of
    the
Code
, which was enacted after
Weber
, should be read
    together with
Weber
. She says s. 46.1 of the
Code
was enacted
    after and should be interpreted without reference to
Weber
. In her
    view, properly interpreted, s. 46.1 permits a plaintiff to bring a civil action
    that according to
Weber
is within the exclusive jurisdiction of a
    labour arbitrator provided that the action is brought in conjunction with a
    breach of the
Code
.

[26]

I reject this argument.

[27]

The motion judge did not err in his analytical
    approach.

[28]

Read in context, the motion judges use of the
    expression presumption of arbitration in the title to a portion of his
    reasons and his statement that, where a plaintiffs employment is governed by a
    collective agreement, presumptively, any employment related dispute must be
    dealt with by way of arbitration, are simply his short-hand descriptions of
    the principle in
Weber
, confirmed in
Morin
, which he
    subsequently articulates in greater detail.

[29]

Morin
, which
    also predates s. 46.1 of the
Code
, does not assist the appellant. It
    does not provide jurisdiction to the civil courts for matters within the ambit
    of a labour arbitrators exclusive jurisdiction.

[30]

Morin
considered which of two administrative tribunals should hear a dispute.
Morin
does not establish a different analytical framework from
Weber
for
    determining whether a court has jurisdiction. In
Morin
, Chief Justice
    McLachlin reviewed the principles in
Weber
and applied those
    principles to different legislation than that considered in
Weber
and
    to a different factual matrix.

[31]

As the appellant argues, in
Morin
, at
    paras. 14-15, the Chief Justice makes clear that
Weber
does not stand
    for the proposition that labour arbitrators always have exclusive jurisdiction
    in employer-union disputes:

the question in each case is whether the
    relevant legislation applied to the dispute at issue, taken in its full factual
    context, establishes that the labour arbitrator has exclusive jurisdiction over
    the dispute.

This question suggests two related steps. The
    first step is to look at the relevant legislation and what is says about the
    arbitrators jurisdiction. The second step is to look at the nature of the
    dispute, and see whether the legislation suggests it falls exclusively to the
    [labour] arbitrator.

[32]

Applying this two-step approach, the Chief
    Justice found that the Quebec
Labour Code
, R.S.Q., c. C-27 provided
    jurisdiction to the labour arbitrator over matters arising out of the
    collective agreements operation and that
Weber
had determined that
    this jurisdiction is exclusive. She considered the Quebec
Charter,
which
    grants Quebecs Human Rights Tribunal jurisdiction, and concluded that while
    the Tribunal enjoys broad jurisdiction over human rights violations in Quebec,
    it is not exclusive and that its jurisdiction may be concurrent with that of
    other adjudicative bodies. The Chief Justice, at para. 20, then considered
    whether the dispute in issue viewed in its essential character and not
    formalistically fell within the ambit of the labour arbitrators exclusive
    jurisdiction, as was the case in
Weber
. She concluded it did not and
    that, accordingly, the Human Rights Tribunal was entitled to exercise its
    concurrent jurisdiction over the claim.

[33]

In this case, the relevant legislation is the
    CECBA, which mirrors the LRA, and s. 46.1 of the
Code
. As
Morin
notes,
Weber
has determined that the labour arbitrators jurisdiction is
    exclusive, where the essential character of the dispute arises from the
    collective agreement, either expressly or inferentially. Based on
Naraine
,
    all accept that the HRTO has concurrent jurisdiction with the labour arbitrator
    over the appellants human rights issues. In interpreting s. 46.1, the motion
    judge applied the approach in
Rivers
, which was upheld on appeal to
    this court. He properly interpreted s. 46.1 of the
Code
together with
Weber
.
    The motion judge then considered the nature of the dispute and concluded that
    the wrongs pleaded by the appellant in her statement of claim were, subject to
    the limited concurrent jurisdiction of the HRTO, within the exclusive
    jurisdiction of the labour arbitrator.

[34]

Nearly three years before
Morin
, and
    applying slightly different reasoning than Chief Justice McLachlin in
Morin
,
    this court concluded in
Naraine
that the HRTO has concurrent
    jurisdiction with a labour arbitrator over human rights issues. In coming to
    that conclusion, Abella J.A. (as she then was), writing for the court, noted
    that, [h]uman rights legislation has consistently been found to occupy a
    uniquely protected sphere in the legal orbit. It enjoys quasi-constitutional
    status and can only be overridden by express and unequivocal language:
Naraine
,
    at para. 47.

[35]

Seizing on this language, the appellant argues
    that because the
Code
enjoys quasi-constitutional status, s. 46.1 of
    the
Code
should not be limited by Supreme Court authority which
    pre-dates its enactment. I disagree.

[36]

Section 46.1 of the
Code
presupposes
    that the action brought is properly before the court:
Jaffer v. York
    University
, 2010 ONCA 654, 268 O.A.C. 338, at para. 44. There is no ground
    to presume that the legislature, in enacting s. 46(1), intended to grant the
    Superior Court jurisdiction over claims that otherwise should be heard by labour
    arbitrators or the HRTO. Indeed, the operating presumption is that the
    legislature does not intend to change existing law or to depart from
    established principles, policies or practices:
Parry Sound (District)
    Social Services Administration Board v. Ontario Public Service Employees Union,
    Local 324 (OPSEU)
, 2003 SCC 42, [2003] 2 S.C.R. 157, at para. 39. As the
    motion judge concluded [c]learer language would need to be used to override
Weber
,
    and s. 48(1) of the
Labour Relations Act
, 1995, which contain
    fundamental tenets of the collective bargaining regime.

The essential character of the
    appellants claims

[37]

Second, the appellant argues that the motion
    judge erred in finding that the essential character of the dispute, including
    all of the causes of action, arise in the workplace and are governed by the
    collective agreement. That, she says, is the
place
of her claim, not
    its essential character. She says the essential character of her claim is discrimination
    and harassment, including systemic anti-Black racism, and the court accordingly
    has concurrent jurisdiction.

[38]

I reject this argument. The motion judge did not
    simply focus on the place of her claim. He accepted that discrimination and
    harassment arising from her employment were the essential character of her
    claim. Elsewhere, in his reasons, the motion judge wrote that [a]ll the claims
    are grounded in allegations of discrimination and harassment arising from
    Nelsons employment by Ontario. These allegations fall squarely within the
    non-discrimination provisions of Article 2 of the collective agreement. In any
    event, the fact that the essential character of her claim is allegations of
    discrimination and harassment arising from her employment does not result in
    the court having concurrent jurisdiction over claims within the exclusive
    jurisdiction of a labour arbitrator or the HRTO.

The practical unavailability of the
    grievance process

[39]

Third, the appellant argues that the motion
    judge failed to consider whether her evidence establishes that the grievance
    and arbitration process under the collective agreement is practically
    unavailable to her. In her factum, she cites this courts decision in
Rivers
as authority for the proposition that if the grievance/arbitration process is
    practically unavailable to a plaintiff, then she may be granted access to the
    court.

[40]

As the appellant concedes in oral argument, in
Rivers
this court did not go so far as to hold that a plaintiff may or should be
    granted access to the court where she does not have an adequate remedy on a
    practical basis. The court did not need to determine the issue. It disposed of
    the appellants argument that they should be granted access for that reason on
    the basis that they had not attempted to avail themselves of the mandatory
    grievance/arbitration process or led evidence to demonstrate that it was
    practically unavailable.

[41]

Here, at the appellants request, the union
    withdrew the grievances in April 2017 so that her HRTO application could
    proceed. The motion judge found that she can pursue all her complaints,
    including those against the union, before the HRTO, which can order individual
    and systemic remedies. There is no basis for this court to interfere with that
    finding. On the motion judges finding, a remedy is not practically unavailable
    to the appellant.

Disposition

[42]

Accordingly, I would dismiss the appeal. As
    agreed by the parties, I would order that there shall be no costs of the
    appeal.

Released: AH NOV 30 2020

Alexandra
    Hoy J.A.

I
    agree. David Brown J.A.

I
    agree. Thorburn J.A.

[1]
The appellant commenced her action against David Bulmer, as a
    representative of the union.