CITATION:
Schneeberg v. Talon International Development
          Inc., 2011 ONCA 687

DATE: 20111108

DOCKET: C52928

COURT OF
APPEAL
FOR ONTARIO

Blair, Watt
          and Epstein JJ.A.

BETWEEN

Richard E.
          Schneeberg

Applicant
          (Respondent)

and

Talon
          International Development Inc.

Respondent
          (Appellant)

David M. Goodman, for the respondent

Mark A. Klaiman, for the appellant

Heard: June 1, 2011

On appeal from the order of
          Justice Sandra Chapnik of the Superior Court of Justice dated October 12, 2010,
          with reasons reported at 2010 ONSC 5559
.

Epstein J.A.:

I.

OVERVIEW

[1]

This appeal concerns the interpretation of an agreement of purchase
    and sale whereby the respondent agreed to purchase a condominium unit from the appellant.
     The dispute involves whether the respondent is entitled to terminate the
    contract on the basis that the appellant failed to provide occupancy and close
    the transaction on the specific closing date set out in the agreement.

[2]

On August 27, 2004, the appellant, Talon International
    Development Inc. (the Vendor), and the respondent, Richard E. Schneeberg (the
    Purchaser), entered into an agreement for the purchase of a condominium unit (the
    Agreement).  The condominium  then yet to be constructed  is located in the
    Trump International Towers.

[3]

Pursuant to the terms of the Agreement, the Purchaser paid
    deposits totalling $212,700 to the Vendors solicitors, in trust, to the credit
    of the purchase price of $709,000.

[4]

The Agreement specified that the Purchaser would assume occupancy
    and the sale would close on the closing date of March 20, 2009, or such
    extended or accelerated date pursuant to the terms of the Agreement. The transaction
    did not close on March 20, 2009, as the unit was not ready for occupancy.

[5]

On November 20, 2009, the Purchaser commenced an application for (1)
    a declaration that the Vendor had breached the Agreement by its failure to
    provide occupancy by the specified date, and (2) the return of all paid deposits,
    together with accrued statutory interest pursuant to the
Condominium Act,
    1998
,

S.O. 1998, c. 19.

[6]

The application judge granted the relief requested.

[7]

The Vendor appeals on the grounds that the application judge
    erred in holding that the Agreement, construed as a whole and in its commercial
    context, did not provide the Vendor with the right to extend the March 20, 2009
    occupancy and closing date.  The Vendors primary submission on this appeal is that
    the Agreement, properly interpreted, provides that closing shall take place
    March 20, 2009, subject to extensions necessary to bring the unit to the point
    where it is substantially completed and ready for occupancy.

[8]

The Vendor also argues that the application judge erred by treating
    the closing date as a fundamental term of the Agreement, the breach of which
    allowed the Purchaser to terminate the transaction, and by failing to consider whether
    conduct on the Purchasers part constituted waiver in respect of the March 20,
    2009 closing date.

[9]

I would dismiss the appeal. I agree with the application judge
    that the Agreement does not provide the Vendor with what would amount to an
    unlimited unilateral right to delay closing. I further agree with the
    application judges conclusions that the Vendors failure to meet the closing
    date entitled the Purchaser to the relief sought, and that the facts do not
    substantiate a finding that the Purchaser had waived his right to terminate the
    Agreement.

II.

THE AGREEMENT

[10]

The Agreement contains several terms relevant to the closing date
    and any changes that may be made to it.

[11]

Paragraph 2 of the Agreement defines the closing date:

2.  (a)       The
    Purchaser shall assume occupancy of the Unit, subject to the terms of the Hotel
    Use Maintenance Agreement described in sub-paragraph 4(b) herein on March 20,
    2009, or such extended or accelerated date pursuant to the terms hereof that
    the Unit is substantially completed by the Vendor for occupancy by the
    Purchaser in accordance with Paragraph 13 hereof (the Closing Date);

(b)            The transfer of
    title to the Unit shall be completed on the later of the Closing Date or a date
    established by the Vendor in accordance with Paragraph 13 hereof (the Unit
    Transfer Date);

[12]

Paragraph 13 also contemplates extension or acceleration of the
    closing date:

13. (a)      The
    transaction of purchase and sale shall be completed on the Closing Date or any
    extension thereof as may be permitted under this Agreement, at which time
    vacant possession of the unit will be given to the Purchaser. The Vendor shall
    be entitled upon giving at least sixty (60) days written notice to the
    Purchaser or his solicitor, to accelerate the Closing Date provided the Unit is
    substantially complete and fit for occupancy on such earlier date.

Upon registration
    of the Condominium, the Vendors solicitor shall not less than ten (10) days
    after registration of the Creating Documents
[1]
designate a date as the Unit Transfer Date by delivery of written notice of
    such date to the Purchaser or his/her solicitor.

[13]

Paragraph 20 outlines a right to terminate the Agreement:

20.            If the Vendor
    shall be unable to complete the Unit for occupancy by the Closing Date, as may
    be extended from time to time pursuant to this Agreement, then, unless the
    parties hereto otherwise agree in writing, the Purchaser shall have the right
    to terminate this Agreement by notice in writing to the Vendor or the Vendors
    Solicitor and all monies to the extent provided for in Paragraph 19 hereof,
    shall be returned to the Purchaser and this Agreement shall be terminated and
    the Vendor shall not be liable to the Purchaser for any damages arising as a
    result thereof and shall have no further obligation hereunder. If the Unit is
    substantially completed for occupancy by the Closing Date, or any
    acceleration/extension thereof in accordance with this Agreement, this
    transaction shall be completed on such date notwithstanding that the Vendor has
    not fully completed the Unit or the common elements and the Vendor shall
    complete such outstanding work required by this Agreement within a reasonable
    time after the Closing Date, having regard to weather conditions and the availability
    of labour and materials. The Unit shall be deemed to be substantially completed
    when the interior work has been finished to permit occupancy. The Purchaser
    acknowledges that failure to complete the common elements on or before the
    Closing Date shall not be deemed to be a failure to complete the Unit.

[14]

Paragraph 23 defines what is meant by substantial completion for
    the purposes of the Purchaser assuming occupancy:

23. (a)      The
    Unit shall be deemed to be substantially completed when the interior work has
    been finished to the minimum standards allowed by the Municipality so that the
    Unit may be lawfully occupied notwithstanding that there remains other work
    within the Unit and/or the common elements to be completed.  The Purchaser
    shall not occupy the Unit until the Municipality has permitted same or
    consented thereto, if such consent is required and the Closing Date shall be
    postponed until such required consent is given.  The Purchaser shall not
    require the Vendor to provide or produce an occupancy permit, certificate or
    authorization from the Municipality, and the Purchaser shall satisfy
    himself/herself in this regard.  The Purchaser acknowledges that the failure to
    complete the common elements before the Closing Date shall not be deemed to be
    failure to complete the Unit, and the Purchaser agrees to complete this
    transaction notwithstanding any claim submitted to the Vendor and/or to the
    Warranty Program in respect of apparent deficiencies or incomplete work
    provided, always, that such incomplete work does not prevent occupancy of the
    Unit as, otherwise, permitted by the Municipality.

(b)                        If
    the Unit is substantially complete and fit for occupancy on the Closing Date,
    as provided for in subparagraph (a) above, but the Creating Documents have not
    been registered, (or in the event the Condominium is registered prior to the
    Closing Date and sale documentation has yet to be prepared, the Purchaser shall
    pay to the Vendor a further amount on account of the Purchase Price specified
    in paragraph 1(b) hereof without adjustment save for any pro-rated portion of
    the Occupancy Fee described and calculated in Schedule C and the Purchaser
    shall occupy the Unit on the Closing Date pursuant to the Occupancy Licence
    attached hereto as Schedule C.

[15]

The Agreement contains no other provision that relates to any
    extension to the closing date or the terms that govern the right of one party
    to impose any extension on the other.

[16]

The Agreement also does not contain a

time
    of the essence clause.

III.

FACTUAL BACKGROUND

[17]

The Vendor wrote to the Purchaser on November 15, 2006, some 26 months
    after the Agreement was entered into, advising that the unit would be available
    for occupancy no later than December 31, 2010 and, in any event, no later than
    24 months from the closing date of March 20, 2009.

[18]

The letter included a proposed amendment to the Agreement  the
    Vendor asked the Purchaser to agree to the insertion of the following provision,
    after the first sentence of para. 13(a):

If the Vendor shall be unable to provide occupancy
    on the Closing Date for any reason whatsoever, the Vendor may extend the
    Closing Date one or more times as may be required by the Vendor, all extensions
    in the aggregate not to exceed twenty-four (24) months.

[19]

On April 24, 2008, the Purchaser wrote to the Vendor seeking to terminate
    the Agreement due to financial difficulties.

[20]

Several months later, in November 2008, the Vendor sent the
    Purchaser notification of an extension of the tentative closing date of March
    20, 2009 to November 1, 2010.

[21]

On August 14, 2009, the Purchaser wrote to the Vendor, questioned
    the Vendors right to extend the closing date, unilaterally, and advised the
    Vendor that he was rejecting the proposed extension.

[22]

The Purchaser then commenced this application.

IV.

THE DECISION OF THE APPLICATION JUDGE

[23]

The application judges analysis of the key issue  whether the
    Vendor has a right to extend closing in these circumstances  begins with the
    observation that the Agreement, in a number of places, contemplates extensions
    to the closing date, as may be permitted by the Agreement.  But the Agreement
    contains no terms pertaining to the granting of or process involved in
    extending the closing date.   The application judge describes this as common
    ground.

[24]

After noting that the Agreement must be construed according to
    its terms, the application judge, in keeping with the shared position of
    counsel, herself observes that the Agreement contains no term that specifically
    permits the occupancy closing date to be extended in the event of construction
    delays: [t]he Agreement simply allows extensions pursuant to these terms and
    there are none.

[25]

In paras. 22 and 23, the application judge makes further
    observations about the terms of the parties agreement:

Not only does the Agreement in the within case not
    give the [Vendor] a unilateral right to extend the occupancy date, but
    paragraph 20 gives the [P]urchaser a right to terminate the Agreement if the [V]endor
    is unable to complete the unit for occupancy by the original closing date of
    March 20, 2009. The right is not absolute since the provision also contains the
    words as may be extended from time to time pursuant to the Agreement. As
    above noted, however, these words are somewhat inane as nothing in the
    Agreement permits or describes an extension procedure. There are no means of
    extending the closing date in the event of unforeseeable delay.

Upon reviewing the provisions of the particular
    contract before me in their entirety, I find that while the parties
    contemplated some extensions, they also specifically gave the [P]urchaser a
    right to terminate the Agreement, absent written consent of the parties to
    extend the closing. The [Vendor] could not unilaterally extend after March 20,
    2009. This conclusion gains some support from the fact that the [Vendor] attempted
    to have the [Purchaser] agree to amend the Agreement to make time of the
    essence and to permit it to extend the closing date.

[26]

After explaining her clear path to the conclusion that, according
    to the Agreement, the Vendor was not permitted to extend the closing date
    unilaterally, the application judge goes on to hold that even if it were
    determined that the Agreement was ambiguous in this respect, the Agreement must
    be construed against the interests of the Vendor on the basis of the
contra proferentem
rule.

[27]

In the light of these conclusions and her rejection of the Vendors
    arguments relating to the nature of the breach and to waiver, the application
    judge granted the relief sought by the Purchaser.

V.

THE ISSUES

[28]

The issues raised on this appeal are:

i)

whether the application judge erred in finding that the Agreement allowed
    the Purchaser to terminate the transaction based on the Vendors failure to
    close on March 20, 2009; and

ii)

whether the application judge erred by failing to consider the issue of
    waiver.

VI.

ANALYSIS

i)

Interpretation of the Agreement

[29]

The first issue  whether the Purchaser is entitled to terminate
    the Agreement and claim relief under s. 20  turns on whether the Agreement permitted
    the Vendor to unilaterally extend the closing date.

[30]

As the application judge noted, the parties contemplated extensions
    to the closing of the transaction. It is clear they therefore intended that the
    Agreement would provide the Vendor with the right to extend the closing date.
    However, there were to be terms governing the exercise of that right.

[31]

These observations bring into focus the divide between the
    parties: whether the Agreement, in fact, contains a provision setting out the
    circumstances under which the Vendor was entitled to extend closing.

[32]

The Purchaser submits that the application judge correctly
    proceeded on the basis that the Agreement contained no conditions governing the
    Vendors right to extend closing.  This deficiency, says the Purchaser, means
    that the Vendors failure to close the transaction by March 20, 2009 triggered
    his right under para. 20 to terminate the Agreement and have his deposits
    returned.

[33]

Before this court, counsel for the Vendor takes a different tack
    than that taken before the application judge.  Now, rather than concede that
    the Agreement contains no terms governing the circumstances under which the
    Vendor can delay closing, the Vendors argument is that the application judge
    erred in not appreciating that the terms governing its right to extend the
    closing date are found in para. 2(a); the wording of which specifically links
    the Vendors right to delay closing to the readiness of the unit for occupancy.

[34]

In support of its position the Vendor now takes before this
    court, it makes two main arguments.

[35]

First, the Vendor submits that on a plain reading of para. 2(a),
    the parties agreed that closing would take place on March 20, 2009, or on
    another date, conditional on the units being substantially completed for
    occupancy as defined in para. 23.  Put more simply, the submission is that the
    parties agreed to set March 20, 2009 as the target date for closing.  However,
    if the transaction could not close on that date (because it was not fit for
    occupancy), the Vendor would have an ongoing right to extend the closing date
    pending the units being suitable for the Purchaser to occupy.

[36]

Second, the Vendor asserts that by interpreting the Agreement in
    a way that did not allow for closing date extensions, the application judge
    failed to take into account the delays inherent in the business of buying and
    selling newly-built condominium units.  She thereby erred in failing to apply
    one of the basic principles of contractual interpretation: that when parties
    have reduced their accord to writing, in order to understand their intent, the document
    must be construed in a manner that takes into account its commercial context.

[37]

I cannot accept the interpretation that the Vendor now seeks to
    advance. I come to this conclusion based on the following analysis.

[38]

This court has set about explaining the approach to interpreting
    contracts in a number of recent decisions.  In
Dumbrell v. Regional Group of
    Companies Inc
., 2007 ONCA 59, 85 O.R. (3d) 616, a case involving the
    interpretation of an employment agreement, Doherty J.A. offered the following
    approach, at para. 53:

The text of the written agreement must be read as a
    whole and in the context of the circumstances as they existed when the
    agreement was created. The circumstances include facts that were known or
    reasonably capable of being known by the parties when they entered into the
    written agreement: see
BG Checo International Ltd. v. British Columbia Hydro
    and Power Authority
, [1993] 1 S.C.R. 12 at 23-24,
H.W. Liebig & Co.
    v. Leading Investments Ltd
., [1986] 1 S.C.R. 70 at 80-81, La Forest J.;
Prenn
    v. Simmonds
, [1971] 1 W.L.R. 1381 at 1383-84 (H.L.); Staughton, How Do the
    Courts Interpret Commercial Contracts?, [(1998) 58
Cambridge L.J
. 303],
    at 307-308.

[39]

In his discussion of the applicable legal principles, at para.
    54, Doherty J.A. highlights his view that this contextual consideration is not
    dependent on a finding that the words themselves suggest some ambiguity, but is
    an integral part of the interpretive process:

A consideration of the context in which the written
    agreement was made is an integral part of the interpretative process and is not
    something that is resorted to only where the words viewed in isolation suggest
    some ambiguity. To find ambiguity, one must come to certain conclusions as to
    the meaning of the words used. A conclusion as to the meaning of words used in
    a written contract can only be properly reached if the contract is considered
    in the context in which it was made: see McCamus,
The Law of Contracts
(Toronto: Irwin Law, 2005) at 710-11.

[40]

Doherty J.A. acknowledged, at para. 55, that [t]here is some
    controversy as to how expansively context should be examined for the purposes
    of contractual interpretation, but clarified that [i]nsofar as written
    agreements are concerned, the context, or as it is sometimes called the factual
    matrix, clearly extends to the genesis of the agreement, its purpose, and the
    commercial context in which the agreement was made.

[41]

In
Commercial Alcohols Inc. v.
    Suncor Energy Products Inc.
, 2008 ONCA 261, 165 A.C.W.S. (3d) 448, at para.
    33, Laskin J.A. specifically endorsed the
Dumbrell
approach to
    contractual interpretation in describing the process as follows:

The goal of contractual interpretation is to
    determine the intent of the parties when the contract was made. To do so, the
    court looks at the words the parties used and the context in which the contract
    was signed. Goudge J.A. concisely summarized the proper approach to contractual
    interpretation in his reasons in
Kentucky Fried Chicken
    Canada v. Scott's Food Services Inc.
, [1998] O.J. No. 4368 at para. 25
    (C.A.):

While the task of interpretation must begin with
    the words of the document and their ordinary meaning, the general context that
    gave birth to the document or its "factual matrix" will also provide
    the court with useful assistance.

See also a more extensive discussion of this
    approach by Doherty J.A. in
Dumbrell v. Regional Group of
    Companies

(2007), 85 O.R. (3d) 616
at paras. 47-56 (C.A.).

This approach has been relied on in many other post-
Dumbrell
decisions of this court: see
Ventas, Inc. v. Sunrise Senior Living Real
    Estate Investment Trust
, 2007 ONCA 205, 85 O.R. (3d) 254;
3869130 Canada Inc. v. I.C.B. Distribution Inc.
, 2008 ONCA 396, 167 A.C.W.S. (3d) 82;
RF Real Estate
    Inc. v. Rogers Telecom Holdings Inc.
, 2009 ONCA 899, 265 O.A.C. 329;
Hawley
    v. North Shore Mercantile Group
, 2009 ONCA 679, 255 O.A.C. 143;
Zeubear
    Investments Ltd. v. Magi Seal Corp.
, 2010 ONCA 825, 103 O.R. (3d) 578; and
SeaWorld Parks and Entertainment LLC v. Marineland of
    Canada Inc.
, 2011 ONCA 616.

[42]

I find further support for this approach in the comment of
    Cromwell J. in
Tercon Contractors Ltd. v. British Columbia (Transportation
    and Highways)
, 2010 SCC 4, [2010] 1 S.C.R. 69, at para. 64, where he stated
    that a key principle of contractual interpretation is that the words of one
    provision must not be read in isolation but should be considered in harmony
    with the rest of the contract and in light of its purpose and commercial
    context.

[43]

I therefore begin with the words the parties used to record their
    agreement.

[44]

It is clear from the language used in paras. 2(a), 13, and 20 of
    the Agreement that the parties intended that there would be terms governing the
    Vendors right to extend the date for closing.  It is equally clear that there
    is a gap in the Agreement; no such terms can be found in the document.

[45]

The wording contained in paras. 13 and 20, that contains general
    references to the Vendors entitlement to extend the closing date as
    ...permitted under this Agreement... or ...pursuant to this Agreement... neither
    creates a right to extend the closing date nor grants a
unilateral
right
    to the Vendor to extend the closing date. All it does is reinforce the
    conclusion that there is a deficiency in the wording of the Agreement.

[46]

However, I agree with counsel for the Vendor that para. 2(a) is
    distinguishable from paras. 13 and 20 in that its language identifies the
    Purchasers right to occupancy with the units readiness.  As I have said, it
    is this connection that the Vendor relies on in its submission that the need
    for the unit to be ready for occupancy is, in fact, the condition that governs
    the Vendors right to extend the closing date.

[47]

In my view, there are several reasons why this interpretation cannot
    stand.

[48]

First, a reading of the contract as a whole leads to the
    conclusion that the wording of para. 2(a) cannot be interpreted so as to
    provide the Vendor with the right to extend closing until the unit is
    substantially fit for the Purchasers occupancy.  If that were the intention,
    the words and the structure of the paragraph would be much different.  The
    paragraph would clearly set out that the Vendors right to extend closing was
    limited to the existence of an incomplete unit.  And it does not. To suggest it
    does, is, with respect, a stretch.

[49]

Furthermore, the Vendors position runs afoul of the basic legal
    principle that, where possible, all words in an agreement must be given meaning:
    see
Ventas
, at para. 24.

[50]

Here lies the Vendors chief problem: to interpret the Agreement
    as providing it with what would amount to a unilateral right to delay the
    closing would render meaningless the term contained in para. 20 of the
    Agreement. As previously indicated, this paragraph gives the  Purchaser the
    right to terminate the Agreement  unless the parties agree otherwise in
    writing  [i]f the Vendor shall be unable to complete the Unit for occupancy
    by the Closing Date, as extended from time to time, pursuant to this
    agreement. Under the interpretation the Vendor advances, if on March 20, 2009
    the unit was not substantially completed for occupancy, then the closing date would
become
the date the unit is substantially completed for occupancy. Were
    this the case, it would be impossible for the closing date to precede the date
    of units substantial completion, and the Purchasers right of termination in
    para. 20 could never be triggered.

[51]

Second, when the proposed transaction is considered in its
    commercial context, the Vendors suggested interpretation cannot, as I see it,
    be what the parties intended.

[52]

There is no dispute over the fact that purchases and sales of
    condominiums are commercial transactions within an industry uniquely plagued by
    delays.  These delays are caused by the market, as the sale of units in a new
    development dictates the availability of financing, by the vagaries in the
    construction process, and by the complexities associated with the registration
    process required by the
Condominium Act.
Delays in the closing of
    condominium units are expected.  They are part of the business of developing
    condominium projects and, it follows, part of purchasing a newly-constructed
    unit.

[53]

Against this background, it is quite understandable that the
    parties expressed their accord in such a way as to contemplate extensions to
    the closing date.  However, it would be absurd to interpret the Agreement as
    giving the Vendor the right to extend closing on a basis that is not only unilateral,
    but also unlimited.  Among other problems, such a right would be open to
    manipulation and abuse.

[54]

Since the Agreement, read as a whole and in its commercial context,
    cannot bear the interpretation suggested by the Vendor, this ground of appeal
    must fail.

[55]

Finally, I would add that, like the application judge, I do not
    see this as a case involving an ambiguous contract.  I see an unambiguous
    contract that contains a gap  an obvious lack of a term to provide guidance to
    the parties in the event that an extension to the closing date is sought.  However,
    if this gap could be said to create an ambiguity, then the principle of
contra
    proferentem
would resolve that ambiguity in favour of the Purchaser: see
Hillis
    Oil and Sales Ltd. v. Wynns Canada, Ltd.
, [1986] 1 S.C.R. 57, at pp.
    68-69.

Time of the Essence Clause

[56]

The Vendor submits that the absence of a time of the essence clause
    is relevant to the issue of the nature of the breach, if any, and therefore, to
    the remedy available to the Purchaser. The contention is that, since the
    Agreement contains no such clause, a time stipulation operates as a warranty
    rather than a condition. Therefore, while the Vendors failure to perform in a
    timely manner may entitle the Purchaser to damages, it does not release him from
    his obligations under the contract. It follows that the failure to close on
    March 20, 2009 constitutes the breach of a warranty only; the Agreement still
    exists and is subject to completion within a reasonable time.

[57]

I reject this argument. While the Agreement contains no time of
    the essence clause, para. 20 specifically provides the Purchaser with a right
    to terminate the transaction should there be a delay in the units completion
    for occupancy beyond March 20, 2009.  In my view, the absence of a time of the
    essence clause is irrelevant as the Purchaser is invoking an enumerated contractual
    right.

ii)

Waiver

[58]

The Vendor also submits that the application judge did not
    consider the issue of waiver.

[59]

In my opinion, this argument too has no merit.

[60]

At para. 25 of her reasons, the application judge addresses the
    issue of waiver, saying that [t]he factual circumstances do not substantiate a
    finding of anticipatory breach of contract or waiver by the [Purchaser] of his
    right to terminate the Agreement.

[61]

In my view, this finding accords with the application of the
    legal principles to the facts.  In
Saskatchewan River Bungalows Ltd. v.
    Maritime Life Assurance Co.
, [1994] 2 S.C.R. 490,
at
    p. 500, it was held that

[w]aiver will be found only where the evidence demonstrates
    that the party waiving had (1) a full knowledge of rights; and (2) an
    unequivocal and conscious intention to abandon them. Here, the Purchasers
    refusal to agree with the Vendors proposed amendment to the Agreement supports
    a finding quite opposite to the notion that the Purchaser consciously abandoned
    his entitlement to rely on his rights under the Agreement.  Any delay in the
    Purchasers communicating his decision to exercise his right to terminate the
    Agreement does not change the clear position he took and does not afford the
    Vendor an opportunity to rely on waiver.

[62]

I see no reason to disturb the
    application judges conclusion on the issue of waiver.

VII.

CONCLUSION

[63]

The proper functioning of the complex and rapidly growing
    condominium industry depends on agreements that set out all rights and
    obligations of the parties in a clear fashion.  Unfortunately, the wording of
    the Agreement failed to do this.  And in these circumstances I see no basis for
    imposing on the Purchaser a term that was not in the Agreement.

[64]

The consequences of the Vendors failure to provide occupancy and
    close the transaction in accordance with the provisions of the Agreement are
    set out in para. 20 of the Agreement.  Since, in my view, the Purchaser did
    nothing to disentitle him to the remedies provided in the Agreement, he is
    entitled to the relief sought.

VIII.

DISPOSITION

[65]

I would therefore dismiss the appeal.

[66]

I would award the Purchaser his costs of this appeal in the
    amount of $7,500.00 inclusive of disbursements and applicable taxes.

RELEASED:

NOV -8 2011                                 G.J.
    Epstein J.A.

RAB                                              I
    agree R.A. Blair J.A.

I agree David Watt J.A.

[1]
The application judge misquoted the Agreement in her reasons, referring to
    Condominium Documents. The actual wording of the Agreement references
    Creating Documents. This misstatement has no bearing on the merits of the
    appeal.


CITATION:
Stewart v. Crane, 2011 ONCA 758

DATE: 201111130

DOCKET: C52554

COURT OF APPEAL FOR ONTARIO

MacPherson, Simmons and Blair JJ.A.

BETWEEN

Norma Stewart

Applicant/Respondent

and

Joe Crane

Respondent/Appellant

Patrick Di Monte, for the appellant

Marie G. Michaels, for the respondent

Heard & released orally:
November 25,
          2011

On appeal from the judgment of Justice Sherrill M. Rogers of
          the Superior Court of Justice dated July 16, 2010.

ENDORSEMENT

[1]

Rogers J. ordered Mr. Crane to pay Ms. Stewart costs in the amount of
    $22,263.24 plus HST.  The order was made following the disposition of jointly
    tried issues arising out of a
Partition Act
claim brought by Mr. Crane
    in relation to the couples former co-habited property and a
Family Law Act
application brought by Ms. Stewart.

[2]

In addition to the home, the issues raised included custody, child and
    spousal support (and the related issue of imputed income), interest in certain
    personal property, common liability for debts and a claim by Ms. Stewart to an
    interest of approximately $94,000 of investments owned by Mr. Crane.

[3]

Although there is a debate about the extent to which Ms. Stewart
    prevailed, the trial judge clearly viewed her to be the successful party.
    Rogers J. awarded costs on the basis that she had been 80% successful and
    applied that percentage to an amount that represented full recovery for the
    matters relating to the proceedings because she was of the view that Mr. Crane
    should have accepted an earlier offer to settle. Mr. Crane seeks to attack both
    of these determinations and adds that there should either no costs awarded or,
    if so, that they should be awarded to him.

[4]

We reject these submissions.

[5]

A cost award is a discretionary order in terms of both the amount to be
    paid, and by whom, and is subject to a very limited appellate review.  The
    court will only interfere if the trial judge has made an error in principle or
    if the cost award is plainly wrong: see
Hamilton v. Open Window Bakery Ltd
.,
    [2004] 1 S.C.R. 303 at para. 27, citing the decision of this court in
Duong

v. NN Life Insurance Co. of Canada
, (2001) 141 O.A.C. 307 at para. 14.

[6]

Here, there was ample support on the record for the trial judges 80%
    success conclusion and she was in a much better position to make that call
    than are we.  We see no basis to interfere.  There was ample support as well for
    her view that it was appropriate to take the earlier offer to settle into
    account: see Family Law Rules 18(16) and 24(5)(b).  We can find no error in
    principle on the part of the trial judge, nor do we think that the decision was
    wrong, much less clearly wrong.

[7]

Leave to appeal is therefore granted but the appeal is dismissed for the
    foregoing reasons.  Costs to the respondent are fixed in the amount of $5,000
    all inclusive.

J.C.
    MacPherson J.A.

J.M.
    Simmons J.A.

R.A.
    Blair J.A.


CITATION:
Sturm v. Wang, 2011 ONCA 731

DATE: 20111122

DOCKET: C53003

COURT OF APPEAL FOR ONTARIO

Laskin, Rosenberg and Rouleau JJ.A.

BETWEEN

Hermann Otto Sturm

Applicant (Respondent)

and

Xiaoyu (Sophie) Wang

Respondent (Appellant)

Jason Huang, for the appellant

R. Steven Baldwin, for the respondent

Heard and released orally:
November 16, 2011

On appeal from the order of Justice
          Heather A. McGee of the Superior Court of Justice, dated November 10, 2010.

ENDORSEMENT

[1]

On the record before us, we are not persuaded that the trial judge
    exercised her discretion unreasonably in refusing an adjournment.  After the
    adjournment was refused, the parties entered into minutes of settlements, which
    were approved by the trial judge.  In her affidavit, the appellant does not
    allege that the settlement was improvident.

[2]

On appeal her focus appears to be that she was not effectively
    represented by counsel.  She has filed an affidavit, which she seeks to
    introduce as fresh evidence.  However, she has not put her trial lawyer on
    notice.  Having not done so, we cannot entertain the appellants claim of
    ineffective assistance of counsel.  The appellants affidavit standing alone
    does not meet the test for fresh evidence.

[3]

The appeal is dismissed with costs fixed at $2,500, inclusive of
    disbursements and applicable taxes.

John Laskin J.A.

M. Rosenberg J.A.

Paul Rouleau J.A.


CITATION:
Title v. Canadian Asset
          Based Lending Enterprise (CABLE) Inc., 2011
ONCA 715

DATE: 20111115

DOCKET: C53396, C53398 and C53400

COURT OF APPEAL FOR ONTARIO

Sharpe, Juriansz and Watt JJ.A.

BETWEEN:

David Title

Plaintiff (Respondent)

and

Canadian
          Asset Based Lending Enterprise (CABLE) Inc., 7178255 Canada Inc.,

9208  9945
          Quebec Inc., Druker & Associates Inc., Allen Rubin,

Michael Leiberman, Fred Leiberman
          and Joel Leiberman

Defendants (Appellants)

Howard Borlack and Lisa LaHorey, for the appellants Druker
          & Associates Inc.

Jeffrey A.L. Kriwetz, for the appellants Canadian Asset Based
          Lending Enterprise Inc. and Allan Rubin

François Sauvageau, for the appellants 7178255 Canada
          Inc., 9208  9945 Quebec Inc., Druker & Associates Inc., Allen Rubin, Michael
          Leiberman, Fred Leiberman and Joel Leiberman

Michael Gayed, for the respondent

Heard:
October 18, 2011

On appeal from the order of Justice Frank J.C. Newbould of the
          Superior Court of Justice, dated February 9, 2011, with reasons reported at
          2011 ONSC 922.

Sharpe J.A.:

[1]

This appeal concerns the jurisdiction of the Superior Court of Justice
    of Ontario to entertain an action alleging a conspiracy to use fraudulent
    bankruptcy proceedings in Quebec to defeat the process of the Ontario courts.

FACTS

[2]

The respondent Title, plaintiff in the action that is the subject of
    this appeal (the second action), is an Ontario resident. The personal
    appellants, defendants in the same action, are Quebec residents, and the
    corporate appellants, also defendants, have their head offices in Quebec. The
    appellant Druker & Associates Inc. (Druker), also a defendant, is a
    Quebec trustee in bankruptcy.

[3]

The Quebec bankruptcy proceedings at the core of Titles claim involve
    two companies, 6048668 Canada Inc. (Sistek) and 2924218 Canada Inc.
    (Premier). Title is a shareholder and an officer of Sistek. On March 5, 2009,
    Title commenced an Ontario action against Sistek, Premier, and Fred and Joel
    Leiberman, shareholders and directors of Sistek and Premier. He alleges breach
    of contract and oppression and is seeking damages and shares in Premier (the
    first action).

[4]

Fred and Joel Leiberman, Sistek and Premier initially failed to defend
    the first action. Title set down a motion for partial default judgment, returnable
    May 7, 2009. Title also sought the appointment of a receiver as Canadian Asset
    Based Lending Enterprise (CABLE), a Sistek secured creditor, was entitled to
    enforce its security on the following day. Within a day of receiving notice of
    this motion, and without notice to Title, both Sistek and Premier made
    assignments in bankruptcy. Druker was appointed trustee. Within three weeks, a
    company newly formed by Fred and Joel Leiberman and their brother Michael, 9208-9945
    Quebec Inc. (9208), purchased Sistek and Premiers assets for $2.26, and
    assumed CABLEs debt. The appellant, 7178255 Canada Inc. (7178255), a company
    also controlled by the Leibermans, took over the operation of the business
    acquired by 9208 from the trustee.

[5]

Title alleges that Fred and Joel Leiberman, their brother Michael
    Leiberman, Druker (the trustee in bankruptcy for Sistek and Premier), CABLE and
    Allan Rubin (CABLEs president) conspired to bring fraudulent bankruptcy
    proceedings.

[6]

In January 2010, Fred and Joel Leiberman delivered a statement of
    defence and counterclaim in the first action, pleading, among other things,
    that they did everything they could to save Sistek and Premier from bankruptcy.
    In April, 2010, Title commenced the second action that is the subject of this
    appeal.

[7]

The appellants moved to have the second action dismissed on the basis that
    Ontario lacks jurisdiction to entertain the claim or to stay the action on the
    ground that Quebec is the more appropriate forum. Druker also moved to have the
    action dismissed on the ground that Title failed to obtain leave pursuant to s.
    215 of the
Bankruptcy and Insolvency Act
, R.S.C. 1985, c. B-3,

(BIA).
    The motion judge dismissed the motion, holding that: (1) there was a sufficient
    real and substantial connection between the claim and Ontario to support
    jurisdiction
simpliciter
; (2) the appellants failed to demonstrate that
    Quebec was a more appropriate forum; and (3) that the failure to obtain leave
    pursuant to the s. 215 of the BIA was a mere irregularity.

ISSUES

[8]

The issues raised on this appeal are:

(1)

Did the motion judge err in
    holding that Ontario had jurisdiction
simpliciter
to entertain the claim?

(2)

Did the motion judge err by
    refusing to stay the action on grounds of
forum non conveniens
?

(3)

Did the motion judge err by
    failing to stay the action against Druker on the ground that leave had not been
    obtained pursuant to s. 215 of the BIA?

ANALYSIS

(1)  Did the motion judge err in holding that
    Ontario had jurisdiction simpliciter to entertain the claim?

(a) Real and substantial connection

[9]

I see no error in the motion judges reasons for finding that Title
    satisfied the test for real and substantial connection established in
Van
    Breda v. Village Resorts Limited,
2010 ONCA 84, 98 O.R. (3d) 721. As the
    claim did not fall within any relevant enumerated categories of rule 17.02, the
    motion judge placed the onus of satisfying the
Van Breda
test on Title.

[10]

There was ample evidence to support the motion judges factual findings
    that the test had been satisfied.

[11]

There is a strong connection between the Titles claim and Ontario. Title
    is an Ontario resident who, when employed by Sistek, worked from his home in
    Ontario. The claim alleges a fraudulent conspiracy to deprive Title of the
    legal rights he asserts in the first action.

[12]

The defendants also have a strong connection with Ontario with respect
    to this matter. Although they are resident in Quebec, the personal appellants, Fred
    and Joel Leiberman, attorned to the first action in Ontario and are alleged to
    have conspired with the other appellants to, in effect, defeat the process of
    the Ontario courts. In my view, where a party conspires to defeat the process
    of the Ontario courts, that party has participated in something of
    significance or has been actively involved in Ontario and therefore can be
    reasonably brought within the embrace of Ontarios  jurisdiction:
Beals v.
    Saldanha,
2003 SCC 72,  [2003] 3 S.C.R. 416, at para 32;
Van Breda,
at para. 92.

[13]

In addition, 9028 and 7178255
,
successors to Sistek and Premier
,
sell

products and conduct a substantial volume of their business in
    Ontario. They have a senior officer and employee responsible for sales residing
    in Ontario. CABLE has also engaged in relevant activity in Ontario having taken
    security over Titles home in Ontario to secure a loan to Sistek and Premier.

[14]

On this record, the motion judge did not err in finding a real and
    substantial connection sufficient to justify the assertion of Ontario
    jurisdiction over the claim and against these defendants.

(b) Attornment

[15]

I also agree with the motion judges conclusion that Druker attorned to
    Ontario jurisdiction by asking the Ontario court to stay the proceedings
    against it on the ground that leave had not be obtained pursuant to s. 215 of
    the BIA. As the motion judge held, at para. 34, by asking the Ontario court to
    grant a stay under s. 215, Druker asked the court to assume jurisdiction to
    the extent necessary to enforce section 215 of the BIA and it would be
    inconsistent to do that and at the same time assert that the Court has no
    jurisdiction over the case: see
Wolfe v. Wyeth
, 2011 ONCA 347, 332
    D.L.R. (4
th
) 157, at para. 44;
Sauer v. Canada (A.G.)
(2006),
    79 O.R. (3d) 19 (S.C.J.), at para. 87;
M.J. Jones Inc. v. Kingsway General
    Insurance Co.
(2004), 72 O.R. (3d) 68 (Lang J.A. in chambers), at para. 20.

(c) Quebec bankruptcy proceedings.

[16]

While I agree with Drukers submission that the action against it should
    be stayed under s. 215 of the BIA unless and until leave to proceed against
    Druker has been obtained (a point to which I return below), I do not agree that
    Title is otherwise required to proceed in Quebec within, or on account of, the
    bankruptcy proceeding now pending in that province.

[17]

The remedy Title seeks in this Ontario action is damages against parties
    who, with the exception of Druker, are not even before the Quebec bankruptcy
    court. Title could therefore not claim damages against those parties in the Quebec
    bankruptcy proceedings.

[18]

Moreover, Title is not asking the Ontario Superior Court to nullify or
    set aside the Quebec bankruptcy proceedings. Title asserts a claim for damages
    that he alleges he suffered as a result of that bankruptcy. The bankruptcy is
    simply a factual ingredient to the cause of action Title asserts in Ontario. If
    Title succeeds with his Ontario claim that the Quebec bankruptcy was the result
    of a fraudulent conspiracy, that finding will have no legal effect on the
    Quebec bankruptcy. The Ontario proceedings do not amount to either a direct or
    a collateral attack on the Quebec bankruptcy. The principle expressed in
Garland v. Consumers Gas Co
., 2004 SCC 25, [2004] 1 S.C.R. 629,
at para. 72 and
Canada (Attorney General)

v. TeleZone Inc.,
2010 SCC 62, [2010] 3 S.C.R. 585, at
    para. 64
is apposite: where the specific
    object of a litigant is not to invalidate or render inoperative an order
made in another proceeding, but rather to recover money owed to the litigant as
    a result of the order, the doctrine of collateral attack does not deprive a
    court of jurisdiction.
TeleZone
stands as authority for the proposition
    that where the litigant seeks a monetary remedy in a provincial superior court,
    and does not seek to set aside or nullify the order of another tribunal that is
    subject to the jurisdiction of another court, the practical concern for access
    to justice prevails.  The litigant should not be put through the unnecessary
    expense and inconvenience of setting aside the order simply as a preliminary
    step to pursuing the claim for damages.

[19]

I hasten to add, however, that I express no view, one way or the other,
    as to any substantive defence any of the appellants may have to Titles claim
    that may arise from the Quebec bankruptcy proceedings. I am dealing strictly
    with the issue of jurisdiction.

(2)  Did the motion judge err by refusing to stay
    the action on grounds of
forum non conveniens
?

[20]

I see no error in the motion judges analysis of
forum non conveniens
.
    In particular, I agree that the appellants failed to demonstrate that Quebec is
    clearly a more appropriate forum for this action. I agree with the motion
    judges conclusion that if Title were forced to sue in Quebec, the result would
    be a multiplicity of proceedings on closely related issues.

(3)  Did the motion judge err by failing to stay
    the action against Druker on the ground that leave had not been obtained
    pursuant to s. 215 of the
Bankruptcy and Insolvency Act
?

[21]

The BIA, s. 215 provides:

Except by leave of the
    court, no action lies against the Superintendent, an official receiver, an
    interim receiver or a trustee with respect to any report made under, or any
    action taken pursuant to, this Act.

[22]

I agree with the motion judges conclusion that failure to obtain leave
    is an irregularity that can be cured: see
New Alger Mines Ltd. v. Thorne
    Riddell

Inc.,
(1986), 54 O.R. (2d) 562 (C.A.). However, until that
    irregularity has been cured, the action cannot proceed in the face of s. 215. It
    follows, in my respectful view, that the motion judge erred by failing to grant
    a stay of the action against Druker unless and until the court grants leave
    pursuant to s. 215.

[23]

I would add that it is my view that the court refers to the court with
    jurisdiction over the bankruptcy proceedings, namely the Quebec Superior Court.
    Court is defined in s. 1, with exceptions not relevant here, as a court
    referred to in subsection 183(1) or (1.1) or a judge of that court, and
    includes a registrar when exercising the powers of the court conferred on a
    registrar under this Act.  Section 183(1.1) provides

In the Province of Quebec, the
    Superior Court is invested with the jurisdiction that will enable it to
    exercise original, auxiliary and ancillary jurisdiction in bankruptcy and in
    other proceedings authorized by this Act during its term, as it is now, or may
    be hereafter, held, and in vacation and in chambers.

The Ontario Superior Court of Justice has the same
    jurisdiction by virtue of s. 183(1). However, when read in the context of the BIA

as a whole, the reference to
the
court in s. 215 (rather than
a
court) indicates that it is the court having general control and superintendence
    of the bankruptcy that must grant leave to allow a suit against a trustee to
    proceed.

DISPOSITION

[24]

Accordingly, I would allow Drukers appeal, but only with respect to a
    stay pursuant to s. 215 of the BIA. The appeals of the other appellants are
    dismissed.

[25]

The motion judge awarded Title costs fixed at $35,000 payable jointly
    and severally by the appellants. In view of the result on appeal, I would award
    Title costs of $50,000 inclusive for the motion and the appeal against all
    parties except Druker on a joint and several basis. Given Drukers partial
    success, I would award Druker costs of $25,000 inclusive for the motion and the
    appeal as against Title.

Robert J. Sharpe J.A.

I agree R.G. Juriansz
    J.A.

I agree David Watt
    J.A.

RELEASED: November 15, 2011


CITATION:
Waskowec v. Cramahe (Municipality), 2011 ONCA
          744

DATE: 20111125

DOCKET: M40442 (M40142)

COURT OF APPEAL FOR ONTARIO

Feldman, Sharpe and Simmons JJ.A.

BETWEEN

Peter Waskowec

Applicant

Ex Parte

and

The Municipality of the Township of Cramahe

Nominal

Peter Waskowec, in person

Ex Parte

Heard and released orally: November 22, 2011

On a review of the decision of Justice Eleanore Cronk of the
          Court of Appeal for Ontario dated June 10, 2011.

ENDORSEMENT

[1]

The appellant is before the court on an
ex parte
basis seeking to
    review the decision of Cronk J.A. dated June 10, 2011.  In her endorsement,
    Justice Cronk dismissed Mr. Waskowecs motion for a police investigation.  He
    is apparently seeking to appeal an order of Justice Salmers that told the
    appellant he could not bring matters forward
ex parte
and that he must
    serve the municipality in the type of proceeding he seeks to bring.

[2]

Cronk J.A. noted that there is no Notice of Appeal filed so that the
    appellant did not properly appeal nor did he comply with the order of J Salmers
    J.  Cronk J.A. held that she had no jurisdiction to hear the motion and
    dismissed it.  Cronk J.A. was correct in her decision.  The review of her order
    is dismissed.

Signed:           K. Feldman J.A.

Robert J. Sharpe J.A.

Janet Simmons J.A.


CITATION:
Xseed JKS, Inc. v. Ditan/Synergex Solutions Canada
          Inc., 2011 ONCA 721

DATE: 20111117

DOCKET: C53661

COURT OF APPEAL FOR ONTARIO

Laskin, Rosenberg and Rouleau JJ.A.

BETWEEN

Xseed JKS, Inc.

Plaintiff (Respondent)

and

Ditan/Synergex Solutions Canada Inc.

Defendant (Appellant)

David Brand, for the appellant

Paul V. McCallen, for the respondent

Heard: November 15, 2011

On appeal from the judgment of
          Justice James M. Spence of the Superior Court of Justice, dated April 5,
          2011.

APPEAL BOOK ENDORSEMENT

[1]

The debt was acknowledged.  We agree with Spence J. that there were no
    genuine issues requiring a trial.

[2]

The appeal is dismissed with costs in the agreed on amount of $7,500,
    inclusive of disbursements and applicable taxes.


CITATION:
Zenteno v. Ticknor, 2011 ONCA 722

DATE: 20111118

DOCKET: C52310

COURT OF APPEAL FOR ONTARIO

MacPherson and LaForme JJ.A. and Hackland J. (
ad hoc
)

BETWEEN

Lina Jeannette Ruiz Zenteno

Applicant/Respondent

and

David John Ticknor

Respondent/Appellant

Chris Argiropoulos, for the appellant

Mark D. Staats, for the respondent

Heard and released orally:
November 17,
          2011

On appeal from judgment of Justice John Cavarzan of the
          Superior Court of Justice, dated May 20, 2010.

ENDORSEMENT

[1]

Because he did not fulfill certain undertakings, the appellants
    pleadings were struck and the matter proceeded as a default judgment hearing.
    The only witnesses at the hearing were Ms. Zenteno and her sister.

[2]

The application judge awarded Ms. Zenteno a lump sum payment for spousal
    support in the amount of $193,385 to be secured by a charge on the property
    owned by the appellant and a 2002 automobile to be transferred to her
    absolutely in the amount of $6,615 which is to be deducted from the lump sum
    award.

[3]

The sole issue on this appeal was the correctness of the trial judges order
    of a lump sum payment for spousal support and a securing of that order by way
    of charge against the appellants solely owned property.

[4]

Both parties agree, as do we, that this courts recent decision in
Davis
    v. Crawford
, 2011 ONCA 294 provides the principal
    authority for this appeal.  And, as
Davis
reminds us, appeal courts will
    not interfere with support orders unless the reasons disclose an error in
    principle, a significant misapprehension of the evidence or unless the award is
    clearly wrong.

[5]

In this case, there was sufficient evidence, limited as it was given the
    circumstances, upon which the application judge could order the lump sum
    payment he did.  In particular, his review of the evidence of the appellants
    abusive behaviour, intention not to pay spousal support and probable non-compliance
    with a court order were all supported by the evidence before him.

[6]

Accordingly, the appeal is dismissed.  Costs are payable to the
    respondent fixed at $4,000 inclusive of disbursements and HST, payable to Legal
    Aid Ontario.

J.C. MacPherson
    J.A.

H.S. LaForme
    J.A.

Charles Hackland J. (
ad hoc
)


CITATION:
Zeppieri & Associates v. Aslan, 2011 ONCA 756

DATE:  20111129

DOCKET: C53746

COURT OF APPEAL FOR ONTARIO

Doherty, Armstrong JJ.A. and Hoy J. (
ad hoc
)

BETWEEN

Zeppieri & Associates

Solicitors (Appellants in Appeal)

and

Merry Aslan

Client (Respondent in Appeal)

Gregory Gryguc, for the solicitors (appellants)

Danny Kastner, for the client (respondent)

Heard:
November 28, 2011

On appeal from the order of Justice Conway of the Superior
          Court of Justice dated April 29, 2011.

APPEAL BOOK ENDORSEMENT

[1]

This is a second appeal from the decision of the assessment officer.  He
    reduced the solicitors fees by virtue of their failure to make the costs
    consequences of the tactics being insisted upon by the client, clear to the
    client.  It is agreed that the failure to adequately advise the client of the
    costs consequences can properly be factored into the assessment decision.
    Counsel for the solicitors submit, however, that the assessment officers
    finding is unreasonable and contrary to all of the evidence.

[2]

The motion judge rejected this submission and so do we.  No doubt, the
    steps taken by counsel would in many cases be sufficient, however, the specific
    circumstances of this case, and in particular this client, were found by the
    assessment officer to require extra efforts to make the harsh realities of the
    costs consequences clear to the client.  The assessment officer found that the
    consequences were not made clear to this client.  That finding was not
    unreasonable.

[3]

The appeal is dismissed.  Costs to the respondent in the amount of
    $4,000 all in.


CITATION: 3574423 Canada
    Inc. v. Imvescor Restaurants Inc., 2011 ONCA 800

DATE:  20111216

DOCKET: M40648-C53641

COURT OF APPEAL FOR ONTARIO

OConnor A.C.J.O., Laskin and Cronk JJ.A.

BETWEEN:

3574423 Canada Inc., Redwood Grille  Orlando, L.L.C.,
          Unique Hospitality, L.L.C., George Bozikis and Spiro Bozikis

Appellants

and

Imvescor Restaurants Inc. and PDM Royalties Limited
          Partnership

Respondents

Ian N. Roher and David S. Altshuller, for the
          appellants/responding parties

Randy C. Sutton and Rahool P. Agarwal, for the
          respondents/moving parties

Heard and released orally: December 12, 2011

ENDORSEMENT

[1]

The motion judge concluded that as a pure
    question of law s. 16.2 of the franchise agreement is not ambiguous (para. 53).
    The respondents concede that this finding is final.  Thus, it is properly
    appealable to this court.

[2]

The balance of the matters raised in the
    proposed fresh amended notice of appeal are interlocutory.  Having disposed of
    the question of law referred to above, the motion judge made it clear that he was
    considering the remaining issues pursuant to the appellants motion for partial
    summary judgment under Rule 20.

[3]

The motion judge dismissed the Rule 20 motion on
    the basis the appellants failed to show that there were no genuine issues
    requiring a trial.  His findings on the motion related only to the genuine
    issue requiring a trial test.  He did not finally determine any of the issues
    that formed part of the Rule 20 motion.

[4]

Thus, none of the motion judges findings, other
    than the one referred to in para. 1 above, may form the basis for a plea of
res
    judicata
should this matter proceed to trial.

[5]

The motion is granted.

[6]

Costs are fixed in the amount of $5,000,
    inclusive of disbursements and applicable taxes.

D. OConnor A.C.J.O.

John I. Laskin J.A.

E.A. Cronk J.A.


CITATION:
Aksman v. Shenderey, 2011 ONCA 816

DATE: 20111222

DOCKET: C52405

COURT OF APPEAL FOR ONTARIO

OConnor A.C.J.O., Laskin and Cronk JJ.A.

BETWEEN

Inna Aksman

Applicant (Respondent)

and

Felix Shenderey

Respondent (Appellant)

Gary Joseph and K. Younie, for the appellant

Carol A. Bargman, for the respondent

Heard:
December 14, 2011

On appeal from the order of Justice
          Craig Perkins of the Superior Court of Justice, dated June 18, 2010, with
          reasons reported at 2010 ONSC 3559, and the costs order dated November 5,
          2010, with reasons reported at 2010 ONSC 6127.

ENDORSEMENT

[1]

Mr. Shenderey makes three submissions on this appeal.  First, he submits
    that the trial judge erred in his monetary award for unjust enrichment.
    Second, he submits that the trial judge erred in awarding lump sum spousal
    support.  And third, he submits that the trial judges costs award is
    excessive.

[2]

We decline to give effect to any of these submissions.

1.
The Award for Unjust Enrichment

[3]

The trial judge awarded Ms. Aksman $298,000,
    plus pre-judgment interest on her claim for unjust enrichment.  This award has
    two components: direct financial contributions and compensation for the
    provision of domestic services.

[4]

The trial judge found that Ms. Aksmans
    financial contributions between 1999 and 2005 amounted to $200,000.  He also
    found that over that period of seven years, she provided domestic services
    worth $98,000.  These findings were grounded in the evidence, especially in the
    detailed evidence and record keeping of Ms. Aksman, which the trial judge
    accepted.  Mr.
Shenderey does not challenge these findings but argues
    that the trial judge failed to consider three set-offs:

·

Mr.
Shendereys contributions in the
    first four years of their relationship, which the trial judge held either
    matched or exceeded those of Ms. Aksman;

·

Mr. Shendereys contributions to the payment of the credit card
    debts; and

·

Ms. Aksman benefitted from living in Mr. Shendereys house
    rent-free for one year after the parties separated.

[5]

As we read the trial judges reasons, he did
    take these set-offs into account.

[6]

The trial judge did not specifically analyze
    whether Mr.
Shendereys contributions exceeded those of Ms. Aksman
    during the period 1994 to 1998, the first four years of their relationship.
    However, the trial judge gave very detailed reasons, and reading those reasons
    as a whole, we think it implicit that he was satisfied no set-off was required.

[7]

On the credit card contributions, the trial judge found at para.
    67 of his reasons that many of the credit card purchases went into Mr.
    Shendereys business and the home, both of which he owned.

[8]

Finally, the trial judge took into account Ms. Aksmans year of rent-free
    accommodation by not awarding her the spousal support that she would otherwise have
    been entitled to for that period.

[9]

Accordingly, the appeal from the award for unjust enrichment must
    fail.

2.
Lump Sum Spousal Support

[10]

The trial judge was entitled to order lump sum
    support.  These orders are discretionary and case specific, and can be justified
    by a wide variety of circumstances: see
Davis v. Crawford
, 2011 ONCA
    559, 106 O.R. (3d) 221, at paras. 66 to 67.

[11]

Here, the trial judges reasons at para. 101 of
    his decision provide an adequate foundation for the lump sum order.  As
Davis
    v. Crawford
requires, the trial judge weighed the advantages of a lump sum
    payment against its disadvantages.  For example, as Ms. Bargman pointed out,
    Ms. Aksman testified that Mr.
Shenderey was chronically late in his
    support payments.

[12]

We therefore have no basis to interfere with the exercise of the
    trial judges discretion in making the lump sum award.  This ground of appeal
    fails.

[13]

We add, however, that effect should be given to the second
    sentence at para. 103 of the trial judges reasons.
[1]

3.
Costs

[14]

Costs awards, of course, are discretionary.
    Appellate interference is rarely warranted.

[15]

Here, the trial judge gave thorough reasons for
    his costs award.  Ms. Aksman sought costs of $228,000.  The trial judge found
    that her request was excessive.  He awarded her costs of $131,000 (inclusive of
    disbursements).  We are not persuaded that this award is unreasonable or plainly
    wrong.  Several considerations support our opinion.

[16]

First, the trial judge properly took into
    account the length of the trial.  Second, the trial judge noted that Ms.
    Aksmans recovery exceeded her offer to settle, made seven weeks before trial.
    Third, the trial judge carefully perused counsels bill of costs, and for
    example, substantially reduced the amount sought for the expert accountant and
    for pre-trial proceedings.

[17]

For these reasons, leave to appeal costs is
    denied.

[18]

The appeal is accordingly dismissed, with costs fixed
    at $10,000, including disbursements and applicable taxes.

D. OConnor A.C.J.O.

John Laskin J.A.

E.A. Cronk J.A.

[1]

Where he stated:
Credit is to be given for all sums
    paid to the applicant, but net of any tax she paid on them.


CITATION:
Almrei v. Canada (Attorney General), 2011
          ONCA 779

DATE: 20111213

DOCKET: M40628 (C53707)

COURT OF APPEAL FOR ONTARIO

Rosenberg, Cronk and Watt JJ.A.

BETWEEN

Hassan Almrei

Respondent (Appellant in Appeal)

and

The Attorney General of Canada

Moving Party (Respondent in Appeal)

Paul J. Evraire, Q.C. and Marianne Zoric, for the Attorney
          General of Canada, the Moving Party

Lorne Waldman and David Baker, for the respondent Hassan
          Almrei

Heard: December 5, 2011

ENDORSEMENT

[1]

The respondent Attorney General of Canada brings this motion to quash
    Mr. Almreis appeal from the decision of Lederman J. dismissing a motion
    for partial summary judgment. In many circumstances, a decision dismissing a
    motion for full or partial summary judgment will be interlocutory because the
    merits of the claim remain to be tried: see
Cole v. Hamilton (City)
(2002), 60 O.R. (3d) 284 (C.A.). This court, however, has identified
    circumstances in which dismissal of a motion for summary judgment will
    constitute a final order and thus may be appealed to this court. We conclude
    that the order of the motion judge in this case is a final order.  Accordingly,
    the motion to quash the appeal is dismissed.

[2]

The appellant has brought an action for damages alleging, among other
    things, negligent investigation, false imprisonment and breaches of ss. 7, 9
    and 12 of the
Canadian Charter of Rights and Freedoms
. His claim arises
    out of the actions of state actors in relation to security certificates issued
    under the
Immigration and Refugee Protection Act
, S.C. 2001, c. 27.  The
    appellant was subject to two security certificates, one issued on October 19,
    2001 and a second one on February 22, 2008, and was held in custody for many
    years.  In lengthy public reasons reported at 2009 FC 1263, Mosley J. found
    that the 2008 certificate was unreasonable and he quashed it. Mosley J. held a
    38‑day hearing. Parts of that hearing were held
in camera
or
ex
    parte
. In addition to the lengthy public reasons, Mosley J. also gave
    secret reasons, to which the appellant has never had access.

[3]

In the motion before Lederman J., the appellant sought partial summary
    judgment on the basis of issue estoppel. He argued, in effect, that the parties
    were bound by the findings made by Mosley J. that made out all or most of the
    elements of the causes of action. Lederman J. noted the unusual nature of this
    use of issue estoppel:

What is novel about this rule 20 motion is that the
    plaintiff is attempting to invoke the doctrine of issue estoppel as a sword to
    obtain a summary judgment rather than its traditional use as a shield or a
    defence to preclude further litigation on issues that have already been decided
    between the parties.

[4]

It is the novel nature of the appellants use of issue estoppel and the
    unusual context in which this case arises that convinces us that the order of
    Lederman J. is final. The effect of Lederman J.s decision is to finally
    determine the question of issue estoppel and prevent the appellant from using
    the findings of fact made by Mosley J. in his action against the Attorney
    General. The moving party submits that the order is not final, because it is
    still open to the appellant to prove his case by calling evidence at his trial,
    without relying on the findings of Mosley J. That submission, however, overlooks
    the nature of the hearing conducted by Mosley J., which involved hearing
    evidence that the appellant may never be in a position to call or to even
    access. Depriving the appellant of the ability to use the findings of fact by
    Mosley J. could deprive the appellant of substantive rights.

[5]

The final nature of the order in this case is demonstrated in the
    position of the Attorney General that the question of issue estoppel is now
res
    judicata
. According to the Attorney General, it is not open to the
    appellant to relitigate the use of Mosley J.s findings at the trial. A
    hallmark of an order dismissing a motion for summary judgment is that findings
    are not
res judicata
:  see, for example,
Leone v. University of
    Toronto Outing Club
, 2007 ONCA 323 at para. 2:

An order dismissing a motion for summary judgment
    brought under Rule 20 is not a final order in that it determines only that
    there are genuine issues for trial. Consequently, any apparent findings of fact
    made by this motion judge in the course of his reasons for dismissing the
    motion for summary judgment do not support a
res judicata
or issue
    estoppel claim in the subsequent proceedings: see
V.K. Mason Construction
    Ltd. v. Canadian General Insurance Group Limited
(1998), 42
    O.R. (3d) 618
(C.A.).

[6]

Where, however, the order is
res judicata
, the order may be final:
    see
Stoiantsis v. Spirou
, 2008 ONCA 553 at para. 26:

Further support for this conclusion is found by
    resort to the doctrine of
res judicata.
To determine whether an order is
    final or interlocutory, courts often consider whether the issue can be said to
    be
res judicata
: see
S.(R.) v. H.(R.)

(2000), 52
    O.R. (3d) 152
at paras. 19-21 (C.A.). Even though some orders only
    partially resolve issues between the parties, if the resolution of the
    particular question would give rise to an argument of
res judicata
, then
    the order is final despite other issues remaining outstanding.

[7]

In this case, the appellant singled out for resolution the question of
    use of issue estoppel. A finding that issue estoppel is not available is a
    final determination of that issue of law. The decision of the motion judge has arguably
    deprived the appellant of a substantive right that could have been entirely determinative
    of the Attorney Generals liability: see
Stoiantsis v. Spirou
at para.
    25. The decision of Taggart J.A. in
Peerless Carpet Corp. v. Desjarlias,
[1987] B.C.J. No. 1555 is somewhat analogous to this case, although in
Peerless
    Carpet
the defendant was attempting to use issue estoppel in the more usual
    way, as a shield rather than a sword. As Taggart J.A. said, at p. 3 (Q.L.):

As I view the order of Mr. Justice Davies now
    under appeal, it does finally dispose of the rights of the parties insofar as
    they are based upon the applicability of the doctrine of
res judicata
.
    As I see it, neither the plaintiff nor the defendants in the trial proceedings
    which are now in the Supreme Court, can raise the question of
res judicata
.
    The trial judge would be bound to give effect to the judgment of Mr. Justice
    Davies on that issue. The rights of the parties based on the single issue of
res
    judicata
have finally been disposed of.

[8]

Accordingly, the motion to quash is dismissed. The appellant is entitled
    to his costs of the motion fixed at $5,000, inclusive of disbursements and all
    applicable taxes.

Signed:           M. Rosenberg J.A.

E. A. Cronk J.A.

David Watt J.A.


CITATION:
Bennett v. Bennett, 2011 ONCA 822

DATE: 20111222

DOCKET: C53900 & C54175

COURT OF APPEAL FOR ONTARIO

Laskin and Epstein JJ.A. and Pardu J. (
Ad Hoc
)

BETWEEN

Cathy Jane Bennett

Applicant (Respondent)

and

Charles Murray Bennett

Respondent (Appellant)

Gil D. Rumstein, for the appellant

Donald R. Good, for the respondent

Heard and released orally:
December 9, 2011

On appeal from the order of Justice Michael J. Quigley of the
          Superior Court of Justice, dated May 27, 2011 and August 2, 2011.

ENDORSEMENT

[1]

We dismiss the appeal from the summary judgment granted by Quigley J. on
    May 27, 2011.  We agree with counsel for Ms. Bennett that the parties cannot
    maintain the farm.  This financial imperative requires that the property be
    sold.

[2]

We allow in part Mr. Bennetts appeal from the order of Quigley J. dated
    August 2, 2011.  Mr. Bennett shall be entitled to amend his claim except that
    he shall not be entitled to assert a claim for a vesting order or a proprietary
    remedy.

[3]

Paragraph 4 of the order of Juriansz J.A. dated September 8, 2011
    staying the order for exclusive interim possession is continued.  This
    continuation of the stay is subject to the following two terms:

(1)

Ms. Bennett may attend at the property on reasonable notice to assess
    its condition and take any necessary steps to pursue the sale of the property;

(2)

Should Mr. Bennett fail to take all reasonable efforts to cooperate with
    the real estate agent, then Mrs. Bennett shall be entitled to move in the
    Superior Court for appropriate relief.

[4]

Ms. Bennett is entitled to her costs of the appeal and the motion before
    Juriansz J.A., which we fix in the amount of $5,000, inclusive of disbursements
    and applicable taxes.

John Laskin J.A.

G.J. Epstein J.A.

G. Pardu J. (ad hoc)


WARNING

THIS IS AN APPEAL UNDER THE

CHILD AND FAMILY SERVICES ACT

AND IS SUBJECT TO S. 45 OF THE ACT WHICH PROVIDES:

45. (7)
The court may make an
    order,

(a)       excluding a particular media representative from all
    or part of a hearing;

(b)       excluding all media representatives from all or a
    part of a hearing; or

(c)       prohibiting the publication of a report of the
    hearing or a specified part of the hearing,

where the court is of the opinion that the presence of the
    media representative or representatives or the publication of the report, as
    the case may be, would cause emotional harm to a child who is a witness at or a
    participant in the hearing or is the subject of the proceeding.

45. (8)
No person shall publish or make public information that has the
    effect of identifying a child who is a witness at or a participant in a hearing
    or the subject of a proceeding, or the childs parent or foster parent or a
    member of the childs family.

45. (9)
The court may make an order prohibiting the publication of
    information that has the effect of identifying a person charged with an offence
    under this Part.

CITATION:
Childrens Aid Society of Brant v. J.W., 2011
          ONCA 838

DATE: 20111223

DOCKET: C54343

COURT OF APPEAL FOR ONTARIO

Sharpe, Blair and Rouleau JJ.A.

BETWEEN

The Childrens Aid Society of Brant

Appellant (Respondent in Appeal)

and

J.W.

Respondent (Respondent in Appeal)

and

D.L.

Respondent (Appellant)

Birkin Culp and Cristina
          Delion-Culp, for D.L.

Vanessa Kaljaste, for Childrens
          Aid Society of Brant

Catherine Bellinger, for the
          Office of the Childrens Lawyer

Heard & released orally:
December 21,
          2011

On appeal from the order of Justice Jane Milanetti of the
          Superior Court of Justice dated August 19, 2011.

ENDORSEMENT

[1]

This is an appeal from an order dismissing on grounds of delay the
    appellants appeal to the Superior Court from a decision of the Ontario Court
    of Justice granting the Childrens Aid Society permanent wardship of the
    appellants two children.

[2]

The children were apprehended in May 2008.  The younger child, a boy now
    five years old, is in a home awaiting completion of permanent wardship
    proceedings to permit adoption by that family.  The older child, a girl now 12,
    has special needs and is presently in a facility meeting her needs.

[3]

The appellant has not perfected his appeal because no transcripts have
    been prepared.  The Children Aid Society brought two motions to dismiss for
    delay.  Those motions led to directions to the appellant regarding the
    transcripts, but due to a combination of insufficient action on the part of the
    appellant and his counsel and a regrettable level of apparent confusion on the
    part of Court Services, we are still without any progress in the preparation of
    the transcripts.

[4]

We are now well beyond the statutory limit for temporary wardship.
    While we agree that the appellant is not solely responsible for the delay, we
    are not prepared to interfere with the motion judges finding that, given the
    paramount concern of the interest of these children and the need for stability
    and permanency in their lives, his appeal was not prosecuted with adequate
    dispatch.

[5]

Of particular concern to us in this case is that the appeal has
    virtually no prospect of success.  The first two grounds relate to the fact
    that the trial judge conducted a settlement conference in 2002 in an earlier
    Child Protection Proceeding and that the trial judge sentenced the appellant in
    a criminal matter in 2008.  The appellant did not raise these objections before
    the trial judge at trial.  In any event, we see no merit in the argument that
    the trial judges prior involvement with the appellant in different proceedings
    resulted in any prejudice to him in this proceeding.  Trial judges frequently
    encounter repeat litigants.  We see nothing in this record to indicate that the
    actions complained of deprived the appellant of a fair or unbiased trial.

[6]

There is no evidence to support the ground of appeal relating inadequate
    assistance of counsel.

[7]

Finally, the appellant attacks the factual findings of the trial judge on
    the ground that he misunderstood or failed to heed the evidence of Dr. Sharma.
    The trial judges reasons indicate that he did consider Dr. Sharmas evidence
    and that he recognized that with treatment, the appellant was controlling his
    behaviour.  Moreover, even if the appellants illness is in remission, as he
    submits, the findings of the trial judge that he has inadequate parenting
    skills and an inadequate parenting plan are fatal.  Those findings are not
    attacked as having been made without support in the evidence and make success
    on this appeal virtually impossible.

[8]

Accordingly, the appeal is dismissed.

Robert J. Sharpe J.A.

R.A. Blair J.A.

Paul Rouleau J.A.


CITATION:
Clarke (Re), 2011 ONCA 774

DATE: 20111208

DOCKET: C53955

COURT OF APPEAL FOR ONTARIO

Laskin and Feldman JJ.A. and Himel J. (
Ad Hoc
)

IN THE MATTER OF: James Clarke

James Clarke, appearing in person

Anita Szigeti, as
amicus curiae

Scott Latimer, for the Attorney General

Julie Zamprogna, for the Regional Mental Health Care St.
          Thomas

Heard:
December 7, 2011

On appeal against the disposition of the Ontario Review Board,
          dated June 16, 2011.

APPEAL BOOK ENDORSEMENT

[1]

Mr. Clarke appeals the order of the Ontario Review Board under which he
    continues to be detained in a medium secure unit.  He asks for an order that he
    be transferred to a minimum secure unit with community privileges or that we
    make a hybrid order.

[2]

In order to interfere with the Boards order, we must be persuaded that
    it is unreasonable.  We cannot say that the Boards order is unreasonable.
    Although the Board could have given fuller reasons for rejecting a hybrid
    order, the evidence in the record supports its disposition.

[3]

Mr. Clarkes treating psychiatrist testified that he is a high risk to
    reoffend; at the time of the hearing he had been at St. Thomas Care for three
    months; and he has yet to undergo psychiatric testing.  The fresh evidence
    filed before us further supports the Boards disposition.

[4]

The appeal is dismissed.