COURT OF APPEAL FOR ONTARIO

CITATION: Gillham v. Lake of Bays (Township), 2018 ONCA 667

DATE: 20180727

DOCKET: C64532

Rouleau, Roberts and Fairburn JJ.A.

BETWEEN

Jack Gillham and Heather Gillham

Plaintiffs (Appellants)

and

The Corporation of the Township of Lake of
    Bays
,
Royal Homes Limited
and

J.D. MacKay o/a MacKay Construction

Defendants (
Respondents
)

David A. Morin, for the appellants

Stuart Zacharias, for the respondent, The Corporation of
    the Township of Lake of Bays

David Thompson, for the respondent, Royal Homes Limited

Heard: May 7, 2018

On appeal from the judgment of Justice Edward J. Koke of the
    Superior Court of Justice dated October 3, 2017, with reasons reported at 2017
    ONSC 5879.

Roberts J.A.:

A.

Overview

[1]

This appeal involves the discoverability of claims for damages arising
    out of construction deficiencies. The question for determination on this appeal
    is whether the motion judge erred by finding that the appellants claims were
    statute-barred because they were discoverable more than two years before the
    appellants issued their statement of claim.

[2]

The appellants appeal from the dismissal of their
    action. The respondents successfully moved for summary judgment of the
    appellants action against them on the basis that the applicable two-year limitation
    period under s. 4 of the
Limitations Act, 2002
,
    S.O. 2002, c. 24, Sched. B, (the Act), had expired.
[1]

[3]

The appellants assert that the motion judge erred in
    his approach to discoverability, specifically, that he erred in finding that by
    2009 the appellants had all the material facts they needed to start a claim
    against all of the defendants.

[4]

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

B.

Factual background

[5]

The appellants action against the
    respondents arises out of alleged deficiencies in the construction of their prefabricated
    cottage. In May of 2006, J.D. MacKay excavated the foundation, the pier
    footings for the deck, and constructed and backfilled a stacked rock retaining
    wall. The purpose of the stone retaining wall was to ensure that the foundation
    of the cottage had the necessary depth of backfill to satisfy the requirement
    for frost protection for a foundation wall prescribed by Ontarios
Building
    Code
, O. Reg. 332/12. Royal Homes Limited constructed
    the footings and foundation for the cottage and deck, then assembled the
    prefabricated cottage and deck, completing its work in July 2006.

[6]

The appellants allege that the
    construction of the foundation of the cottage and the stone retaining wall was
    negligent because they were built on loose soil, which caused them to migrate
    down the slope of the property. The appellants plead that the
Corporation
    of the Township of Lake of Bays
was negligent in its
    oversight and approval of the construction of the cottage foundation and the stone
    retaining wall.

[7]

The
appellants first noticed a
    problem with one of the deck piers in the summer of 2009. Specifically, they observed
    that one of the deck piers at the northeast corner of the deck behind the stone
    retaining wall had sunk about 1 ¼ inches, pullin
g the
    deck post away from the cottage. They were initially concerned that the big
    foot sono tubes supporting the deck posts had not been installed to a
    sufficient depth.

[8]

The appellants approached Royal Homes
    seeking warranty assistance. Royal Homes initially advised the appellants that
    these issues had nothing to do with the cottage construction because it was a
    slope problem and that these issues were not serious in any event. It then
    suggested that the sinking deck pier did not appear to be caused by the pier installation
    but that the stone retaining wall erected by J.D. MacKay behind the deck seemed
    to be settling and pulling the deck pier with it. On Royal Homes recommendation,
    the appellants subsequently retained Trow Associates Inc., a structural
    engineering firm, to investigate.

[9]

In its September 2009 report, Trow confirmed
    that the problem to be investigated was that:  the northeast corner of the
    deck is experiencing some settlement.  The focus of Trows investigation and
    report was on determining the appropriate course of action required to provide
    a solution to the settlement issues associated with the deck.  Trow identified
    a localized slope failure and/or localized consolidation of the underlying
    soils occurring at the north east corner of deck as the root problem,
    indicating that [t]he weight that was added by the construction of the stone
    retaining wall and the backfill that was placed behind it to raise the grade
    appears to be causing a failure of the lower retaining structure, causing it to
    move laterally towards the northeast. With respect to the cottage, Trow also
    noted that while this does not appear to have affected the dwelling yet, there
    is a hairline crack (less than 1 mm in width  typical of shrinkage cracks) in
    the basement floor that is located in the northeast corner of the basement.

[10]

Trow recommended several expensive investigative
    and remedial steps, including the removal of the stone retaining wall and the
    reconstruction of the deck pier foundations.  With the removal of the stone retaining
    wall, the grade against a portion of the foundation would be lowered and,
    because of frost, the underpinning of a portion of the dwelling foundation at a
    lower elevation would be required.  They also recommended further slope
    stability investigation. However, it cautioned that undertaking these steps
    will not guarantee that there will not be any further movement of the slopes
in
    this area
 [emphasis added] but that it should significantly slow the
    progress of any movement. Trow did not suggest that the stone retaining wall constructed
    by Mr. MacKay was failing

nor that there
    were any construction issues with the stone retaining wall or the cottage
    foundation.

[11]

The appellants discussed the problems with
    Mr. MacKay. His view was that these types of retaining walls often settled
    a bit. He told the appellants that they should just monitor the situation and
    wait and see if the stone retaining wall found its own level over the next
    year or two. As a result, the appellants took no further steps at that time.

[12]

Having watched the problems continue, the
    appellants retained Fowler Construction Company Ltd. to inspect the property in
    2012. Fowler recommended that a soil study be undertaken. Terraprobe Inc.
    conducted the study. In their report dated July 30, 2012, Terraprobe concluded
    that the stone retaining wall was failing and recommended that it be removed
    and reconstructed. In its report, Terraprobe opined that the wall and backfill
    materials have moved due to some construction issues. Specifically, Terraprobe
    stated that the wall had been built on very loose sand and fill without
    adequate support of the wall base/toe from the downgrade slope. Terraprobe
    recommended that it must be confirmed that the deck piers and house
    foundations are placed on native, undisturbed soils and/or bedrock capable of
    supporting the design loads. When Fowler commenced the remedial work in 2013,
    it discovered that the cottage foundation and footings had also been
    constructed on loose soil.

[13]

The appellants commenced their action
    on October 21, 2013.

[14]

In allowing the respondents motion for
    summary judgment and dismissing the appellants action as statute-barred, the
    motion judge concluded that the appellants knew or should have known in 2009
    that there were some problems with the construction of their cottage, with or
    without the Trow report.

C.

Analysis

[15]

In my view, the motion judge erred in
    his approach to the question of discoverability of the appellants claims and
    made palpable and overriding errors in his consideration of the evidence
    related to that question.

[16]

On the respondents motion for summary
    judgment, the motion judge was required to consider whether there were any
    genuine issues requiring a trial with respect to the discoverability of the
    appellants claims against the respondents. These claims were not limited to
    the negligent construction of the stone retaining wall built by J.D. MacKay but
    also comprised the negligent construction of the cottage foundation, as well as
    the Townships alleged negligence.

[17]

However, the motion judge
    misapprehended the evidence relating to the discoverability of the construction
    issues respecting the stone retaining wall and erred in law by failing to consider
    all the criteria for discoverability.

(1)

The legal framework

[18]

In his discoverability analysis, the
    motion judge was required to consider the provisions of s. 5(1) of the Act
[2]
, in the light of the governing principles regarding
    discoverability.

[19]

Section 5(1) of the Act provides as
    follows:

(1) A claim is discovered
    on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury,
    loss or damage had occurred,

(ii) that the injury,
    loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or
    omission was that of the person against whom the claim is made, and

(iv) that, having regard
    to the nature of the injury, loss or damage, a proceeding would be an
    appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities
    and in the circumstances of the person with the claim first ought to have known
    of the matters referred to in clause (a).

[20]

The overarching question in the
    discoverability analysis under s. 5 of the Act is whether the claimant knew or
    reasonably should have known, exercising reasonable diligence, the material
    facts stipulated under s. 5(1)(a) that give rise to a claim:
Ferrara
    v. Lorenzetti, Wolfe Barristers and Solicitors
,
    2012 ONCA 851, 113 O.R. (3d) 401, at para. 32. Section 1 of the Act defines a
    claim as a claim to remedy an injury, loss or damage that occurred as a result
    of an act or omission. Section 2(1) provides that the Act applies to claims
    pursued in court proceedings (with certain enumerated exceptions that do not
    apply here).

[21]

Knowledge of the claim includes knowledge
    of the identity of a potential defendant, although it is not necessary for a
    claimant to know with certainty a potential defendants responsibility for an
    act or omission that caused or contributed to the loss. As this court observed
    in
Longo v. MacLaren Art Centre
, 2014
    ONCA 526, 323 O.A.C. 246, at para. 44: All that is required is that the
    plaintiff has
prima facie
grounds to
    infer that the acts or omissions were caused by the identified parties.

[22]

While neither the extent nor the type of loss need be known,
    the claimant must know that some non-trivial loss has occurred, and that a
    proceeding would be a legally appropriate means to seek to remedy it:
Markel
    Insurance Company of Canada v. ING Insurance Company of Canada
, 2012 ONCA 218, 109 O.R. (3d) 652, at para. 34.
The
    common law acknowledges that trivial damages do not trigger a limitation
    period, since a prudent plaintiff would not bring an action to recover a
    trivial loss: G
rey Condominium Corp. No. 27 v. Blue Mountain Resorts
    Limited
(2007), 277 D.L.R. (4th) 644 (Ont. S.C.J.), affd 2008 ONCA 384,
    90 O.R. (3d) 321, at para. 58.

(2)

The motion judges misapprehension of the evidence and flawed
    discoverability analysis

[23]

In the present case, the motion judge
    determined that the Trow engineering report alerted or ought to have alerted
    the plaintiffs to the fact that the problems were construction related and that
    they had a cause of action against the defendants. In particular, he stated
    that the Trow report identified that there was a failure of the stone wall
    constructed by J.D. Mackay.

[24]

The motion judges conclusions are
    problematic because they contain a fundamental misapprehension of the expert
    reports and reveal a flawed discoverability analysis.

[25]

First, the motion judges finding of
    discoverability is based on a fundamental misstatement of the Trow report. Contrary
    to the motion judges reasons, the Trow report stated there was a failure of
the
pre-existing lower wooden retaining structure
, and not
the stone retaining wall

constructed by J.D.
    MacKay. Rather, it is the Terraprobe report that stated that the stone
    retaining wall was failing due to having been built on loose soil.

[26]

Second, the main problem suggested in
    the Trow report is a localized slope failure and/or localized consolidation of
    the underlying soils occurring at the north east corner of deck, not the
    construction of the stone retaining wall or the cottage and its foundations. Certainly,
    Trow indicated that the weight of the latter exacerbates the movement of the
    deck pier. However, Trow identified a localized slope failure or
    consolidation of the underlying soils occurring at an isolated point on the
    property, rather than human error in the construction of the stone retaining
    wall or the cottage and its foundations. This explains Trows admonition that
    the remedial steps may not resolve the naturally occurring issues.

[27]

The respondents argue that the
    appellants claim against them is statute-barred because they knew or should
    have known of any construction deficiencies on receipt of the Trow report.
    They submit that the concern raised by Trow that there was movement in the soil
    causing the pulling away of a deck post ought to have alerted the appellants
    that Royal Homes did not, as represented, build the cottage so as to ensure
    that it would not move toward the lake despite being constructed on a slope.
    However, the Trow report does not reveal any problems with the cottage
    construction. Indeed, the reference to a hairline crack in the basement floor
    as typical of shrinkage cracks would not reasonably give rise to any concern
    but rather serve to dismiss it.

[28]

The motion judge similarly misapprehends
    the contents of the Terraprobe report. While acknowledging the appellants
    argument that the Terraprobe report explicitly identified construction issues
    as the cause of the problems, the motion judge does not otherwise analyse the
    report. Rather, he appears to treat the Terraprobe report as confirming the
    issues raised in the Trow report.

[29]

This was an error. The Terraprobe
    reports conclusions differ importantly from those of the Trow report with
    respect to the issue of discoverability. Terraprobe identified the cause of the
    problems to be the negligent construction of the stone retaining wall on loose soil,
    which could have been prevented, and not the isolated, naturally occurring localized
    slope and/or soil problems raised by the Trow report. Further, the Terraprobe
    report raised for the first time the possibility of problems with the
    construction of the cottage foundation that had to be investigated.

[30]

The motion judge further erred by
    concluding that even without the Trow report, the appellants would have known
    that their cottage was not constructed properly and that they had a claim
    against the defendants because they had been assured that their new cottage
    would be built on a stable foundation and that they could leave their problems
    with the site conditions behind once the new cottage was built.  However, there
    was no evidentiary basis for the appellants to reasonably suspect that there was
    anything wrong with the cottage or its foundation until receipt of the
    Terraprobe report and its recommendation that it must be confirmed that the
    deck piers and
house foundations
are placed on native, undisturbed soils
    and/or bedrock capable of supporting the design loads [
emphasis added]
.  Again,
    it must be recalled that the stated purpose of the stone retaining wall was to
    provide adequate frost cover of the deck piers and not to provide stability.

[31]

The motion judges material
    misapprehension of the expert reports caused him to err in his discoverability
    analysis. It is not enough under s. 5(1) of the Act that the appellants were
    aware of a problem. As this court has said in
Fennell v. Deol
, 2016 ONCA 249, 97 M.V.R. (6th) 1, at para. 20:

The date of discovery is the earlier of the two dates under s.
    5(1)  when (a) the person with the claim had knowledge of, or (b) a reasonable
    person with the abilities and in the circumstances of the person with the claim
    first ought to have had knowledge of, the matters referred to in s. 5(1)(a)(i)
    to (iv).

[32]

The question is whether the appellants
    knew or reasonably ought to have known that the problem observed with the deck
    pier in 2009 was possibly caused by the acts or omissions of the defendants and
    gave rise to a claim (as defined under the Act) that was appropriately pursued
    in a court proceeding. Royal Homes and J.D. MacKay dismissed the issues with
    the stone retaining wall and deck pier as not serious and due to settling which
    should resolve.  Until receipt of the Terraprobe report in 2012, the appellants
    did not have the requisite knowledge that their loss was not trivial and
    possibly arose from the acts and omissions of the respondents, and that it was
    appropriate to pursue their claim in a court proceeding.

(3)

Failure to consider s. 5(1)(a)(iv) of
    the Act

[33]

The motion judge erred in failing to undertake
    an analysis of the criterion under s. 5(1)(a)(iv) of the Act. That the
    appellants might have a cause of action against the defendants, as the motion
    judge found, is not the end of the analysis under s. 5(1) of the Act. As this
    court said in
Kudwah v. Centennial Apartments
, 2012 ONCA 777
, 223 A.C.W.S. (3d) 225, at para. 2:

It is important when considering a limitation period claim to
    appreciate that the terms of the 2002
Act
must govern. A
    court considering the limitation claim must address the specific requirements
    of s. 5 of the
Act
, particularly on the facts of this case, the
    requirement of s. 5(1)(a)(iv).

[34]

Therefore, the motion judge had to
    consider whether the appellants had a claim as defined under the Act. In
    considering whether the appellants knew or should have known that they had a
    claim, the motion judge had to go on to consider whether, having regard to the
    nature of the injury, loss or damage, the appellants knew or should have known
    that a proceeding would be an appropriate means to seek to remedy it. This
    omission by the motion judge is an error of law:
Har Jo Management
    Services Canada Ltd. v. York (Regional Municipality)
, 2018 ONCA 469, at paras. 21 and 35.

[35]

Section 5(1)(a)(iv) represents a
    legislative addition to the other factors under the discoverability analysis. As
    Laskin J.A. explained in
407 ETR Concession Company Limited v. Day
, 2016 ONCA 709, 133 O.R. (3d) 762, leave to appeal to SCC
    refused, [2016] S.C.C.A. No. 509, at paras. 33-34:

The appropriateness of bringing an
    action was not an element of the former limitations statute or the common law
    discoverability rule. This added element can have the effect  as it does in
    this case  of postponing the start date of the two-year limitation period
    beyond the date when a plaintiff knows it has incurred a loss because of the
    defendants actions.

Also, when an action is appropriate
    depends on the specific factual or statutory setting of each individual case: see
Brown v. Baum
, 2016 ONCA 325, 397
    D.L.R. (4
th
) 161, at para. 21. Case law applying s. 5(1)(a)(iv) of
    the
Limitations Act
, 2002 is of
    limited assistance because each case will turn on its own facts.

[36]

One recognized reason why the
    legislature added appropriate means as an element of discoverability was to
    enable courts to function more efficiently by deterring needless litigation: see
407 ETR Concession Company
, at para. 48;
Markel Insurance Company of Canada v. ING Insurance Company of
    Canada
, at para. 34.

[37]

Here, the motion judge failed to
    consider the specific factual or statutory setting of the case before him and
    determine whether it was reasonable for the appellants not to immediately
    commence litigation but to wait and see if the 1 ¼ inch sinking of the deck
    pier observed in 2009 would worsen over time or if the issue would resolve once
    the stone retaining wall had settled, as had been suggested to the appellants
    by Mr. MacKay. Neither Royal Homes nor Mr. MacKay believed the
    problem was serious, or due to the manner of construction. This evidence does
    not support the conclusion that the appellants knew or ought to have known in
    2009 that their loss was not trivial and initiating legal proceedings was the
    appropriate means to remedy their loss.

(4)

Failure to consider the discoverability
    of the appellants claim against the Township

[38]

Finally, the motion judge erred by
    failing to consider whether the appellants knew or reasonably could have known
    the material facts giving rise to their claim against the Township more than
    two years prior to the commencement of their action. After the Terraprobe
    report, the appellants learned from the structural engineer retained by Fowler
    as part of the remediation that the Township should have required engineering drawings
    of the stone retaining wall. When Fowler started remedial work in 2013, it
    uncovered the foundation wall that had been approved by the Township and
    discovered that the cottage footings and foundation were also negligently
    placed on the same loose soil and organic materials as were under the stone
    retaining wall. There is no evidence that these material facts informing a
    claim against the Township were known to or reasonably discoverable by the
    appellants in 2009.

D.

Conclusion

[39]

These errors were material to the
    motion judges conclusion that the appellants knew or ought to have known the
    material facts giving rise to all of their claims against the respondents. If
    he had not made these errors, he would not have concluded that the appellants
    claims were discoverable in 2009 but at the earliest in 2012. As a result, the
    appellants claims are not statute-barred.  A trial is not necessary to
    determine this issue.

E.

Disposition

[40]

Accordingly, I would allow the appeal
    and set aside the judgment.

[41]

I would grant the appellants their
    costs of the appeal in the agreed upon amount of $5,000. I would also grant the
    appellants their costs of the motion below in the amount of $20,000, to be paid
    on an equal basis by the respondents. Both amounts are all inclusive of disbursements
    and applicable taxes.

Released: July 27, 2018 PR

L.B. Roberts J.A.

I agree. Paul Rouleau J.A.

I agree. Fairburn J.A.

[1]

The appellants settled their action with J.D. MacKay by way of
    a Pierringer Agreement.

[2]
The statutory presumption under s. 5(2) of the Act was not argued.


COURT OF APPEAL FOR ONTARIO

CITATION: Gore Mutual Insurance Company v. Carlin, 2018 ONCA
    628

DATE: 20180711

DOCKET: C64871

Feldman, Hourigan and Brown JJ.A.

BETWEEN

Gore Mutual Insurance
    Company

Plaintiff (Appellant)

and

Dr. George Carlin, Dr. George Carlin Dentistry
    Professional Corporation and Windent Inc.

Defendants (Respondents)

Debbie Orth, for the appellant

James L. MacGillivray, for the respondents

Heard: July 4, 2018

On appeal from the order of Justice Stanley J. Kershman
    of the Superior Court of Justice, dated December 22, 2017.

Hourigan J.A.:

[1]

This appeal raises the issue of whether an insured is
    permitted to retain the total amount paid by its insurer when it is subsequently
    determined that the amount paid was in excess of the loss suffered.

[2]

The motion judge granted summary judgment to the
    insureds in this case, holding that they were free to keep the total amount
    paid by the insurer, even though it exceeded their loss by over $100,000.

[3]

These reasons explain how the motion judge erred in
    reaching this conclusion and why I am allowing the insurers appeal.

Background Facts

[4]

The respondent Dr. George Carlin carried on the
    practice of dentistry in a building owned by the respondent Windent Inc.,
    located in Winchester, Ontario. The respondent Dr. George Carlin Dentistry
    Professional Corporation managed the practice.

[5]

On September 27, 2012, a fire destroyed the building and its contents.
    At the time of the loss, the appellant had issued an insurance policy for the
    building and its contents with the named insured being
Dr.
    George Carlin Dentistry Professional Corporation
. This policy also
    included coverage for business interruption. In addition to the policy issued
    by the appellant, there was coverage with Aviva Insurance Company of Canada
    (Aviva). That policy did not insure the building.
The
    appellant and Aviva reached an agreement on the proration of the losses under
    their respective insurance policies.

[6]

The appellant made a series of payments to the
    respondents prior to the determination of the total loss. These included a
    first payment of $50,000 made on October 3, 2012, as an advance payment under
    the Equipment Coverage section of the appellants policy, and a further advance
    payment of $18,077.04 pursuant to that section of the policy on December 17,
    2012. Other payments were also made under the policy to the respondents to
    cover lost profits.

[7]

On November 20, 2012, the appellant received a report
    that estimated the building loss at $894,160.21. In December 2012, the
    appellant obtained an estimate for the cost of replacing the building in the
    amount of $1,176,002.68.

[8]

On March 11, 2013, the respondents representative
    advised a representative of the appellant that the respondents were invoking an
    appraisal process to determine the value of the loss under the policies issued
    by the appellant and Aviva.

[9]

On April 3, 2013, the appellants representative
    advised the respondents and their representative, as well as Dr. Carlins wife
    Sandra Carlin, via email that he had authorized an advance for the loss payable
    for the building in the amount of $750,000. The appellants representative
    followed up with a further email on April 22, 2013, reiterating that he had
    possession of the advance and that he was awaiting receipt of a Proof of Loss
    in order to release it.

[10]

The respondents representative replied to the appellant on June 14,
    2013, advising that the interim $750,000 payment should be cancelled, as the
    respondents wished to wait until the building reconstruction costs and actual
    cost value (ACV) had been determined.

[11]

Sandra Carlin sent a further email to the appellants representative
    on July 26, 2013, explaining why the respondents found the $750,000 offer to be
    inadequate. The appellants representative replied that day stating, in part,
    that theadvance of $750K is just that, a substantial advance toward your loss
    so you can get restoration under waythis $750K advance in no way ties either
    of us to follow either sides estimate.

[12]

The
    appellants representative followed up with an email to the respondents
    representative and Sandra Carlin on September 13, 2013. That email provided in
    part as follows:

As previously advised accepting the $750K offer does not tie
    you to anything or hold you to repairs of any certain nature. Legally under
    your insured contract, the insured is owe[d] the Actual Cash Value for an item
    as settlement assuming replacement has not been enacted.

Accepting the advance you are well within your right to:
    rebuild as per pre-loss specifications, rebuild as per new upgraded
    specifications (upgrade at your own expense). Should you choose to re-build and
    your total costs are lower than the ACV issued, the additional funds are still
    yours to utilise as you see fit.

[13]

On
    September 25, 2013, two Proof of Loss forms were submitted to the appellant on
    behalf of the respondents. The appellant rejected them on October 2, 2013, but
    the respondents were advised that the $750,000 payment would nonetheless be
    made. Those funds were advanced on October 11, 2013.

[14]

The
    appellant and the respondents participated in an appraisal on May 14, 2014, as
    provided for in s. 128 of the
Insurance Act
, R.S.O. 1990, c. I.8 (the

Act
). The amount found to be payable by the appellant under the
    appraisal was $713,767.33. To that amount was added an agreed sum for business
    interruption loss, being $205,444, and $7,465.70 for professional fees. The
    total amount payable by the appellant was $926,677.03. However, by this time
    the appellant had already paid out $1,030,187.04. It sued to recover the
    overpayment of $103,510.01.

Decision of the Motion Judge

[15]

The
    parties agreed that the issue of the entitlement to the excess funds should be
    determined by summary judgment.

[16]

The
    motion judge began his analysis by finding that the appellant is a
    sophisticated insurance party. He then found that even though the $750,000
    payment was referred to as an advance, it was not in fact an advance because it
    was paid on the basis that it could be used as the respondents saw fit.

[17]

The
    motion judge next found that the payment was deliberate and not the product of
    mistake. He noted as well that both the policy and the
Act
were silent
    regarding what happens when an overpayment has been made.

[18]

The
    appellants claim of unjust enrichment was rejected on the grounds that the
    respondents obtained no benefit when they received the $750,000 payment, and
    that there was a juristic reason for sending the money, as set out in the
    September 13, 2013 email, which, according to the motion judge, indicated that
    the respondents could use the money as they wished.

[19]

The
    motion judge granted summary judgment to the respondents, finding that they
    were not obligated to repay the overpayment.

Issues

[20]

The
    grounds of appeal in this case boil down to two issues:

(i)

Did the motion judge err in holding that the appellant is not entitled
    to recover the overpayment? and;

(ii)

Did the motion judge err in finding that unjust enrichment was not an
    available remedy?

Analysis

(i)

Entitlement to Recover the Overpayment

[21]

I
    accept the appellants submission that a contract of insurance is a contract of
    indemnity; it is not a vehicle for turning misadventure into profit. The motion
    judges analysis ignores that fundamental principle. His analysis is based on a
    palpable and overriding error of fact regarding the September 13, 2013 email
    and extricable legal errors.

[22]

Before
    turning to the motion judges interpretation of the September 13, 2013 email, I
    note that in considering that communication, he failed to take into account
    that the appellant had a duty of good faith to facilitate the respondents claim.
    It is clear from the correspondence among the parties that the appellants representative
    was endeavouring in good faith to assist the respondents in rebuilding the
    dental practice. Given that the respondents only had one year of business
    interruption coverage, timing was important. The first offer of the $750,000
    payment was made in April 2013; the respondents did not finally accept the
    offer until September 25, 2013, just over a year from the date of the fire.

[23]

The
    plain wording of the email does not support the motion judges conclusion that
    the appellant was permitting the respondents to keep the full amount regardless
    of the quantum of their loss. The representative stated explicitly that the
    insureds were entitled to recover the actual cash value (ACV) of the loss. He
    further stated that in the event that the insureds chose to rebuild and the costs
    of rebuilding were less than the actual cash value, they were entitled to use
    the excess funds as they saw fit.

[24]

There
    was no suggestion in the email or in any of the earlier correspondence that the
    respondents were bound by the $750,000 payment. It was an advance only, pending
    the determination of the actual cash value through the appraisal process.
    Clearly, the respondents did not feel that they were bound by the payment as
    they continued to dispute the appellants figures for actual cash value and replacement
    cost value in the appraisal process.

[25]

The
    motion judge erred in equating the actual cash value as referred to in the
    email with the $750,000 advance. This led him to erroneously conclude that the
    appellant was communicating to the insureds that they could keep the $750,000
    regardless of the quantification of the actual cash value that was to be
    determined as part of the appraisal process. This was a palpable and overriding
    error of fact.

[26]

This
    factual error was compounded by extricable legal errors. The first legal error
    arises from the motion judges interpretation of the policy. He found that
    there was nothing in the wording of the policy that covers a situation where
    there has been an overpayment. Therefore, he concluded that the policy did not
    obligate the respondents to repay the overpayment.

[27]

An
    analysis of the policy that is limited to a search for a specific provision
    that dealt with an overpayment is not sufficient. The motion judge was obliged
    to determine what the parties bargained for in entering into their contract of
    insurance. Had he done so, it would have been clear that the respondents
    retention of the overpayment was antithetical to the bargain the parties
    struck.

[28]

The
    policy was designed to indemnify the insureds for loss suffered as defined in
    the policy. It contains a provision that states that indemnification against
    direct loss is limited to the least of: the actual cash value of the property,
    the interest of the insured in the property, and the amount of insurance
    specified in the declarations. A further provision states that the insurer is
    not liable beyond the actual cash value of the property.
[1]

[29]

Contracts
    of insurance are to be interpreted in a manner that results in neither a
    windfall to the insurer nor an unanticipated recovery to the insured:
Brisette
    Estate v. Westbury Life Insurance Co.
, [1992] 3 S.C.R. 87, at pp. 92-93.
    In the present case, the motion judges decision goes beyond an unanticipated
    recovery to grant a windfall that is wholly unconnected to the recovery of any
    loss. The policy provides only for indemnification for a loss suffered.

[30]

The
    motion judge also erred in law in his analysis of the
Act
. Similar to
    his analysis of the policy, he limited his inquiry to a search for a specific
    provision in the
Act
addressing a situation where an overpayment is
    made. With respect, his analysis failed to consider the purpose and scheme of
    the
Act
.

[31]

The
Act
defines insurance as the undertaking by one person to indemnify
    another person against loss or liability for loss Where the insurer and
    insured cannot agree on the quantum of the loss, they may have the issue
    determined by an appraisal, a mechanism provided for by the
Act
. In
    this case, the parties used the appraisal process to determine the respondents
    loss, except the agreed upon sums for professional losses and business
    interruption. I note that when the appraisal was issued, it was expressly
    subject to deduction for any indemnity payments made by the insurers to and on
    behalf of the insureds to date.

[32]

Thus
    the motion judges ruling is in conflict with the most basic elements of the
Act
by permitting recovery for amounts beyond the loss suffered by the insured.
    That is inconsistent with the definition of insurance as provided for in the
Act
and contrary to the purpose of conducting an appraisal.

[33]

The
    motion judge commented in his analysis that it would have been a simple matter
    for the legislature to deal with the issue of overpayment in the
Act
.
    To illustrate this, he noted that there is a specific provision dealing with
    overpayment in the
Statutory Accident Benefits Schedule
, O. Reg.
    34/10, under the
Act
.
Section 52 of the
Schedule
provides for repayment to the insurer of, among others things, amounts paid to
    a third party in error or as a result of fraud, and amounts paid as income
    replacement to a person who was disqualified from receiving such a benefit
    under the
Schedule
. However, the reference to the
Schedule

in this case was inapt, as the
Schedule

contemplates
    payments made by insurers to both insureds and third parties. It makes sense
    that the
Schedule

would specifically address repayment to the
    insurer of erroneous payments given that they could potentially be made to
    third parties who have no contractual relationship with the insured. In this
    case, as stated above, the contract was limited to indemnification of the
    insureds loss.

[34]

Similarly,
    the motion judges reliance on
Ryan v. Richards

(1991), 30
    A.C.W.S. (3d) 969 (Ont. Gen. Div.), affd 54 A.C.W.S. (3d) 501 (Ont. C.A.), was
    also inapt. There, in the context of a motor vehicle accident, the tortfeasors
    insurer made an advance payment under the
Act
to the third party
    injured plaintiff, with whom there was no direct contractual relationship.

[35]

In
    summary, I am of the view that the motion judge made a palpable and overriding
    error of fact, which was compounded by extricable legal errors, in concluding
    that the respondents were entitled to retain the overpayment. The payments were
    not made in a vacuum. They were advanced to the respondents pursuant to a contract
    of insurance, which is regulated by the
Act
. They were not intended to
    be, nor can they properly be interpreted to be a gratuitous payment over and
    above the indemnity contracted for by the parties. Instead, the policy must be
    interpreted as a contract of indemnity only.

(ii)

Unjust Enrichment

[36]

The
    motion judge found that there was no unjust enrichment. He determined that
    respondents received no benefit when they received the $750,000 payment.
    Further, he found that the juristic reason for the payment was the September
    13, 2013 email, which he said permitted the respondents to do whatever they
    wanted with the money.

[37]

The
    motion judge erred in law in his unjust enrichment analysis. The test for
    unjust enrichment is well established in the jurisprudence. To successfully
    make an unjust enrichment claim, a plaintiff must prove three things: (1) the
    defendant must have received an enrichment, (2) the plaintiff must have
    suffered a corresponding deprivation, and (3) there was no juristic reason for
    the benefit and loss:
Kerr v. Baranow
, 2011
    SCC 10, [2011] S.C.R. 269, at paras. 31, 36 and 40.

[38]

Where
    money is transferred from a plaintiff to a defendant, there is an obvious
    enrichment:
Garland v. Consumers Gas Co.
, 2004 SCC 25, [2004] 1
    S.C.R. 629, at para. 36. In this case, there can be no issue that the insured
    received a benefit and that the appellant suffered a corresponding deprivation.

[39]

For
    the reasons given above, the motion judge erred in his interpretation of the
    September 13, 2013 email. That email did not communicate that the respondents
    could do whatever they liked with the $750,000 payment regardless of the
    quantification of the actual cash value that was to be determined as part of
    the appraisal process. Therefore, the email is not a juristic reason for the
    benefit and corresponding loss.

[40]

In
    my view, the motion judge erred in finding that the remedy of unjust enrichment
    was not available to the appellant.

Disposition

[41]

The
    appeal is allowed. The order of the motion judge is set aside. An order will go
    granting summary judgment against
Dr. George Carlin Dentistry
    Professional Corporation
in favour of the appellant in the amount of $103,510.01,
    plus interest pursuant to the
Courts of Justice Act
,
R.S.O.
    1990, c. C.43
.

[42]

The
    appellant is also entitled to its costs below. If there is an issue regarding
    quantification of those costs, the parties shall make submissions to the motion
    judge.

[43]

With
    respect to the costs of the appeal, in keeping with the parties agreement, the
    respondents shall pay the appellant its costs of the appeal in the
    all-inclusive sum of $7,500.

Released: K.F. July 11, 2018

C.W.
    Hourigan J.A.

I
    Agree. K. Feldman J.A.

I
    Agree. David Brown J.A.

[1]
In this case, the insureds purchased additional coverage to obtain replacement
    cost as opposed to actual cash value, which resulted in a further provision
    that the insurer agrees to amend the basis of settlement from actual cash
    value to replacement cost


COURT OF APPEAL FOR ONTARIO

CITATION: Hagholm v. Coreio Inc., 2018 ONCA 633

DATE: 20180712

DOCKET: C64879

Simmons, Huscroft and Miller JJ.A.

BETWEEN

Rosemary Hagholm

Plaintiff (Respondent/

Appellant by way of cross-appeal)

and

Coreio Inc.

Defendant (Appellant/

Respondent by way of cross-appeal)

Andy Pushalik and Rachel Kattapuram, for the appellant

Dennis Crawford and Madchen Funk, for the respondent

Heard: June 18, 2018

On appeal from the judgment of Justice J.W. Sloan of the
    Superior Court of Justice, dated December 27, 2017.

REASONS FOR DECISION

[1]

In January 1995
Ms. Hagholm began working full-time for
    a predecessor of the appellant Coreio Inc. on the understanding that she could
    work from home three days per week. On January 16, 2017, shortly after
    acquiring the business, the appellant informed Ms. Hagholm that commencing March
    1, 2017, she could no longer work from home. Rather than report for work on
    March 1, 2017, Ms. Hagholm took the position that she had been constructively
    dismissed.

[2]

On a motion for summary judgment, the
    motion judge determined Ms. Hagholm had been constructively dismissed for two
    reasons. First, because the appellant breached an essential term of her
    employment contract, namely the term entitling her to work from home 60% of the
    time. Second, because the appellant arbitrarily set Ms. Hagholms fourth quarter
    2016 bonus in a manner contrary to the terms of her employment contract (she
    received $6,739 rather than something close to $18,000, to which the motion
    judge found she was entitled).

[3]

Further, the motion judge concluded that Ms.
    Hagholm was not obliged to return to a former employer from a mitigation
    standpoint." He found this was not an option as the appellant had breached
    a major term of Ms. Hagholms contract permitting her to work from home a
    substantial portion of the time. Further, a letter sent by the appellants
    lawyer on March 2, 2017 was carefully worded. Had the appellant intended to
    convey that it was prepared to permit Ms. Hagholm to work from home 60% of the
    time, the letter should have said so.

[4]

The motion judge awarded Ms. Hagholm:

i)     20.5 months of salary, less 10% of 10.5
    months salary for the contingency that she may find employment before the
    expiry of the 20.5-month period;

ii)    $11,261 as compensation for the
    underpayment of her fourth quarter 2016 bonus; and

i
ii)    compensation for lost benefits for
    20.5 months.

[5]

The appellant appeals from the motion judges
    judgment; Ms. Hagholm cross-appeals.

[6]

The appellant raises two issues on appeal.

[7]

First, the appellant argues the motion judge erred in failing to find
    that Ms. Hagholms duty to mitigate did not require her to return to work for
    the appellant. In this regard, the appellant submits that the motion judge
    conflated the test for constructive dismissal with the test for when an
    employee will be required to accept an offer of continued employment in order
    to mitigate damages for constructive dismissal. In addition, the appellant
    alleges Ms. Hagholms claims that she was constructively dismissed are tainted
    by her subsequent application for multiple positions in the Greater Toronto
    Area (GTA) requiring an equivalent or longer commute. Finally, the appellant
    argues the motion judge made palpable and overriding errors concerning the
    facts of Ms. Hagholms commute.

[8]

We do not accept these arguments. Even assuming the motion judge made a
    legal error concerning the applicable test or any factual errors concerning Ms.
    Hagholms commute, it would not be objectively reasonable to require a sixty-year
    old employee who, more than 20 years earlier had stipulated she would not
    accept a position if it required her to commute from Waterloo to Toronto every
    day, to mitigate her damages for the appellant's breach of contract by doing
    so. Further, like the motion judge, we are not satisfied the appellant had any
    intention of permitting Ms. Hagholm to continue to work from home 60% of the
    time during the notice period. Finally, the motion judge did not accept that
    Ms. Hagholm's application to other employers in the GTA demonstrated that she
    would have accepted those jobs without a work-from-home provision. This finding
    was open to him on the record.

[9]

Second, the appellant argues that the motion judge erred by concluding
    that the appellant arbitrarily set Ms. Hagholms fourth-quarter bonus payment
    for 2016. We reject this argument. The motion judge drew a negative inference
    from the appellant's inability to provide an intelligible description of how
    the bonus was calculated. On the evidence before him, he was entitled to do so.
    He also noted that although the appellant lost a significant client in 2016,
    that would not affect the appellants bottom line until after 2016. He
    concluded that Ms. Hagholms fourth quarter bonus for 2016 was not calculated
    as it should have been, and had previously been, but was arbitrarily set
    contrary to terms of her employment contract.

[10]

The
    appeal is dismissed.

[11]

Ms.
    Hagholm raises two issues by way of cross-appeal.

[12]

First,
    she argues that the motion judge erred by not awarding her the pro rata portion
    of her 2017 bonus for the two months she worked in 2017. Second, she argues
    that the motion judge erred by failing to award her all forms of compensation,
    including bonus compensation, for the duration of the notice period.

[13]

We
    accept these submissions. Concerning the pro rata portion of Ms. Hagholms 2017
    bonus for the two months she worked in that year, apart from alluding to the
    appellants loss of a major client in 2016, the motion judge gave no reason for
    denying her bonus entitlement for that period. If the 2016 loss of a client
    affected the appellants first quarter 2017 performance or the manner in which
    it awarded bonuses to other employees, the appellant could and should have
    adduced evidence to demonstrate that. Further, the motion judge erred in
    failing to turn his mind to the question of bonus entitlement during the balance
    of the notice period. See:
Paquette v. TeraGoNetworks Inc
.
,
    2016 ONCA 618, 352 O.A.C. 1, at para. 16.

[14]

Rather
    than having the parties incur the expense involved in remitting this matter to
    the motion judge for determination, we conclude that it is in the interests of
    justice that we address it. As noted by the motion judge, Ms. Hagholm had
    always received in the range of 90% to slightly more than 100% of her annual
    bonus entitlement. At the time of dismissal her annual bonus entitlement was $72,000
    per year, payable quarterly, with the opportunity to earn more bonuses. The bonus
    was patently an integral part of Ms. Hagholms compensation package. Moreover,
    the appellant did not identify any terms of her compensation package that would
    disentitle her to a bonus over the notice period. Averaging Ms. Hagholms
    bonuses over the five years immediately prior to her termination, leads us to
    conclude she should receive 100% of her bonus entitlement during the notice
    period (including the working notice period). See:
Singer v. Nordstrong
    Equipment Ltd
.,
2018 ONCA 364, at paras. 21 to 25.

[15]

We
    therefore allow the cross-appeal and direct that the motion judges order be
    amended to provide that Ms. Hagholm receive her pro rata bonus entitlement throughout
    the notice period, including the working notice period, based on a quarterly
    bonus entitlement of $18,000.

[16]

Costs
    of the appeal and cross-appeal are to Ms. Hagholm on a partial indemnity scale
    fixed in the agreed upon amount of $15,000 inclusive of costs and applicable
    disbursements.

Janet Simmons J.A.

Grant Huscroft J.A.

B.W. Miller J.A.


WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

An order restricting publication in this
    proceeding under ss. 672.501(1), (2), or (3) of the
Criminal Code
shall continue.  These sections of the

Criminal Code
provide:

672.501 (1) Where a Review Board holds a
    hearing referred to in section 672.5 in respect of an accused who has been
    declared not criminally responsible on account of mental disorder or unfit to
    stand trial for an offence referred to in subsection 486.4(1), the Review Board
    shall make an order directing that any information that could identify a
    victim, or a witness who is under the age of eighteen years, shall not be
    published in any document or broadcast or transmitted in any way.

(2) Where a Review Board holds a hearing
    referred to in section 672.5 in respect of an accused who has been declared not
    criminally responsible on account of mental disorder or unfit to stand trial
    for an offence referred to in section 163.1, a Review Board shall make an order
    directing that any information that could identify a witness who is under the
    age of eighteen years, or any person who is the subject of a representation,
    written material or a recording that constitutes child pornography within the
    meaning of section 163.1, shall not be published in any document or broadcast
    or transmitted in any way.

(3) Where a Review Board holds a hearing
    referred to in section 672.5 in respect of an accused who has been declared not
    criminally responsible on account of mental disorder or unfit to stand trial
    for an offence other than the offences referred to in subsection (1) or (2), on
    application of the prosecutor, a victim or a witness, the Review Board may make
    an order directing that any information that could identify the victim or
    witness shall not be published in any document or broadcast or transmitted in
    any way if the Review Board is satisfied that the order is necessary for the
    proper administration of justice.

Subsections 672.501(11) and (12) provide:

(11) Every person who fails to comply
    with an order made under any of subsections (1) to (3) is guilty of an offence
    punishable on summary conviction.

(12) For greater certainty, an order referred to in
    subsection (11) also prohibits, in relation to proceedings taken against any
    person who fails to comply with the order, the publication in any document or
    the broadcasting or transmission in any way of information that could identify
    a victim or witness whose identity is protected by the order.

COURT OF APPEAL FOR ONTARIO

CITATION: Hart (Re), 2018 ONCA 624

DATE: 20180711

DOCKET: C64558

Doherty, MacPherson and Rouleau JJ.A.

IN THE MATTER OF:  DAKOTA HART, A.K.A. KAELLUM WILFRED
    ERIDANI

AN APPEAL UNDER PART XX.1 OF THE
CODE

Suzan E. Fraser and Cate Martell, for the appellant

Catherine Weiler, for the respondent Her Majesty the
    Queen

Janice Blackburn, for the respondent the Person in
    Charge of St. Josephs Healthcare Hamilton

Heard and released orally: July 5, 2018

On appeal against the disposition of the Ontario Review
    Board dated October 2, 2017, with Reasons for Disposition issued October 24,
    2017 and received by the appellant on October 24, 2017.

REASONS FOR DECISION

[1]

The appellant raises three issues:

(1)

Did the Board err in finding that the appellant posed a significant
    threat to the safety of the public?

[2]

The Boards finding that the appellant posed a significant threat is
    supported by the evidence before the Board.  The hospitals risk assessment and
    the treating psychiatrists opinion provided evidence that the appellant, at
    this time, posed a significant risk to relapse into a psychotic state.  That
    risk was exacerbated by the appellants refusal to take medication that would
    mitigate the effect of the relapse.  Finally, the appellants relatively recent
    history of serious violence directed at children while in a psychotic state
    provided further evidence of the risk posed to the public by the appellant.

[3]

The appellants unwillingness to use medication to manage his risk and
    the hospitals concerns about the appellants potential use of alcohol and/or
    marijuana, were both relevant to the determination of the risk posed by the
    appellant.  The weight to be assigned to those factors, along with the other
    factors, was for the Board.

(2)

Did the Board err in failing to consider a conditional discharge?

[4]

The Board accepted the treating psychiatrists evidence that the
    appellant was not, at this time, a candidate for a conditional discharge.  The psychiatrist
    gave reasons for advancing that opinion, all of which are supported in the
    record before the Board.  In the face of that evidence, a conditional discharge
    was not a viable option at this time.  The Board explained its reasons for
    denying the conditional discharge at para. 73.

(3)

Should condition 4(f) of the Boards disposition be amended?

[5]

The parties agree that the Boards disposition fails to track the
    intention of the Board insofar as the language of condition 4(f) of the
    disposition is concerned.  That condition should be amended to read as follows:

Refrain from attending at any public park or public swimming
    area where persons under the age of 14 are present or could reasonably be
    expected to be present; refrain from attending at any daycare centre, school
    ground, playground or community centre at times when persons under the age of
    14 are present or could reasonably be expected to be present, except when
    accompanied by hospital staff, staff from any residential accommodation
    approved by the hospital, or any approved staff.

[6]

The appeal is allowed to the extent of the variation in condition 4(f).
    Otherwise, the disposition of the Board dated October 2, 2017 stands.

Doherty J.A.

J.C. MacPherson J.A.

Paul Rouleau J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Honsinger (Re), 2018 ONCA 662

DATE: 20180724

DOCKET: C65075

Hoy A.C.J.O., van Rensburg and Pardu JJ.A.

IN THE MATTER OF: CHRISTOPHER HONSINGER

AN APPEAL UNDER PART XX.1 OF THE
CODE

Robert F. Goddard, for the appellant

Erica Whitford, for the respondent Crown

Marie-Pierre Pilon, for the Person in Charge, Brockville
    Mental Health Centre

Heard and released orally: July 19, 2018

On appeal against the disposition of the Ontario Review
    Board, dated November 15, 2017.

REASONS FOR DECISION

[1]

Mr. Honsinger appeals against the disposition of the Ontario Review
    Board, dated November 9, 2017, continuing his detention at the Brockville Mental
    Health Centre. He seeks an absolute discharge. Before us, he did not pursue his
    argument that he seeks a conditional discharge.

[2]

Mr. Honsinger is 23 years of age. The index offences occurred in July
    2014. On September 29, 2014, Mr. Honsinger was found not criminally responsible
    on account of mental disorder on charges of assault, two charges of mischief  not
    exceeding $5000  and two charges of uttering a threat to cause death or bodily
    harm. The initial psychiatric diagnosis was that Mr. Honsinger was experiencing
    an acute psychotic episode that was part of schizophrenia at the time of the
    index offences.

[3]

Counsel for Mr. Honsinger argues that the Boards conclusion that Mr.
    Honsinger is a significant threat to the safety of the public was
    unreasonable and unsupported by the evidence. In particular, he argues that
    neither Mr. Honsingers treating psychiatrist, Dr. Gray, nor the Board properly
    considered how the change in his diagnosis from schizophrenia to anti-social
    personality disorder, cannabis use, and borderline intellectual functioning
    impacted the risk assessment. He says Dr. Gray and the Board did not appreciate
    the distinction between schizophrenia and cannabis induced psychosis. Instead,
    they assumed the threat was equivalent. Moreover, he argues, the purported link
    between Mr. Honsingers cannabis use and psychosis does not bear scrutiny.

[4]

We reject these arguments.

[5]

The expert evidence was alive to the change in Mr. Honsingers
    diagnosis. The Board could find that the appellant posed a significant threat
    based on the revised diagnosis. Dr. Grays evidence links Mr. Honsingers
    cannabis use to the psychotic symptoms he experienced when he committed the
    index offences. The record also disclosed a long-standing inability to abstain
    from substance use; a history of aggressive, threatening and violent behavior,
    some of which was recent; and a diagnosis of antisocial personality disorder.
    On this record, the Boards conclusion that Mr. Honsinger posed a significant
    threat was reasonable.

[6]

Counsel for Mr. Honsinger also questions whether Mr. Honsinger in fact
    experienced a psychotic episode at the time he committed the index offences.
    However, this position was not put to Dr. Gray when he testified. Dr. Gray testified
    that he believed the index offence was an incident of drug-induced psychosis,
    and all indications in the record before us are that Mr. Honsinger experienced
    a psychotic episode at the time of the index offences.

[7]

Accordingly, the appeal is dismissed.

Alexandra Hoy A.C.J.O.

K.M. van Rensburg
    J.A.

G. Pardu J.A.


COURT OF APPEAL
    FOR ONTARIO

CITATION: Malkov v. Stovichek-Malkov, 2018 ONCA 620

DATE: 20180709

DOCKET: C64667

Feldman, Hourigan and Brown JJ.A.

BETWEEN

Dmitri Malkov

Applicant (Respondent)

and

Natalia
    Stovichek-Malkov

Respondent (Appellant)

and

Mikhail Malkov

Respondent (Respondent)

Robert G. Schipper and John Freeman, for the appellant

Leonard Susman, for the respondent Mikhail Malkov

Heard: July 3, 2018

On appeal from the
    order of Justice Heather A. McGee of the Superior Court of Justice, dated November
    15, 2017, with reasons reported at 2017 ONSC 6822.

REASONS FOR
    DECISION

I.

OVERVIEW

[1]

The appellant, Natalia
    Stovichek-Malkov, appeals from the order of the trial judge (i) declaring that
    her former father-in-law, the respondent Mikhail Malkov, is the sole beneficial
    owner of 41 Arnold Avenue, Thornhill (the Property) and (ii) requiring Natalia
    and her former husband, Dmitri Malkov, to transfer all of their right, title
    and interest in the Property to Mikhail.

[2]

The trial judge found that Natalia
    and Dmitri held title to the Property on a resulting trust in favour of
    Mikhail, who is the sole owner of the Property.

II.

THE GROUND OF APPEAL

[3]

Natalia advances a single ground
    of appeal: she submits the trial judge did not conduct the proceedings in a
    fair manner because she refused to allow Natalia to call as a witness Janna
    Donskoy, the lawyer who acted on the purchase of the Property.

III.

THE TRIAL PROCESS

[4]

A brief of chronology of the
    events concerning the trial is required to assess this ground of appeal.

[5]

As a result of trial management
    directions, the trial of the property and support issues was bifurcated from
    that for custody issues.

[6]

At the start of the
    property/support issues trial on May 30, 2017, the trial judge proposed that
    the parties put in their cases in the following order: Mikhail, Natalia, and
    then Dmitri, followed by closing submissions. Counsel agreed to this sequence.

[7]

Although Mikhail had indicated on
    the Trial Scheduling Endorsement Form (the Form) that he would be calling Ms.
    Donskoy as a witness, during his cross-examination on the second day of trial, May
    31, 2017, his counsel advised that he would not. Natalia then put in her case,
    and did not seek to call Ms. Donskoy. Dmitri then put in his case-in-chief on
    June 2, 2017.

[8]

The continuation of the trial was
    put over until September 18, 2017. At that time, Natalias counsel advised the
    court that he had issued a summons to Ms. Donskoy in June and intended to call her
    as a witness. He informed the court that he had not talked with Ms. Donskoy
    about the substance of her potential evidence nor did he otherwise know what
    her evidence would be. Counsel stated he was aware that none of Mikhail, Dmitri
    or Natalia had waived privilege in respect of any conversations they might have
    had with Ms. Donskoy.

IV.

THE TRIAL JUDGES RULING

[9]

Noting that Natalia did not have a right to call reply evidence because
    she had not led her evidence first, the trial judge treated her advice that she
    intended to call Ms. Donskoy as a request to reopen her case. The trial judge
    observed that the
Family Law Rules
, O. Reg. 114/99, did not address
    such a situation, which led her to consider two of the
Rules of Civil
    Procedure
,
R.R.O. 1990, Reg. 194,
that
    covered analogous circumstances  rules 52.10 and 53.01(3).

[10]

Rule 52.10(a) provides that
    [w]here, through accident, mistake or other cause, a party fails to prove some
    fact or document material to the partys case, (a) the judge may proceed with
    the trial subject to proof of the fact or document afterwards at such time and
    on such terms as the judge directs. Rule 53.01(3) states that a trial judge
    may at any time direct that a witness be recalled for further examination.

[11]

The trial judge stated that Natalia
    did not frame her request as one based on an accident or mistake. She pointed
    out that Natalia had every opportunity back in May and June to call Ms.
    Donskoy. The trial judge then turned to what she considered was the heart of
    the matter, stating:

Materiality is the place where this motion must fail. Even
    three months after the closing of his case, [Natalias counsel] cannot say what
    the evidence [of Ms. Donskoy] will be or if it would be relevant. It may not
    even be available due to solicitor-client privilege. His client has not waived
    her privilege, which would be a prerequisite to calling the witness. Its an
    end right there

To allow [Natalia] to reopen her case to call a witness who, at
    this point, has no discovered evidence to provide would, and I dont say this
    lightly, be an abuse of process. Trials have a beginning, a middle, and an end.

V.

ANALYSIS

[12]

Natalia submits the trial judge
    did not apply a sufficiently detailed test when considering her request to
    reopen her case. The trial judge relied on the decision in
Scott v.
    Cook
, [1970] 2 O.R. 769 (H.C.), which held
    that on a motion to reopen trial proceedings, the requesting party must show
    that the evidence sought to be adduced is such that, if it had been presented
    during the trial, it probably would have changed the result.

[13]

Natalia
    contends the more appropriate test to be applied in the context of family law
    proceedings is that set out in
Catholic Childrens Aid Society of Toronto
    v. M.R.
, 2014 ONCJ 762,
64 R.F.L. (7th) 470
.
    In that case, as in the present one, the request to reopen the case was made
    before the judge had given reasons for judgment, in contrast to
Scott
where the request was made after reasons for judgment had been delivered but
    before formal judgment had been entered.

[14]

In
Catholic Childrens Aid Society of Toronto
, the court stated, at para.
    17:

Factors which a court will consider in civil cases in
    determining whether to allow a plaintiff to re-open are set out below:

·

At what stage of the trial is the motion made?

·

Why was evidence not adduced during the partys case? Did the
    party intentionally omit leading the evidence earlier? Or did the evidence only
    recently come to the partys attention, despite diligent earlier
    efforts?

·

What is the prejudice to the defendant?  A defendant might
    have conducted his case differently if he had known and had an opportunity to
    investigate the evidence which is the subject of the motion.

·

Can any prejudice be remedied in costs?

·

How would a reopening of the case affect the length of the
    trial?  How much evidence would have to be revisited?

·

What is the nature of the evidence? Does it deal with an issue
    which was important and disputed from the beginning, or with a technical or
    non-controversial point?  Does it merely shore up evidence led in chief?

·

Is the proposed new evidence presumptively credible? [Footnotes
    omitted.]

[15]

We agree that the
Catholic
    Childrens Aid Society of Toronto
case provides
    a helpful list of factors for a trial judge to consider when entertaining a
    partys request to reopen her case. In our view, when the reasons of the trial
    judge for her ruling are read as a whole, they disclose that she took into
    account the factors most relevant to the specific circumstances of the case.

[16]

In her ruling, the trial judge
    expressed concern that Natalia was seeking to reopen her case towards the end
    of the trial notwithstanding that: (i) all parties had agreed on the sequence
    in which they would call their cases; and (ii) Mikhail had disclosed, before
    Natalia opened her case, that he would not be calling Ms. Donskoy. As the trial
    judge stated, every opportunity was available for this witness to be called by
    [Natalia].

[17]

The trial judge reasonably placed
    considerable weight on the nature or materiality of the proposed evidence. Natalia
    was unable to identify for the trial judge what relevant evidence Ms. Donskoy
    could offer if allowed to testify. Natalias counsel had not tried to interview
    Ms. Donskoy to ascertain what she might say. Nor had Natalia sought to call Ms.
    Donskoy back in May when it became apparent Mikhail did not intend to call her
    as a witness.

[18]

Significantly, Natalia has not
    sought leave to adduce on this appeal fresh evidence that describes Ms.
    Donskoys potential testimony. We are left in the same position as the trial
    judge found herself  we do not know what Ms. Donskoy might say.

[19]

However, Natalia contends that the
    language in the Form weighs strongly in her favour. In the section where
    Mikhail listed the witnesses he intended to call, which included Ms. Donskoy,
    the Form states: By naming a witness below, the party undertakes to make the
    witness available to the other party without summons even if the party decides
    not to call the witness. Given that language, Natalia argues that the trial
    judge failed to give appropriate consideration to Mikhails decision not to
    call Ms. Donskoy.

[20]

We are not persuaded by this
    submission. By listing a witness on the Form, a party does not undertake to
    call that witness but only to make the witness available to the other party
    without summons in the event the listing party decides not to call the witness.
    In the present case, Mikhails counsel advised that he would not call Ms.
    Donskoy. At that stage of the trial, the undertaking in the Form offered
    Natalia a mechanism by which she could secure Ms. Donskoys evidence for her
    case without summons, but she did not avail herself of the opportunity.
    Instead, she waited several months until the resumption of the trial to request
    reopening her case.

[21]

Given Natalias lack of forensic
    diligence regarding Ms. Donskoys evidence and the absence of any evidentiary
    basis to suggest the lawyers evidence probably would have an important
    influence on the result of the case, we see no error in the cost/benefit and
    fairness analysis conducted by the trial judge that led her to exercise her
    discretion to refuse Natalia leave to call Ms. Donskoy.

VI.

DISPOSITION

[22]

For the reasons set out above, we dismiss
    the appeal.

[23]

Based on the agreement of the
    parties about the costs of the appeal, Natalia shall pay Mikhail his costs of
    the appeal fixed in the amount of $26,000, inclusive of disbursements and all
    applicable taxes.

K.
    Feldman J.A.

C.W.
    Hourigan J.A.

David
    Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Mancinelli v. Royal Bank of Canada, 2018 ONCA 652

DATE: 20180718

DOCKET: C64775

Hoy A.C.J.O., Brown and Trotter JJ.A.

BETWEEN

JOSEPH S. MANCINELLI, CARMEN PRINCIPATO, DOUGLAS
    SERROUL, LUIGI CARROZZI, MANUEL BASTOS and JACK OLIVEIRA in their capacity as
    THE TRUSTEES OF THE LABOURERS PENSION FUND OF CENTRAL AND EASTERN CANADA, and
    CHRISTOPHER STAINES

Plaintiffs (Appellants)

and

ROYAL BANK OF CANADA, RBC CAPITAL MARKETS LLC, BANK OF
    AMERICA CORPORATION, BANK OF AMERICA, N.A., BANK OF AMERICA CANADA, BANK OF
    AMERICA NATIONAL ASSOCIATION, THE BANK OF TOKYO MITSUBISHI UFJ LTD., BANK OF
    TOKYO-MITSUBISHI UFJ (CANADA), BARCLAYS BANK PLC, BARCLAYS CAPITAL INC.,
    BARCLAYS CAPITAL CANADA INC., BNP PARIBAS GROUP, BNP PARIBAS NORTH AMERICA
    INC., BNP PARIBAS (CANADA), BNP PARIBAS, CITIGROUP, INC., CITIBANK, N.A.,
    CITIBANK CANADA, CITIGROUP GLOBAL MARKETS CANADA INC., CREDIT SUISSE GROUP AG,
    CREDIT SUISSE SECURITIES (USA) LLC, CREDIT SUISSE AG, CREDIT SUISSE SECURITIES
    (CANADA), INC., DEUTSCHE BANK AG, THE GOLDMAN SACHS GROUP, INC., GOLDMAN, SACHS
    & CO., GOLDMAN SACHS CANADA INC., HSBC HOLDINGS PLC, HSBC BANK PLC, HSBC
    NORTH AMERICA HOLDINGS INC., HSBC BANK USA, N.A., HSBC BANK CANADA, JPMORGAN
    CHASE & CO., J.P.MORGAN BANK CANADA, J.P.MORGAN CANADA, JPMORGAN CHASE BANK
    NATIONAL ASSOCIATION, MORGAN STANLEY, MORGAN STANLEY CANADA LIMITED, ROYAL BANK
    OF SCOTLAND GROUP PLC, RBS SECURITIES, INC., ROYAL BANK OF SCOTLAND N.V., ROYAL
    BANK OF SCOTLAND PLC, SOCIÉTÉ GÉNÉRALE S.A., SOCIÉTÉ GÉNÉRALE (CANADA), SOCIÉTÉ
    GÉNÉRALE, STANDARD CHARTERED PLC, UBS AG, UBS SECURITIES LLC
and
UBS BANK (CANADA)

Defendants (Appellants)

Kirk M. Baert, Celeste Poltak and Louis Sokolov, for the
    appellants

Lara Jackson, Wendy Berman and Christopher Horkins, for
    the respondents, the Bank of Montreal, BMO Financial Corp., BMO Harris Bank
    N.A., BMO Capital Markets Limited

Paul Le Vay, Brendan van Niejenhuis and Benjamin Kates,
    for the respondents, Toronto Dominion Bank, TD Bank, N.A., TD Group Holdings,
    LLC, TD Bank USA, N.A. and TD Securities Limited

Heard: May 14, 2018

On appeal from the order of Justice Paul Perell of the Superior
    Court of Justice, dated December 11, 2017.

COSTS ENDORSEMENT

[1]

Following the release of our reasons in this
    matter, the respondents advised that the court had misapprehended the
    appellants oral costs submissions and the parties had not agreed to the
    amounts submitted by the appellants and subsequently reflected in the costs
    disposition in the reasons as agreed by the parties. The respondents sought to
    provide, and the court permitted the parties to provide, further written
    submissions on the issue of the quantum of the costs the respondents must pay
    to the appellants.

[2]

We have received and reviewed those submissions.

[3]

They do not persuade us to alter the costs of
    the appeal ordered in the reasons: the appellants shall be entitled to their
    costs of the appeal, fixed in the all-inclusive amount of $50,000, payable to
    $25,000 by TD, and as to $25,000 by BMO.

[4]

However, they do persuade us that the costs of
    the motion below that we ordered BMO and TD to pay the appellants should be
    altered. BMO and TD shall each pay the appellants the sum of $45,000 (a total
    of $90,000) as costs of the motion below, and not the greater amounts provided
    in the reasons.

Alexandra Hoy
    A.C.J.O.

D.M. Brown J.A.

G.T. Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Manorgate Estates Inc. v. Kirkor Architects and
    Planners, 2018 ONCA 617

DATE: 20180706

DOCKET: C64764

Epstein, Lauwers and van Rensburg JJ.A.

BETWEEN

Manorgate Estates Inc. and Manorgate Estates
    Kingston Road Inc.

Plaintiffs (Appellants)

and

Kirkor Architects and Planners

Defendant (Respondent)

Michael Simaan, for the appellants

Charles Simco and Matthew Urback, for the respondent

Heard: June 28, 2018

On appeal from the order of Justice Lise G. Favreau of
    the Superior Court of Justice, dated November 29, 2017, with reasons reported
    at 2017 ONSC 7154.

REASONS FOR DECISION

[1]

The appellants (Manorgate) build residential
    homes. The respondent (Kirkor) is an architectural consulting firm retained by
    Manorgate to assist with a construction project. On September 23, 2011, Manorgate
    entered into an agreement (the First Agreement) with Kirkor under which
    Kirkor agreed to provide design services for a project involving the
    construction of 12 townhouses with above grade parking at a location in Toronto
    (the smaller project).

[2]

After the First Agreement was executed the City
    of Toronto advised Manorgate that it would prefer a higher density development
    at the planned location. The proposed project was then changed to 24 townhomes
    with below grade parking (the larger project). Manorgates principal met with
    a senior partner of Kirkor on September 28, 2011 to discuss this new concept. After
    this meeting, on November 18, 2011, the parties entered into a design agreement
    with respect to the larger project (the Second Agreement).

[3]

Both agreements contained a clause precluding
    Manorgate from suing Kirkor based on any pre-contractual representations (the
    Entire Agreement Clause).

[4]

Manorgate says that at the September 28, 2011
    meeting Kirkors representative represented to Manorgates representative that
    the larger project would cost approximately $130 per square foot  the same
    price per square foot that Manorgate had originally estimated for the smaller
    project (the Alleged Negligent Misrepresentation). Manorgate alleges that the
    actual cost per square foot of the larger project turned out to be
    significantly higher than $130, such that the larger project was no longer
    financially viable. Manorgate eventually reverted back to its original plan for
    the smaller project.

[5]

Manorgate claimed that it entered into the
    Second Agreement in reliance on the Alleged Negligent Misrepresentation. It
    therefore brought this proceeding based on the Alleged Negligent
    Misrepresentation for approximately $530,000  the amount Manorgate claims are
    the unrecoverable costs associated with having to abandon the larger project,
    including fees it paid to Kirkor.

[6]

Kirkor denied the representation. In the
    alternative, Kirkor relied on the Entire Agreement Clause in the Second
    Agreement to preclude liability for any pre-contractual representations.

[7]

Kirkor moved for summary judgment.

[8]

The motion judge found that it was not necessary
    to decide whether Kirkor made the Alleged Negligent Misrepresentation. She
    granted summary judgment dismissing the action, concluding that the Entire
    Agreement Clause in the Second Agreement operated as a complete defence to
    Manorgates claim.

[9]

Critical to the motion judges conclusion was
    her finding that the Second Agreement was not a continuation of the First
    Agreement but an entirely new agreement. It followed that the Entire Agreement
    Clause contained in the Second Agreement superseded the Alleged Negligent
    Misrepresentation, with the effect that Manorgate was not entitled to rely on the
    representation even if it
had
been made by
    Kirkor.

[10]

Manorgate appeals primarily on the basis that
    the motion judge erred in giving effect to the Entire Agreement Clause.

[11]

We do not accept Manorgates submission that the
    motion judge erred in finding that the Second Agreement was a separate
    agreement rather than a revision of the First Agreement, and accordingly that the
    Alleged Negligent Misrepresentation was excluded by the Entire Agreement
    Clause. The motion judge rejected that argument and reasoned that the change in
    the scope and terms of the project in the Second Agreement were so fundamental
    that they amounted to a new agreement.

[12]

While correctly identifying the substantive
    requirements for the formation of a valid contract is an issue of law, applying
    those requirements to a given fact scenario and interpreting the language of
    two apparent agreements (as the motion judge did here) raises questions of
    mixed law and fact:
Sattva Capital Corp. v. Creston Moly Corp.
,
2014 SCC 53, [2014] 2 S.C.R. 633, at
    paras. 49-51, 53. The motion judges determination that the First Agreement and
    Second Agreement were two separate contracts was a finding of mixed law and fact
    based on the record before her. It is entitled to deference on appeal.

[13]

Manorgate has identified no extricable error of
    law in the motion judges determination of this critical issue. The motion
    judge proceeded correctly by applying principles that govern contractual
    interpretation and giving the parties words their ordinary and grammatical
    meaning, consistent with the surrounding circumstances known to the parties at
    the time they entered into the contracts:
Sattva
, at para. 47. As the motion judge found, the fundamental terms of
    the Second Agreement were different than the First Agreement. Moreover, we note
    that Manorgates representatives evidence on discovery was that the Second Agreement
    was a new contract for a new design.

[14]

We also do not accept Manorgates argument that
    the motion judge erred in determining that the Entire Agreement Clause was
    broad enough to exclude the Alleged Negligent Misrepresentation. Manorgates
    argument hinges on its position that the two agreements are standard form
    contracts and therefore the motion judges finding is to be reviewed on a
    standard of correctness.

[15]

Although the agreements were not amended prior
    to signature, they were not standard form agreements of the nature contemplated
    by the Supreme Court of Canada in
Ledcor Construction Ltd. v.
    Northbridge Indemnity Insurance Co
.,
2016 SCC 37, [2016] 2 S.C.R. 23. On Manorgates evidence the
    agreements were open to being amended prior to signing. The motion judges
    interpretation that the Second Agreement, specifically the Entire Agreement
    Clause, was broad enough to apply to the Alleged Negligent Misrepresentation is
    accordingly an exercise in contractual interpretation entitled to deference:
Ledcor
,
at para. 21. Among other things, we
    note that a plain reading of the Second Agreement makes it clear that Kirkor
    did not agree to provide any costing services. As the motion judge
    acknowledged, the contract specifically states that [d]etailed estimates of
    construction costs, quantify surveys or life cycle cost studies are not part
    of the services to be provided by Kirkor pursuant to the agreement.

[16]

In the light of all of the circumstances, the
    Entire Agreement Clause was broad enough to exclude the Alleged Negligent
    Misrepresentation. The motion judges finding to this effect was supported by
    the record and is entitled to deference.

[17]

We do not accept the additional submission
    Manorgate made before this court that the motion judge erred in her
    interpretation of the provision in the Second Agreement excluding detailed
    estimates of construction costs from the services provided. The motion judge
    referred to this provision in rejecting the argument made before her that
    preliminary costing was part of the services Kirkor was to perform. She stated,
    at para 44:

I reject the plaintiff's argument that the use of the word
    "detailed" implies that preliminary or high level costing forms part
    of the contract. Nothing else in the contract supports such an interpretation.

We see no error.

[18]

The motion judge also made no error in failing
    to find a triable issue as to whether the Entire Agreement Clause should be
    unenforceable on the basis that it was unconscionable and against public
    policy.

[19]

The motion judge reasonably found there to be no
    legally relevant disparity in bargaining power or any other basis for finding
    that Kirkor took advantage of Manorgate. In coming to this conclusion the
    motion judge considered the level of industry experience of the two parties and
    found that Kirkor did not improperly induce Manorgate to enter into the Second
    Agreement. On this record, we see no reason to interfere with this conclusion.

[20]

We would also reject Manorgates argument
    concerning the motion judges failure to enforce a duty of good faith between
    the parties, as it is not properly raised at first instance on appeal.

[21]

The appeal is therefore dismissed. Kirkor is
    entitled to its costs of the appeal fixed in the amount of $10,000, inclusive
    of HST and disbursements.

Gloria Epstein J.A.

P. Lauwers J.A.

K. van Rensburg J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Matos v. Driesman, 2018 ONCA 660

DATE: 20180724

DOCKET: C64440

Hoy A.C.J.O., van Rensburg and Pardu JJ.A.

BETWEEN

Mariette Matos

Applicant (Respondent in Appeal)

and

David Driesman

Respondent (Appellant)

David Driesman, acting in person

Michael Polisuk, for the respondent

Heard and released orally: July 16, 2018

On appeal from the
    order of Justice Paisley of the Superior Court of Justice, dated September 22,
    2017.

REASONS FOR DECISION

[1]

The appellant father, Mr. Driesman, appeals from the order of the motion
    judge, striking his pleadings.

[2]

The parties had settled all issues arising from the marriage breakdown.
    Under their agreement, the fathers income was deemed to be $120,000 per year
    and he agreed to contribute $1,000 per month towards the childrens s. 7
    expenses for the following five years. At the end of the five-year term, the
    father stopped paying these expenses.

[3]

On September 24, 2015, the mother initiated a motion to change to seek
    continued s. 7 contributions. The father opposed and sought a refund of table
    child support and s. 7 contributions in the amount of approximately $66,000.
    The father disputed that his income was approximately $120,000. At his
    questioning, he provided undertakings. They were not fulfilled.

[4]

Most significantly, the father failed to provide proof of the source of
    deposits totalling approximately $1,169,000, despite being requested to do so
    on five occasions.

[5]

In June 2017, the motion judge provided the father with clear directions
    as to how to fulfil his undertakings and put him on notice that he risked
    having his pleadings struck if he failed to comply. When the father failed to
    comply with the undertakings, his pleadings were struck.

[6]

The father submits that the motion judges order striking his pleadings
    should be set aside because the motion judge failed to provide reasons. He
    argues that he complied with his undertakings.

[7]

We reject this submission. In the context of the motions before the
    motion judge and the record, it is clear that the motion judge struck the
    fathers pleadings because he was satisfied that the fathers further responses
    did not comply with the undertakings. We are not persuaded that the motion
    judges conclusion that the father did not comply with the undertakings
    constitutes a palpable and overriding error.

[8]

The father further submits that the extraordinary remedy of striking his
    pleadings was not proportional.

[9]

We disagree.

[10]

The
    disclosure that was made was dwarfed by the size of the unexplained deposit. Given
    the parties financial situations, the size of the unexplained deposits makes
    this submission highly significant. Moreover, the mother acknowledges that the
    pleadings that were struck were only the fathers Form 15B Response to Motion
    to Change as it relates to Mesbur J.s order of April 12, 2010.

[11]

Furthermore,
    as this court stated in
Manchanda v. Thethi
, 2016 ONCA 909, 84 RFL
    (7th) 374:

After continual admonitions by the courts and the legislature
    that parties to a matrimonial proceeding must produce financial documentation,
    wilful non-compliance must be considered egregious and exceptional.

[12]

The
    father also asserts that striking pleadings here is inappropriate because of
    his child-related claim for the court to intervene in his estrangement from his
    daughter. The mother responds to this by saying that the father has not
    properly put the issues of custody and/or access previously settled before the
    court.

[13]

Again,
    we agree.

[14]

The
    appeal is dismissed. The mother is entitled to costs of the appeal, fixed in
    the amount of $10,000, inclusive of disbursements and HST.

Alexandra Hoy
    A.C.J.O.

K.M. van Rensburg
    J.A.

G. Pardu J.A.