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.

COURT OF APPEAL FOR ONTARIO

CITATION: Children's Aid Society of Toronto v. V.D., 2017
    ONCA 514

DATE: 20170619

DOCKET: M47375, M47581 and M47785 (C62218)

Rouleau, Hourigan and Benotto JJ.A.

BETWEEN

Childrens Aid Society of Toronto

Responding Party

(Respondent)

and

V.D. and P.V.

Moving Parties

(Appellants)

V.D., acting in person

P.V., acting in person

Lisa Hayes, for the responding party

Heard: In writing

Benotto J.A.:

[1]

A nine-year-old boy has been in child protection for over six years. His
    biological mother  assisted by the biological father  moves to re-open this
    courts dismissal of her appeal. For the reasons that follow, I would dismiss
    the motion and, pursuant to r. 37.16 of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194, prohibit the parents from bringing any further motions in
    this proceeding without leave.

A.

Background

[2]

Phillip
[1]
was born on January 4, 2008 to V.D (mother) and P.V. (father). He was
    apprehended by the Childrens Aid Society of Toronto (CAS) on May 16, 2011.
    He was three-years-old. The home from which he was apprehended was described as
    follows:

[It] had a foul odour and was in a state of pandemonium.
    Garbage was everywhere and rotting food covered most surfaces  Cockroaches
    were everywhere.

[3]

The child was in terrible shape. He was filthy, had not been bathed, and
    his clothes did not fit. Dr. Leo Levin, a pediatrician, described the child as
    a kind of ... feral. He displayed signs of significant delay in all areas of
    functioning. Dr. Dan Fitzgerald, a child psychologist, found the childs
    functioning was at the low level and described his situation as severe
    neglect. The father has not seen the child since he was apprehended.

[4]

The child remained in the temporary care of the CAS until a trial before
    Weagant J. of the Ontario Court of Justice. During the 35-day trial, 26
    witnesses testified, including Dr. Levin, Dr. Fitzgerald, and Dr. Nitza Perlman,
    who prepared parenting capacity assessments. The trial judge found Phillip in
    need of protection and made him a Crown ward. With respect to the father, the
    trial judge said, any consideration of [the father] having access, supervised
    or otherwise, is completely out of the question.

[5]

The trial judge, clearly concerned about what role the mother would play
    in the childs life, determined that a third parenting capacity assessment
    should be conducted and appointed Dr. Jean Wittenberg, a staff psychiatrist at
    the Hospital for Sick Children where he is the head of the Infant Psychiatry
    Program. In a 76-page assessment report, Dr. Wittenberg concluded that the
    mother did not have the ability to be a caregiver for Phillip.

[6]

Meanwhile, the CAS obtained a restraining order to prevent the mother
    from harassing the childs foster parents. Dr. Wittenberg testified that the
    mothers conduct toward him had been harassing as well. Dr. Wittenbergs
    evidence was consistent with many CAS witnesses in relation to their
    experiences attempting to work cooperatively with the mother. The trial judge
    commented:

[T]his pattern of threatening the participants in the legal
    process is indeed an ongoing theme with [the mother]. In the hundreds of pages
    of out-of-court communications, submissions and motions that have shown up in
    my inbox  there are many references to Law Society complaints against a former
    CAS counsel. I have previously made reference to the number of interlocutory
    appeals  the threat of appeal persisted in oral submissions until the last
    court appearance.

[7]

By order dated July 29, 2015, Weagant J. made Phillip a Crown ward with
    no access to the mother or father, pursuant to s. 57(1)(3) of the
Child and
    Family Services Act
, R.S.O. 1990, c. C.11 (
CFSA
). This order would
    permit the child to be placed for adoption.

[8]

The mother, joined by the father, appealed the order of Weagant J. to
    the Superior Court of Justice, asserting the trial judge was biased, had
    misdirected himself, and erred in law in numerous respects. On May 10, 2016,
    Backhouse J. of the Superior Court of Justice carefully reviewed the
    allegations and concluded there was no merit to the parents multiple grounds
    of appeal. The appeal was dismissed.

[9]

The parents then appealed to this court. The appeal was heard on
    December 12, 2016. At the outset of oral argument, the mother, supported by the
    father, sought various relief, including: (i) a further adjournment of the
    appeal to afford the appellants time to review the transcripts of the
    proceeding before Backhouse J., which they claimed to have not received; (ii)
    additional time for argument of the appeal, namely, 20 hours for the mother and
    20 hours for the father; (iii) the appointment of a five-person panel of this
    court to hear the appeal; (iv) the granting of leave to appeal to the Supreme
    Court of Canada; and (v) in the case of the father, an order removing him as a
    named appellant on this appeal to permit him to commence his own appeal.

[10]

The panel declined to grant any of the requested relief. On December 20,
    2016, the panel dismissed the appeal on its merits.

[11]

The child has now been in the care of the CAS for six years, since May
    16, 2011. In dismissing the appeal, this court said:

The trial judges findings about the nature and extent of the
    neglect that [Philip] experienced over a lengthy period while in [the mothers]
    care, his needs and the type of parenting that he requires to meet those needs
    were amply supported by the evidence at trial. The lengthy litigation in this
    case has prevented permanency and long-term stability in [Phillips] life and
    precluded adoption efforts. We agree with the CAS that closure should be
    brought to this unfortunate chapter in Phillips life and that he should be
    placed for adoption without further delay.

B.

Motion to re-open the appeal

[12]

The mother now moves to re-open the appeal and have a new trial. She has
    re-argued all of the matters dealt with before Weagant J., Backhouse J. and
    this court. In support of her motion, she resumes allegations of bias on the
    part of the trial judge, misfeasance by the expert witnesses, and defamation
    against her.

[13]

The CAS brought a cross-motion to dismiss the motion and to settle the
    outstanding order dismissing the appeal.

[14]

The motion came before Epstein J.A. on May 3, 2017. She directed that
    the mothers motion be heard by a panel in writing to determine whether the
    proposed motion to re-open the appeal should be dismissed for delay or as
    frivolous, vexatious or otherwise an abuse of the process of the court under r.
    2.1.02.

C.

Analysis

[15]

I deal first with the merits of the mothers motion and then consider
    whether to preclude the parents from making further motions without leave.

(1)

Merits of the motion

[16]

I would dismiss the parents motion for two reasons. First, it lacks
    merit. They seek a third appeal from the order of the trial judge. The mother
    puts forth the same grounds that have been dismissed twice.

[17]

Second, the delay that the mothers actions have caused are damaging to
    the child and contrary to all of the imperatives of child protection
    legislation. Matters relating to child protection are to be held to strict
    timelines, both pursuant to the
CFSA
and the
Family Law Rules
,
    O. Reg. 114/99. The philosophy underlying these strict timelines is basic: the
    child needs to have clarity, certainty and an opportunity for a future. When,
    as here, the child qualifies for adoption, every day of delay impacts his
    chances to join a loving family.

(2)

Prohibition against further motions

[18]

These same considerations impact my determination that the parents must
    be precluded from launching further motions without leave.

[19]

The
Rules of Civil Procedure
provide:

2
.1.02 (1) The court may, on its own
    initiative, stay or dismiss a motion if the motion appears on its face to be
    frivolous or vexatious or otherwise an abuse of the process of the court.

(3) On making an order under subrule (1), the court
    may also make an order under rule 37.16 prohibiting the moving party from
    making further motions in a proceeding without leave.

37
.16 On motion by any party, a judge or master may by
    order prohibit another party from making further motions in the proceeding
    without leave, where the judge or master on the hearing of the motion is
    satisfied that the other party is attempting to delay or add to the costs of
    the proceeding or otherwise abuse the process of the court by a multiplicity of
    frivolous or vexatious motions.

[20]

The mothers motion must be dismissed as frivolous, vexatious and an
    abuse of process. Her actions in pursuing this matter seriously impact the
    well-being of the child.

[21]

I am also satisfied, pursuant to r. 37.16, that she is attempting to
    delay the proceeding by a multiplicity of frivolous motions in this court. There
    have been multiple motions, orders for extensions of time, and refusals to
    settle orders. This pattern is a continuation of conduct that ran rampant in
    the courts below. The record is replete with correspondence, motions, requests,
    complaints, and activities which have frustrated the resolution of this childs
    future. She appears to be supported in these attempts by the childs father.

D.

Disposition

[22]

For the reasons above, I order:

1.     The
    parents motion is dismissed (it will not be necessary to deal with the motion
    by the CAS);

2.     The
    parents, V.D. and P.V., are prohibited from making further motions in relation
    to the child protection proceeding, without leave; and

3.     I
    dispense with the requirement that this order as well as all previous orders of
    this court be approved as to form and content.

[23]

The CAS has brought a motion to dismiss the motion as abandoned
    (M47581). It will not be necessary to address this motion.

Released: PR JUN 19 2017

M.L. Benotto J.A.

I agree. Paul Rouleau
    J.A.

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

[1]
I have given the child a pseudonym to avoid the use of initials.


COURT OF APPEAL FOR ONTARIO

CITATION: CIBC Mortgages Inc. v. York Condominium Corporation
    No. 385, 2017 ONCA 542

DATE: 20170628

DOCKET: C63135

Strathy C.J.O., Cronk and Pepall JJ.A.

BETWEEN

CIBC Mortgages Inc.

Applicant (Respondent)

and

York Condominium Corporation No. 385

Respondent (Appellant)

AND BETWEEN

York Condominium Corporation No. 385

Applicant (Appellant)

and

CIBC Mortgages Inc.

Respondent (Respondent)

Jonathan Fine and Maria Dimakas, for the appellant

Benjamin Frydenberg, for the respondent

Heard: May 8, 2017

On appeal from the judgment of Justice Sean F. Dunphy of
    the Superior Court of Justice, dated November 24, 2016, with reasons reported
    at 2016 ONSC 7343, and the costs order of Justice Dunphy, dated December 21,
    2016, with reasons reported at 2016 ONSC 8036.

Cronk J.A.:

Introduction

[1]

This statutory interpretation case involves a priorities contest between
    the appellant, York Condominium Corporation No. 385 (YCC), and the
    respondent, CIBC Mortgages Inc. (CIBC), under the provisions of the
Condominium
    Act, 1998
, S.O. 1998, c. 19 (the Act).  The primary issue on appeal is
    whether YCCs statutory lien under s. 85(1) of the Act against a particular
    unit in the condominium (Unit 302) regarding unpaid common expenses owing under
    s. 134(5) of the Act lost priority over CIBCs first mortgage on the property
    because YCC allegedly failed to register a lien certificate in a timely
    fashion.

[2]

Section 134(1) of the Act permits a condominium corporation, among
    others, to bring proceedings in the Superior Court for an order enforcing
    compliance by a unit owner with the provisions of the Act, the Condominium
    Declaration or the condominium corporations by-laws and rules.  Section 134(5)
    requires the corporation to add to the common expenses for the unit any award
    of damages or costs made in such proceedings, together with its own additional
    actual costs in obtaining the compliance order.  These sums can then be
    collected through the lien enforcement provisions in s. 85 and, ultimately,
    through the sale of the unit, if necessary.  Under s. 85(2), the lien expires
    three months after the default that gave rise to the lien occurred, unless
    the corporation registers a certificate of lien.  The main issue in this appeal
    is when that default occurred.

Relevant Statutory Provisions

[3]

YCCs lien claim is based on s. 85(1) of the Act.  That section reads:

If an owner defaults in the obligation to contribute to the
    common expenses, the corporation has a lien against the owners unit and its
    appurtenant common interest for the unpaid amount together with all interest
    owing and all reasonable legal costs and reasonable expenses incurred by the
    corporation in connection with the collection or attempted collection of the
    unpaid amount.

[4]

Section 85(2) of the Act addresses the perfection of a lien arising under
    s. 85(1).  It directs:

The lien expires three months
after the
    default that gave rise to the lien occurred
unless the corporation
    within that time registers a certificate of lien in a form prescribed by the
    Minister.  [Emphasis added.]

[5]

The Act also provides for notice of a statutory lien to be furnished to
    the affected unit owner, and for the manner of enforcement of the lien.
    Sections 85(4) and (6) state:

At least 10 days before the day a certificate of lien is
    registered, the corporation shall give written notice of the lien to the owner
    whose unit is affected by the lien.

The lien may be enforced in the same manner as a mortgage.

[6]

Section 86 addresses the priority of a s. 85(1) statutory lien.  As
    relevant to this appeal, ss. 86(1), (3) and (5) provide:

Subject to subsection (2), a lien
    mentioned in subsection 85(1) has priority over every registered and
    unregistered encumbrance even though the encumbrance existed before the lien
    arose  .

The corporation shall, on or before the day a certificate of
    lien is registered, give written notice of the lien to every encumbrancer whose
    encumbrance is registered against the title of the unit affected by the lien.

Subject to subsection (6), the lien loses its priority over an
    encumbrance unless the corporation gives the required notice to the
    encumbrancer.

[7]

Section 134 of the Act concerns the institution of proceedings to
    enforce compliance by a unit owner with the provisions of the Act, the
    condominium Declaration, the condominium corporations by-laws and rules, and
    related matters.  Section 134(1) reads in part:

Subject to subsection (2)  a corporation  may make an
    application to the Superior Court of Justice for an order enforcing compliance
    with any provision of this Act, the declaration, the by-laws, [or] the rules
    .

[8]

Section 134(5), the provision at the heart of the dispute in this case, provides
    for the recovery by a condominium corporation, as common expenses, of damages
    or costs awarded under a compliance order, plus any additional actual costs to
    the corporation in obtaining the [compliance] order (Additional Actual
    Costs).  The common expenses aggregated under s. 134(5) can trigger a s. 85(1)
    lien claim.  Section 134(5) states:

If a corporation obtains an award of damages or costs in an
    order made against an owner or occupier of a unit,
the
    damages or costs, together with any additional actual costs to the corporation
    in obtaining the order, shall be added to the common expenses for the unit and
    the corporation may specify a time for payment by the owner of the unit
.
    [Emphasis added.]

Background Facts

[9]

The following chronology sets out, in brief, the pertinent background
    facts.

January 28, 2010            The owners of Unit 302 grant a
    first mortgage on their condominium unit, in the amount of $135,000, to CIBC;

February 14, 2011          YCC obtains a compliance order
    under s. 134(1) of the Act in the Superior Court of Justice against one of the
    owners of Unit 302, restraining that owner from harassing YCC staff and other
    residents.  In granting the compliance order, the court also awards costs in
    favour of YCC, in the amount of $15,000, payable within 30 days from the date
    of the order (the Costs Order);

March 16, 2011               The
    unit owner fails to pay the Costs Order as required;

August 3, 2011                In accordance with s. 134(5)
    of the Act, YCC adds the amount of the outstanding Costs Order and Additional
    Actual Costs, totalling $44,272.63, to the amount of common expenses owed by
    the owners of Unit 302 (the Claimed Common Expenses);

August 15, 2011              YCC, for the first time,
    demands payment of the Claimed Common Expenses from the defaulting unit owner,
    on or before September 14, 2011.  In its demand letter, YCC warns that if
    payment is not forthcoming by September 14, it will register a lien under the
    Act against Unit 302;

September 15, 2011       The unit owner fails to pay the
    Claimed Common Expenses, as demanded;

November 10, 2011        YCC
    delivers a notice of lien to the owners of Unit 302;

December 12, 2011        YCC registers a certificate of
    lien on title to Unit 302 for the Claimed Common Expenses, having also served
    CIBC with a copy of the certificate;

February 28, 2013           YCC commences litigation
    against the owners of Unit 302, seeking possession of the unit and payment of
    the Claimed Common Expenses;

May 6, 2013                    YCC serves the owners of
    Unit 302 and CIBC with a Notice of Sale Under Lien regarding the unit;

October 18, 2013            YCC
    obtains a writ of possession regarding Unit 302;

November 27, 2013        YCC
    obtains possession of Unit 302;

December 27, 2013        The owners of Unit 302 default in
    payment under the CIBC first mortgage;

April 7, 2014                    YCC agrees to sell Unit
    302 to a third party for $110,000, with a closing date of May 30, 2014;

May 2, 2014                    CIBC commences enforcement
    proceedings on its mortgage;

May 13, 2014                  CIBC first learns of the sale
    of Unit 302.  By this time, the amount of YCCs lien for the Claimed Common
    Expenses has increased to $113,616.68.  In light of the pending closing of the
    sale of Unit 302, YCC and CIBC agree that the sale should proceed, with the net
    sale proceeds to be held in trust pending determination of entitlement to them;

May 30, 2014                  The closing of the sale of
    Unit 302 occurs, yielding gross proceeds in the sum of $110,173.02;

October 22, 2014            CIBC
    obtains judgment on its mortgage against the owners of Unit 302, in the amount
    of $135,411.79, plus interest and costs, and an order for possession of the
    unit.

[10]

YCC maintains that its statutory lien for the Claimed Common Expenses has
    priority over CIBCs first mortgage by reason of s. 86(1) of the Act.  The
    amount of the lien (comprised of the Costs Order and Additional Actual Costs,
    including legal costs incurred by YCC with two different law firms in
    connection with its s. 134 compliance proceeding) is said to be $113,616.68 as
    of the date of sale of Unit 302.  As agreed by the parties, the net amount of
    $94,006.01 is currently held in trust by YCCs lawyers, pending resolution of
    the parties competing claims to the net proceeds of sale of Unit 302.

Applications Judges Decision

[11]

In late 2014, both parties applied for relief in the Superior Court of
    Justice.  In its application, YCC sought, among other things, declarations that
    its lien is good and valid and that CIBC is not entitled to any part of the
    Unit 302 sale proceeds.  CIBC also claimed declaratory relief, including
    declarations that YCCs lien is invalid and ought to be discharged and that
    YCCs lien rights, if any, expired prior to registration of its lien certificate
    on December 12, 2011.  CIBC also sought an order requiring that the net sale
    proceeds, and certain other funds that it claimed had been wrongly deducted by
    YCCs lawyers from the sale proceeds, be paid to it.

[12]

The applications judge held that YCCs lien had expired prior to the
    registration of its lien certificate.  In his view, the relevant owner of Unit
    302 defaulted for the purpose of s. 85(2) of the Act on March 17, 2011 when the
    owner failed to comply with the Costs Order by March 16, 2011, as required.
    This default, he held, triggered the three-month perfection period under s.
    85(2) of the Act.  As the three-month period had run its course prior to YCCs registration
    of its lien certificate on December 12, 2011, its lien lost its priority
    status, otherwise conferred by s. 86(1) of the Act, over CIBCs first mortgage.

[13]

The applications judge summarized his conclusions, at para. 3 of his
    reasons, in this fashion:

The exceptional right to assert priority lien rights under s.
    85 of the [Act] strikes a delicate balance between the rights of a variety of
    affected stakeholders, including unit owners and mortgage holders.  The
    common-sense meaning of default when used in relation to an obligation to pay
    is that default occurs when the payment is due but not made.  Payment of the
    court-ordered costs by the unit holder was first due but not paid on March 17,
    2011  There is but one default arising from non-payment of the costs ordered
    and that default occurred when those costs were not paid on the last day
    specified for their payment.  While section 134(5) authorizes but does not
    require the condominium corporation to extend the time for payment of amounts
    that are required to be added to common expenses, no such extension of time was
    granted by the condominium corporation before the default occurred or indeed at
    any time before the three month period for registering a lien expired.  Having
    failed to register a lien within three months of the time that the default
    first occurred, there was no lien right to revive (or perfect) on December 12,
    2011 when notice of the lien was registered.

[14]

The applications judge, therefore, dismissed YCCs application and
    granted declarations that its certificate of lien is invalid and that its lien
    rights had expired prior to the registration of its lien certificate.  He
    ordered that YCCs lien certificate be discharged and that the funds held in
    trust by YCCs lawyers from the sale of Unit 302, together with certain other
    funds described later in these reasons, be paid to CIBC.  He also awarded CIBC
    its costs of the applications, fixed in the total amount of $62,510.85, inclusive
    of disbursements and HST.

[15]

YCC appeals.  Its main argument is that the applications judge erred in
    his interpretation of s. 134(5) of the Act, leading him to further err in his
    determination of the commencement date for the three-month lien perfection period
    provided for under s. 85(2) of the Act.  YCC also seeks leave to appeal and, if
    leave be granted, appeals from the applications judges costs ruling.

Issues

[16]

There are two issues on appeal.  The central issue is whether YCC
    preserved the priority assigned to its statutory lien by s. 86(1) of the Act,
    by registering its lien certificate within three months of the unit owners
    default that gave rise to the lien, as required by s. 85(2).
[1]
The determination of this question turns on the interplay between ss. 85(2) and
    134(5) of the Act and, in particular, on when the default giving rise to the
    lien occurred, thereby triggering the three-month perfection period under s.
    85(2).  As I have said, YCC also seeks leave to appeal the applications judges
    costs award in favour of CIBC.

Discussion

(1)

Priorities Dispute

[17]

In my view, the applications judge correctly interpreted ss. 85(2) and 134(5)
    of the Act and properly applied them to the facts of this case.  As a result, I
    see no basis for appellate interference with his findings that CIBCs mortgage
    has priority over YCCs lien and that CIBC is entitled to receipt of the net
    sale proceeds from Unit 302 now held in trust by YCCs solicitors.  I reach
    these conclusions for the following reasons.

(i)

Interpretive Approach

[18]

At the outset, I observe that the interpretation of ss. 85(2) and 134(5)
    of the Act must be undertaken in accordance with the well-established modern
    approach to statutory interpretation.  This approach requires that the words
    of [an] Act are to be read in their entire context and in their grammatical and
    ordinary sense harmoniously with the scheme of the Act, the object of the Act,
    and the intention of Parliament:
Rizzo & Rizzo Shoes Ltd. (Re)
, [1998]
    1 SCR 27, at para. 21, quoting Elmer Driedger,
Construction of Statutes
,
    2nd ed. (Toronto: Butterworths, 1983), at p. 87.

(ii)

Purpose of Sections 85(2) and 134(5)

[19]

Section 85(2) of the Act is concerned with the perfection of a statutory
    lien arising under s. 85(1).  It requires that, to preserve the priority of a
    s. 85(1) lien accorded by s. 86(1) over other encumbrances, a lien claimant must
    register a certificate of lien in prescribed form within three months after the
    unit owners default that gave rise to the lien.

[20]

Section 134(5) of the Act is primarily directed at ensuring the recovery
    by a condominium corporation of damages or costs awarded in its favour in a
    compliance proceeding, together with any Additional Actual Costs.   For this
    purpose, it requires, in mandatory terms, that the condominium corporation add
    the awarded damages or costs and any Additional Actual Costs to the amount of
    common expenses otherwise owed by the responsible unit owner.  As this court
    held in
Metropolitan Toronto Condominium Corp. No. 1385 v. Skyline
    Executive Properties Inc.
, [2005] 253 D.L.R. (4th) 656, at para. 39, s.
    134(5) thus affords a condominium corporation a broad right of recovery for
    costs incurred in obtaining a compliance order and also provides an effective
    enforcement mechanism for the collection of those costs.

[21]

Recently, in
Toronto Standard Condominium Corporation No. 1908 v.
    Stefco Plumbing & Mechanical Contracting Inc.
, 2014 ONCA 696, 377
    D.L.R. (4th) 369, this court examined the legislative purpose behind the
    provisions of the Act dealing with the collection of common expenses, including
    s. 134.  While recognizing that the Act has consumer protection aspects, the
    court also held with respect to these provisions, at para. 41:

[T]his part of the Act is designed to safeguard the financial
    viability of a condominium corporation in a manner that fairly balances the
    rights of the various stakeholders.  Lane J. was correct in
York
    Condominium Corp. No. 482 v. Christiansen
(2003), 64 O.R. (3d) 65 (Ont.
    S.C.J.) when he observed, at para. 5: [A] principal object of the Act is to
    achieve fairness among the parties  owners, their tenants, their mortgagees,
    the corporation itself  in raising the money to keep the common enterprise
    solvent.

[22]

The
Stefco
court went on to state, at para. 42:

In restricting the availability of the
    priority for common expenses to circumstances where the condominium corporation
    has registered its lien and provided notice to encumbrancers, the legislature
    has balanced the right and obligation of a condominium corporation to collect
    common expenses against the right of a mortgagee to have notice of a default in
    the payment of common expenses.  This right of notice is of significant benefit
    to a mortgagee.
It allows a mortgagee to determine if it should take
    steps to protect its interests under s. 88, by paying the common expenses,
    treating the failure to pay as a default under the mortgage, and commencing
    enforcement proceedings.  [Emphasis added.]

[23]

In
Stefco
, the court also examined the purpose of s. 134(5)
    itself.  The court cited with approval, at para. 43, the following passage from
Skyline
, at para. 40, regarding s. 134(5):

[T][he section was intended to shift the financial burden of
    obtaining compliance orders from the condominium corporation and ultimately,
    the innocent unit owners, to the unit owners whose conduct necessitated the
    obtaining of the [compliance] order.  Furthermore, the section was enacted to
    provide a means whereby the condominium corporation could, if necessary,
    recover those costs from the unit owner through the sale of the unit.

[24]

Stefco
and
Skyline
confirm that the Act does not seek
    to prefer the rights of a condominium corporation at the expense of the rights
    of an affected mortgagee.  They instruct that the purpose of the common
    expenses collection provisions of the Act generally, and s. 134(5)
    specifically, is to provide a remedial mechanism for a condominium corporation
    to recover the damages or costs awarded in its favour under a compliance order,
    together with any Additional Actual Costs, directly from the unit owner whose
    conduct precipitated the compliance proceeding.  However, this statutory
    objective is intended to be achieved in a manner that respects the delicate balancing
    of the interests of all stakeholders, including those of non-defaulting unit
    owners and affected mortgagees, which underlies the Act as a whole and the
    common expenses collection provisions themselves.

[25]

Section 134(5) must be interpreted in light of these guiding
    principles.

(iii)

Interpretation of Sections 85(2) and 134(5): Date of Default

[26]

The applications judge held that default occurred for the purpose of s.
    85(2) of the Act when payment was due under the Costs Order by March 16, 2011
    and not made by March 17, 2011.  He reasoned as follows, at para. 51:

The common-sense meaning of default when
    used in relation to an obligation to pay is that default occurs when the
    payment is due but not made
.  Payment of the court-ordered costs by the
    unit holder was first due but not paid before March 17, 2011.  Whether or not
    the payee had notice of the order, he had notice of the proceeding giving rise
    to it.
As with any order, including default judgments,
    the order was effective when made and in accordance with its terms.  The order
    on its face required payment by March 16, 2011.  The payee was in default
    within the meaning of s. 85(2) of the [Act]  whether he knew it or not  on
    March 17, 2011.  No step was required on the part of YCC 385 to make the amount
    payable.
It was payable whether or not the corporation took some
    additional step on its own books to add the amount to its ledger of common
    expenses for the unit.  [Emphasis added.]

[27]

YCC attacks these critical findings on several grounds.  Its central argument
    is that the applications judges finding regarding the timing of the unit owners
    default for the purpose of s. 85(2) rests on a misinterpretation of s. 134(5)
    of the Act.  In its factum, YCC submits the applications judge erred in wrongly
    extending the jurisdiction of the court, by holding that the setting of a
    default date for the payment of the Costs Order also constitutes the default
    date for the payment of the Claimed Common Expenses.

[28]

This argument focuses on the wording specify a time for payment by the
    owner of the unit, in s. 134(5).  YCC maintains that default under the Costs
    Order is distinct from, and unrelated to, default in payment of common expenses
    under s. 134(5).  The applications judges alleged error regarding the timing
    of the unit owners default, YCC says, essentially disregarded and rendered
    meaningless its discretionary power under s. 134(5) of the Act to specify a
    time for payment by the owner of the unit.

[29]

YCC further argues that, because s. 134(5) provides discretionary
    authority to a condominium corporation to specify a time for payment by the
    owner of the unit of common expenses, that is, those sums added to common
    expenses in compliance with s. 134(5), the section operates to empower the corporation
    to give a unit owner extra time to pay common expenses, prior to the
    commencement of the three-month lien perfection period set out under s. 85(2).
    In other words, YCC submits, s. 134(5) provides a discretionary redemption
    period during which a unit owner is able to cure a default in the payment of
    common expenses, without the necessity of the registration of a lien.

[30]

I would reject YCCs interpretation of the interplay between ss. 85(2)
    and 134(5) of the Act, for several reasons.

[31]

First, the language of the Costs Order is straightforward.  The costs
    awarded under it were expressed to be payable within thirty (30) days of the
    date of this Order, that is, by March 16, 2011.  The costs were not paid by
    that date, with the result that the unit owner was in default of the Costs
    Order on March 17, 2011.  I did not understand YCC to suggest to the contrary.

[32]

The important point in this context is that it is the obligation created
    by the Costs Order that anchors YCCs lien claim.  It was the unit owners non-compliance
    with the Costs Order that YCC relied on to assert a statutory lien under s.
    85(1).  It follows that this was the default event that gave rise to the lien
    within the meaning of s. 85(2).

[33]

Second, and importantly, nothing in ss. 85(2) or 134(5) provides that a
    condominium corporation that asserts a lien for unpaid s.

134(5) common expenses is relieved of its
    obligation to perfect its lien in accordance with s. 85(2), in order to maintain
    the priority of the lien over other encumbrances.

[34]

YCC relies on the decision of this court in
Skyline
to argue
    that there is a difference between an award of costs and any Additional
    Actual Costs under s. 134(5).  It submits that while the courts have
    jurisdiction over awards of costs, including the timing for payment of
    court-ordered or assessed costs, condominium corporations have exclusive
    jurisdiction over the timing for payment of s. 134(5) common expenses,
    including Additional Actual Costs added to common expenses under the section.  As
    a result, YCC maintains, there can be no default in payment of common expenses
    until the corporation, in the exercise of its discretion under s. 134(5),
    specifies a date for payment of them.

[35]

In my view, YCCs reliance on
Skyline
to ground this argument
    is misplaced.  Neither
Skyline
nor
Stefco
involve the timing
    of a unit owners default for the purposes of ss. 85(2) or 134(5).

[36]

It is true that
Skyline
, like s. 134(5), differentiates between
    Additional Actual Costs, which
Skyline
holds can include legal costs owing
    as between a client and its own lawyer beyond those ordered by a court to be
    paid or assessed against an opposing party, and an award of costs that the
    court directs one litigant to pay to another litigant:
Skyline
, at
    para. 8.  However,
Skyline
does not address the notion of differing
    dates of default for the failure to pay an award of costs, on the one hand, and
    the failure to pay s. 134(5) common expenses, on the other hand.

[37]

In the end, when ss. 85(2) and 134(5) are read in their grammatical and
    ordinary sense, in the context of their legislative purposes and the scheme of
    the Act itself, I see no support for the proposition that s. 134(5) is intended
    to permit a condominium corporation, in the exercise of its discretion under s.
    134(5) to specify a time for payment of common expenses, to effectively enlarge
    the lien perfection period after a default in payment has already occurred.

[38]

Third, the applications judge accepted, at para. 45, CIBCs argument
    that YCCs interpretation of the interplay between ss. 85(2) and 134(5): would
    result in the [condominium] corporation having the unilateral ability to alter
    the deadline for perfecting its lien (and notifying the mortgagee whose rights
    are thereby impacted negatively) for a potentially unlimited amount of time.  YCC
    disputes this, arguing that there is no prejudice to an involved mortgagee
    arising from the deferred registration by a condominium corporation of a lien
    certificate for the payment of s. 134(5) common expenses.

[39]

I agree with the applications judge.  I again underscore this courts
    holding in
Stefco
that the provisions of the Act dealing with the
    collection of common expenses seek to maintain a balance between a condominium
    corporations mandate to collect those expenses and a mortgagees right to have
    notice of a unit owners default in the payment of common expenses.  YCCs argument
    discounts the importance of a mortgagees rights to receive notice of a unit owners
    default and, upon receipt of such notice, to elect whether to take remedial steps
    to cure the default.

[40]

A mortgagee is not entitled to notice of a s. 134(1) compliance
    proceeding initiated by a condominium corporation.  And, under s. 86(3) of the
    Act, the corporation is required to give written notice of its lien to a
    mortgagee only on or before the day a certificate of lien is registered.  Any
    significant delay in registration of the lien, therefore, can result in
    significant delay in the provision of notice to an affected mortgagee of the
    unit owners default and the corporations assertion of a statutory lien
    consequent upon that default.

[41]

This result, in my opinion, would cut sharply against the carefully
    calibrated balancing of stakeholder interests embodied in the Act, including under
    the lien enforcement scheme envisaged by s. 85 and the common expenses
    collection scheme under s. 134.

[42]

As
Stefco
instructs, at para. 42, a mortgagees right to
    receive notice of a unit owners default in the payment of common expenses is
    of significant benefit to a mortgagee.  Delayed notice of a lien to a
    mortgagee, occasioned by the delayed registration of the lien on title, can
    compromise the mortgagees position and statutory rights between the date of
    the unit owners default and the date of the lien claimants lien registration.
    The requirement that notice of the lien be given to the mortgagee permits the
    mortgagee to deal with the outstanding common expense arrears as soon as
    possible to limit further erosion of its mortgage security.

[43]

Consider this example of the risk of prejudice to the mortgagee.
    Assume, as occurred here, that a condominium corporation does not register its
    lien certificate for many months after the unit owners default giving rise to
    the lien.  The mortgagee, unaware that the unit owner has defaulted, advances
    further funds to the unit owner under the existing mortgage.  In these
    circumstances, the prejudice to the mortgagee arising from late notice of a condominium
    corporations statutory lien is manifest.   The mortgagees exposure has been
    increased.

[44]

Fourth, YCC argues that its interpretation of ss. 85(2) and 134(5)
    furthers the consumer protection focus of the Act because it permits a
    condominium corporation to defer the collection of a monetary award (damages or
    costs) obtained under a compliance order and recovery of any Additional Actual
    Costs, by affording a unit owner additional time within which to pay
    outstanding common expenses.  This, YCC submits, furthers the public interest
    by providing a mechanism for the avoidance by the unit owner of the jeopardy
    posed by enforcement proceedings including, potentially, the forced sale of the
    unit in question.

[45]

I would also not accede to this argument.

[46]

I agree that s. 134(5) is designed to permit a condominium corporation
    to forbear enforcement of its right to collect s. 134(5) common expenses by specifying
    a particular time for payment of those common expenses by the unit owner.  But it
    does not follow that the condominium corporation is thereby relieved of its
    obligation to perfect its lien under s. 85(2) simply because the amount claimed
    under the lien is, as a matter of law, to be added to existing common expenses
    in accordance with s. 134(5).  The default giving rise to the lien is the
    failure to pay a monetary award obtained in a compliance proceeding, together
    with any Additional Actual Costs incurred in obtaining the compliance order.
    In this case, the failure to pay relied upon by YCC to assert a lien is the default
    in payment under the Costs Order.   Once that default occurred, s. 85(2) was
    engaged.

[47]

Fifth, meaning may be accorded to both ss. 85(2) and 134(5) of the Act without
    accepting the interpretation of these provisions urged by YCC and without
    forfeiting the opportunity to provide a unit owner with additional time to pay
    outstanding s. 134(5) common expenses.

[48]

As I see it, ss. 85(2) and 134(5) interact in the following fashion: i)
    s. 85(2) contemplates that, in order to preserve priority for its statutory
    lien over other encumbrances, a condominium corporation must perfect its lien
    within the three-month period set out under s. 85(2); ii) the three-month
    period begins to run when the unit owner fails to pay the obligation relied
    upon to invoke the lien; iii) where that obligation arises by reason of a
    damages or costs award in a compliance proceeding, the corporation is obliged under
    s. 134(5) to add those amounts and any Additional Actual Costs, to the common
    expenses owed by the applicable unit owner; and iv) having done so, and armed
    with a perfected lien, the condominium corporation is then free, in the
    exercise of its discretion under s. 134(5), to defer payment of the aggregated
    s. 134(5) common expenses by specify[ing] a time for payment by the owner of
    the unit.

[49]

This interpretation of ss. 85(2) and 134(5), in my opinion, conforms
    with both the lien perfection and the common expenses recovery schemes set out
    under the Act.  It also preserves, in the public interest, the balancing of stakeholder
    interests that underlies the Act by ensuring that a condominium corporation
    must provide notice of and perfect its statutory lien on a timely basis.  And,
    it avoids inconsistency or conflict between ss. 85(2) and 134(5).

[50]

I make this final point regarding the interplay of ss. 85(2) and 134(5)
    of the Act.

[51]

It is true, as YCC points out, that condominium corporations have a duty
    under s. 17(3) of the Act to take all reasonable steps to ensure compliance by
    unit owners with the Act and the condominium Declaration, by-laws and rules.  There
    is also no doubt that s. 134(5), as remedial legislation, is intended to
    insulate a condominium corporation, in the interests of all unit owners, from
    the financial burden of obtaining a compliance order against a defaulting unit
    owner:
Skyline
, at paras. 40 and 46.  Further, it is clear that the s.
    85(1) lien mechanism can be utilized by a condominium corporation to collect
    both the costs of obtaining a compliance order and any damages or costs awarded
    by the court under such an order:
Skyline
, at para. 50.

[52]

However, this does not mean that YCC was obliged to resort to s. 85(1)
    to recover the amount owing under the Costs Order.  That order was enforceable
    against the defaulting unit owner in the same manner as any other money
    judgment: see
Skyline
, at para. 50.  YCC elected to invoke the s.
    85(1) statutory lien mechanism in respect of the Costs Order, as it was
    entitled to do.  But having so elected, it could not then assert the priority
    of its lien over that of other encumbrances without complying with the lien
    perfection rule established by s. 85(2).  Such compliance did not occur here.

(iv)

Conclusion

[53]

For these reasons, I conclude that the applications judge did not err in
    his interpretation of ss. 85(2) and 134(5) of the Act or in the application of
    those provisions to the facts of this case.  YCC failed to register its lien
    certificate within three months of the unit owners default in payment of the
    Costs Order, the default which gave rise to YCCs lien claim.  YCC therefore
    failed to perfect its lien security in accordance with s. 85(2) of the Act.
    Consequently, its lien lost the priority over CIBCs first mortgage that it
    otherwise would have possessed under s. 86(1) of the Act.

(v)

Other Considerations

[54]

One additional consideration, particular to the facts of this case, must
    be addressed.

[55]

The Costs Order in favour of YCC was made on February 14, 2011.  Default
    under the Costs Order occurred on March 17, 2011.  Yet, YCC did not register
    its lien certificate until December 12, 2011, almost six months after the June
    2011 expiration of the three-month lien perfection period set out under s.
    85(2).

[56]

There is no evidence that, at any time prior to the registration of its
    lien certificate, YCC entered into discussions or other communications with
    either of the owners of Unit 302 regarding the timing for payment of the Claimed
    Common Expenses under s. 134(5), which, as I have stressed, originated with the
    Costs Order.   To the point, there is no evidence that YCCs delay in
    registering its lien certificate was intended to assist the unit owners by
    deferring collection efforts regarding the Claimed Common Expenses.

[57]

Yet the quantum of the Claimed Common Expenses continued to mount
    significantly.  The costs awarded under the Costs Order are in the sum of
    $15,000.  As I have said, by May 2014, YCCs lien claim totalled $113,616.68.

[58]

On the record before this court, it appears that YCCs delay in
    registering its lien certificate and the ballooning costs forming part of the Claimed
    Common Expenses arose because of internal YCC matters, including the
    involvement of two different law firms to assist it in obtaining the compliance
    order and in responding to unsuccessful efforts by the defaulting unit owner to
    challenge the validity of the order.

[59]

In brief, it is undisputed that YCC was placed under the administration
    of a court-appointed administrator in November 2010, the administrator fired
    YCCs property manager and YCCs lawyers who had carriage of the compliance proceeding,
    the administrator retained new solicitors for YCC in March 2011 and a new
    property manager, and the outgoing property manager failed to inform its
    successor of the compliance proceeding and the Costs Order.  As a result, YCCs
    new property manager appears to have first learned of these matters on an
    unspecified date in June or July, 2011.

[60]

Further, the record indicates that, although YCCs new solicitors
    obtained a copy of the issued and entered Costs Order by June 23, 2011, a
    demand for payment of the Claimed Common Expenses was not forthcoming until
    August 15, 2011, almost two months later.

[61]

The main component of YCCs $113,616.68 lien claim as at May 2014
    consisted of $82,261.88 for legal costs, of which $44,272.63 represented costs
    billed by YCCs first solicitors.  The balance represented costs charged by
    YCCs second solicitors, in the sum of $37,989.25, plus interest and additional
    miscellaneous costs.  In the result, by the time Unit 302 was sold, the amount
    owed by the unit owners as s. 134(5) Claimed Common Expenses was more than
    seven and a half times the amount originally awarded under the Costs Order.

[62]

These facts, of course, do not affect the proper interpretation of ss.
    85(2) and 134(5) of the Act.  However, they do paint a compelling picture of
    undue delay by YCC in seeking to enforce its lien claim and recover the Claimed
    Common Expenses, with attendant adverse financial consequences for the owners
    of Unit 302.

[63]

I therefore agree with CIBCs submission that, on this record, it
    appears that the perfection of YCCs lien claim simply fell between the
    cracks.  This strongly militates in favour of the conclusion that YCCs August
    2011 demand letter did not form part of any intended accommodation or
    forbearance plan for the owners of Unit 302 but, rather, that it was a
    misplaced effort to pursue a lien claim that had been forgotten or overlooked,
    and already expired.

(2)

Funds Wrongly Deducted from Sale Proceeds

[64]

On the closing of the sale of Unit 302, YCCs solicitors applied the sum
    of $9,952.01 against the sale proceeds on account of invoices rendered by them
    to YCC.  The applications judge found that, of this sum, $4,530.98 related to
    matters that did not directly concern the process of selling Unit 302.  He
    therefore ordered that $4,530.98 be disgorged and paid to CIBC, together with
    the $94,006.01 net proceeds of sale.

[65]

I do not understand YCC to challenge this part of the applications
    judges decision on this appeal and I see no basis for appellate interference
    with it.

(3)

Costs Appeal

[66]

YCCs factum does not address its proposed appeal from the quantum of
    the applications judges costs award in favour of CIBC.  However, during oral
    argument, YCC submitted that the applications judge erred in his costs ruling
    by fashioning an award that is excessive and that fails to take account of
    alleged misconduct by CIBC in conducting out-of-court cross-examinations and
    examinations, which resulted in unnecessary costs and the generation of largely
    irrelevant or useless materials, including unnecessary transcripts.

[67]

There are several difficulties with this submission.  First, it is true
    that the applications judge concluded, at para. 17 of his costs reasons, that
    the process of gathering out-of-court testimony in this case was laborious
    and yielded negligible output that was out of all proportion both to the
    issues and the amounts at issue.

[68]

However, the applications judge did not fix responsibility for the costs
    associated with that out-of-court process solely on CIBC.  To the contrary, he
    was critical of the conduct of both parties, stating, at para. 18: My
    observations of the conduct of this case born of having had to wade through the
    great bulk of that largely unhelpful output suggests that
there is plenty of responsibility to be shared on all sides

    (emphasis added).

[69]

Second, having addressed what he viewed as the unnecessary expense and
    unproductive nature of many of the cross-examinations and examinations
    conducted by the parties, the applications judge, at para. 19, reduced the fees
    recoverable as costs by CIBC to take account of the excessive time and energy
    expended in these examinations.  In so doing, he expressly considered, and
    rejected, YCCs submission that CIBC should be awarded no costs or only nominal
    or reduced costs in the circumstances of this case.  He stated, at para. 23:

I have already sufficiently accounted for the examinations
    undertaken and have noted that the excesses are a shared responsibility.  The
    degree of sharing should reflect that one party [CIBC] made sincere and advantageous
    settlement offers that were rejected and the unsuccessful party bore
    significant responsibility for the length and number of examinations that were
    undertaken.

[70]

Third, the applications judge also considered whether CIBCs costs
    should be further discounted, or disallowed altogether, either because of the
    suggested novelty of the issue raised or the consumer protection aims of the
    Act.  He provided clear and cogent reasons for his conclusion that neither
    factor warranted any further adjustment.  I see no reversible error in his
    reasoning or conclusions on these issues.

[71]

Finally, the applications judge was alert to the governing principles
    regarding an award of costs.  In the end, he concluded, at para. 26:

Accordingly, I have determined to award CIBC total costs for
    fees and disbursements of $62,510.85 including HST.  This figure is still
    unacceptably high in relation to the amount at issue.  However, it was an
    expense that CIBC offered YCC reasonable and early prospects of avoiding and it
    was one that was inflated due to lack of pragmatism and cooperation for which I
    find fault cannot be laid solely or even predominantly at CIBCs feet.  It is,
    alas, the fairest result I can fashion from the clay that I have been given.

[72]

In all these circumstances, I am not persuaded that the applications
    judges costs award is plainly wrong or tainted by an error in principle.
    Accordingly, there is no basis for appellate interference with his
    discretionary costs ruling.

Disposition

[73]

For the reasons given, I would dismiss the appeal, grant leave to appeal
    costs and dismiss the costs appeal.  I would also order that CIBC deliver its
    brief written costs submissions to the Registrar of this court within 15 days
    from the date of the release of these reasons and that YCC deliver its brief
    responding costs submissions to the Registrar within 15 days thereafter.

Released:

JUN 28 2017                                     E.A.
    Cronk J.A.

GRS                                                  I
    agree G.R. Strathy C.J.O.

I
    agree S.E. Pepall J.A.

[1]

In its factum, YCC also raised a limitations period argument
    in support of its attack on the applications judges decision.  It abandoned this
    argument shortly before the appeal hearing.


COURT OF APPEAL FOR ONTARIO

CITATION: Graillen Holdings Inc. v. Orangeville (Town), 2017
    ONCA 520

DATE: 20170621

DOCKET: C62340

Simmons, Rouleau and Roberts JJ.A.

BETWEEN

Graillen Holdings Inc. and Region of Huronia
    Environmental Services Ltd.

Appellants (Plaintiffs)

and

The Corporation of the Town of Orangeville

Respondent (Defendant)

P. David McCutcheon and Chloe A. Snider, for the
    appellants

John R. Hart and Effie Lidakis, for the respondent

Heard: May 3, 2017

On appeal from the judgment of Justice David Stinson of
    the Superior Court of Justice, dated June 3, 2016, with reasons reported at
    2016 ONSC 3687.

REASONS FOR DECISION

[1]

The appellants appeal from the dismissal of their action for damages
    arising out of the respondent Towns 2010 tendering process and the termination
    of an agreement of purchase and sale, in relation to the disposal of the
    respondents biosolids waste.

[2]

From 2002 to 2010, the appellant, Region of Huronia Environmental
    Services Ltd. (Rohe), together with the related company, the appellant,
    Graillen Holdings Inc. (Graillen), provided collection, haulage, storage and
    disposal services to the Town for its biosolids waste. In 2010, the Town
    decided to put these services out for tender.  It also entered into an
    agreement of purchase and sale with Graillen to purchase its lagoons for
    storage of the Towns biosolids waste.  The agreement of purchase and sale
    contained a termination clause that the Town could exercise at its sole
    discretion after due diligence investigations of the purchases financial
    impact and economic viability and advisability.

[3]

In response to its 2010 tendering process, the Town received the bids of
    Rohe and Entec Waste Management Inc.  Entecs bid proposed a new form of
    dewatering process, which would obviate the Towns need for storage of its
    biosolids waste, and, as a result, the Towns reason to purchase Graillens
    lagoons.  Entecs bid was also slightly less expensive than Rohes bid.  The
    Town awarded the contract to Entec and terminated the agreement of purchase and
    sale with Graillen.

[4]

The trial judge found that the Entec bid was non-compliant because it
    had failed to include certain documents and that, by accepting Entecs bid, the
    Town had thereby breached the 2010 tendering process.  However, the trial judge
    determined that the appellants were not entitled to damages for the Towns
    breach, because they had failed to demonstrate that they would have been
    awarded the contract by the Town.  The trial judge concluded that the Town
    would have instead re-tendered the contract.

[5]

Assuming without deciding that the Entec bid was in fact non-compliant,
    we reject the submission that the trial judge erred in concluding that the tender
    contract would not have been awarded to Rohe, as the compliant bidder.  The
    trial judge found that the appellants did not meet their onus to show on a
    balance of probabilities that the contract would have been awarded to Rohe.  The
    trial judge explained that it was more probable that the Town would have
    re-tendered the contract.  It was open to the trial judge on the evidence to
    reach this conclusion.

[6]

In particular, the 2010 tendering process had disclosed to the Town that
    its preferred option of adopting a dewatering process was viable and therefore
    could be the subject of a new and different tendering process.  In addition,
    after opening the tenders, it became clear that Rohes tender, while compliant,
    suffered from similar problems to those which had occurred during the Towns
    2005 tendering process and that had led to the re-tendering of the 2005 contract.
    Those problems included the fact that the appellants representatives sought to
    renegotiate the length of the contract with Town council, as well as a lack of
    clarity regarding the price and volume in the Rohes bid as submitted.

[7]

Moreover, the Town had the time to re-tender.  Its contract with the
    appellants did not expire until the end of November 2010, and the appellants
    indicated that they were agreeable to an extension beyond that date.  In any
    event, the Town had waste storage capacity until the end of January 2011.

[8]

In these circumstances, we agree with the trial judges conclusion that
    it would have been open to the Town to reject the bids, cancel the tendering
    process, and re-tender with different specifications for the legitimate purpose
    of ensuring that the new bids met its needs:  see
Kamloops Office Systems
    Ltd. v. Kamloops/Thompson
, 2003 BCSC 619, at para. 53.

[9]

With respect to the appellants submissions that the Town did not
    specifically plead that it would have re-tendered had it known that Entecs bid
    was non-compliant, in our view, it was unnecessary that this be specifically
    pleaded in the circumstances of this case.  The appellants asserted that the
    Town would have awarded the contract to Rohe and, initially in their statement
    of claim, sought specific performance of the contract as a remedy.  The Town
    expressly denied the appellants claim that it would have awarded the contract
    to Rohe.

[10]

The
    evidence, as set out above, left it open to the trial judge to conclude that
    the Town would not have awarded the contract to Rohe and that, accordingly, the
    appellants had failed to meet their onus of demonstrating that they would have
    been the successful bidder.

[11]

With
    respect to the agreement of purchase and sale, the trial judge found that the
    Town reasonably and in good faith terminated the agreement of purchase and
    sale, and ordered that the appellants return the Towns deposit.

[12]

Once
    the Town had decided to adopt the dewatering process, the purchase of the
    Graillen property was no longer required and made no economic sense.
    Accordingly, in all the circumstances, the Towns exercise of its option to
    terminate the agreement was made for legitimate business reasons and in good
    faith, with the understanding at that time, that the Entec bid was compliant.
    We see no basis to interfere.

[13]

We
    reject the appellants argument that the trial judge should have inferred from
    the evidence that Town staff knew and did not disclose to Town council that the
    Entec bid was non-compliant.  This is a difficult inference to draw on the
    trial record.  It is apparent from his reasons that the trial judge did not
    draw it.  We see no error in the trial judge not drawing this inference.

[14]

Accordingly,
    the appeal is dismissed.  As the respondent acknowledged, it is therefore unnecessary
    that we address the cross-appeal.

[15]

As
    agreed, the respondent, as the successful party, shall have its partial
    indemnity costs in the amount of $45,000, inclusive of disbursements and HST.

Janet
    Simmons J.A.

Paul Rouleau
    J.A.

L.B. Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Durbin v. Brant, 2017 ONCA 463

DATE: 20170605

DOCKET: C62910

Cronk, Blair and van Rensburg JJ.A.

BETWEEN

Stephen Durbin

Applicant

(Respondent)

and

George F. Brant

Respondent

(Appellant)

APPLICATION UNDER
section 9 and section 11 of the
Solicitors Act
, R.S.O. 1990, c. S.15,
    and rule 14.05(2) of the
Rules of Civil Procedure
, R.R.O. 1990, Reg.
    194.

George Brant, in person

Shoshana Bentley-Jacobs, for the respondent

Heard and released orally: May 31, 2017

On appeal from the order of Justice John R. Sproat of the
    Superior Court of Justice, dated September 30, 2016.

REASONS FOR DECISION

[1]

The appellant seeks to appeal from the application judges order
    referring his account dated February 28, 2016 for assessment under the
Solicitors
    Act
, R.S.O. 1990, c. S.15.

[2]

At the outset of oral argument, we invited the parties submissions on
    whether this court has jurisdiction to hear the proposed appeal.  Having
    received and considered those submissions, we are of the view that the order in
    question (mistakenly called a judgment in the materials below) is
    interlocutory rather than final in nature.  Consequently, any appeal therefrom
    lies to the Divisional Court, with leave, under s. 19(1)(b) of the
Courts
    of Justice Act
, R.S.O. 1990, c. C.43.

[3]

We reach this conclusion because the order at issue does not determine
    the real matter in dispute between the parties.  Rather, the order that the
    contested account be referred for assessment concerns a preliminary procedural
    matter.  The assessment process has yet to run its course.

[4]

We appreciate that the appellant, supported by the respondent, relies on
    this courts decisions in
Ball v. Donais
(1993), 13 O.R. (3d) 322 and
Buck
    Brothers Ltd. v. Frontenac Builders Ltd.
(1994), 19 O.R. (3d) 97 and
    related cases to argue that the order is final in nature because, he says, he
    is now precluded by reason of the order from arguing, on any basis, that the
    account at issue is not subject to referral for assessment under ss. 9 and 11
    of the
Solicitors Act
.  The order therefore, he submits, is final in
    nature and not interlocutory.

[5]

We disagree.

[6]

The appellant has not been deprived of a substantive right because he is
    not precluded from defending the quantum of his account.  That is the real
    matter at issue between the parties and it has yet to be determined.

[7]

In our view, therefore, the order is interlocutory and this court lacks
    jurisdiction to entertain the proposed appeal.

[8]

Accordingly, the appeal is quashed.  As both parties sought to have the
    appeal proceed in this court, this is not an appropriate case for costs thrown
    away of todays attendance.

E.A. Cronk J.A.

R.A. Blair J.A.

K. van Rensburg J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Giannaris v. Toronto (Revenue Services), 2017 ONCA
    473

DATE: 20170608

DOCKET: M44748 (C58508)

Weiler, van Rensburg and Huscroft JJ.A.

BETWEEN

George Giannaris

(Moving Party)

and

City of
    Toronto

(Revenue Services)

(Responding Party)

George Giannaris, acting in person

Christopher J. Henderson, for the responding party

Heard and released orally: June 5, 2017

Motion to review the decision
    of Justice Cronk dated January 22, 2015

REASONS FOR DECISION

[1]

Mr. Giannaris brought a motion seeking to set aside the Registrars
    dismissal of his appeal for delay and granting him a 30-day extension of time
    within which to perfect his appeal from the orders of Frank J. of the Superior
    Court of Justice, dated June 11 and August 7, 2013.  Cronk J.A. dismissed Mr.
    Giannaris motion and granted the Citys cross-motion that he be prohibited
    from bringing any further motions in this proceeding  save for any motion to a
    full panel of this court to review Cronk J.A.s decision  under r. 37.16 of
    the
Rules of Civil Procedure
.  This is the panel review of Justice
    Cronks order. In our opinion there is no merit to Mr. Giannariss submissions
    that he has never been before a court of competent jurisdiction and has been
    denied due process. Having heard the submissions of Mr. Giannaris, with respect
    to the order of Cronk J.A. we hereby confirm the order she made.

[2]

The City is entitled to its costs fixed in the amount of $5000 all inclusive.
    Approval as to form and content of the order is dispensed with.

K.M.
    Weiler J.A.

K. van
    Rensburg J.A.

Grant
    Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Golam v. Kapteyn, 2017 ONCA 469

DATE: 20170606

DOCKET: C63214

Juriansz, Pepall and Trotter JJ.A.

BETWEEN

Golam Mehedi

(Plaintiff) Appellant

and

Bianca Kapteyn, James Slotek
and RBC
    General Insurance Co.

Defendants (
Respondents
)

Golam Mehedi, acting in person

Michael Unea, for the respondents

Heard and released orally: June 2, 2017

On appeal from the order of Justice Andra Pollak of the Divisional
    Court, dated August 4, 2016.

REASONS
    FOR DECISION

[1]

The appellant appeals from the dismissal of his motion to set aside the
    settlement and the consent order dismissing his action.

[2]

He acknowledges signing the settlement but tendered evidence attempting
    to show he did so following a long examination, and was suffering from a
    headache and additional ailments. The motion judge found that he had not met
    his burden of proof and there was no legally justifiable reason to set aside
    the settlement. We agree. The evidence falls short of establishing incapacity.

[3]

The appellant also argues that the amount of the costs awarded do not
    reflect the handwritten endorsement of the motion judge. The official
    transcript indicates otherwise. We are not persuaded to interfere with the
    formal order.

[4]

The appeal is dismissed.

[5]

The respondents are awarded costs fixed in the amount of $1,500,
    inclusive of HST and disbursements.

[6]

The appellants approval of the terms of the formal judgment is
    dispensed with.

R.G. Juriansz J.A.

S.E. Pepall J.A.

G.T.
    Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Heffernan v. Knights of Columbus, 2017 ONCA 534

DATE: 20170626

DOCKET: C63276

Epstein, Hourigan and Paciocco JJ.A.

BETWEEN

Daniel Gerard Heffernan

Plaintiff/Appellant

and

The Knights of Columbus,
Kevin Daudlin,
    William Country,
Charles Maurer,
Peter Lemon, Joe Salini
and
The
    Ontario Knights of Columbus Corporation

Defendants/Respondents

Philip Morgan, for the appellant

Julia Lefebvre, for the respondents

Heard and released orally: June 20, 2017

On appeal from the order of Justice G.M. Mulligan of the Superior
    Court of Justice, dated December 21, 2016.

REASONS FOR DECISION

[1]

This is an appeal from the order
    of the motion judge enforcing a settlement of this action between the appellant
    and the respondents Kevin Daudlin, William Country, Peter Lemon, Joe Salini,
    and the Ontario Knights of Columbus Corporation (the Ontario Respondents).

[2]

The appellant sued the Ontario
    Respondents and two related American parties as a consequence of his suspension
    from the Knights of Columbus, a charitable fraternal benefits organization. The
    parties then engaged in settlement discussions.

[3]

The motion judge found that the
    appellant and the Ontario Respondents entered into a binding settlement
    agreement to resolve the litigation. The appellant submits that he erred in so
    finding, arguing that there was only an agreement in principle to settle the
    action and that the agreement was not finalized by the deadline contemplated by
    the parties  April 22, 2016, being the day of the commencement of a Knights of
    Columbus convention.

[4]

We are not persuaded by these
    submissions that the order of the motion judge should be overturned.

[5]

In our view, there was ample
    evidence supporting a conclusion that the parties had reached a settlement
    agreement. The essential particulars of the agreement had been agreed upon and
    settlement monies had been provided by the Ontario Respondents to their lawyer.
    Furthermore, the form of the release that the appellants counsel requested to
    be included in any agreement had already been executed by some of the Ontario
    Respondents before the appellant purported to terminate the agreement on April
    22, 2016.

[6]

In our view, there was no deadline
    for completion of the terms of the settlement in any of the settlement
    documents or the correspondence among counsel. We agree with the observation of
    the motion judge at para. 29 of his reasons that, had the April 22, 2016
    deadline been a critical component of the settlement, the appellant could have
    insisted on its inclusion in the terms of the agreement. The appellant did not,
    and, accordingly, there was no basis for him to resile from the agreement based
    on a failure to meet this artificial deadline.

[7]

The appeal is
    dismissed. The Ontario Respondents are entitled to their costs of the appeal
    payable by the appellant. We fix those costs at the agreed upon sum of $20,000,
    inclusive of fees, disbursements, and taxes.

Gloria Epstein
    J.A.

C.W. Hourigan J.A.

David M. Paciocco
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Hercules Moulded Products Inc. v. Foster, 2017 ONCA
    445

DATE: 20170601

DOCKET: C62582

Strathy C.J.O., Gillese and Pardu JJ.A.

BETWEEN

Hercules Moulded Products Inc.

Plaintiff (Appellant)

and

Robert J. Foster, Stewart Title Guaranty Company,
    Barat Farlam Millson and estate of Arthur Barat

Defendants (Respondents)

Michael Carlson, for the appellant

Cynthia Kuehl, for the respondents

Heard: April 19, 2017

On appeal from the order of Justice Lederman of the Superior
    Court of Justice, dated July 14, 2016, with reasons reported at 2015 ONSC 4967,
    58 C.C.L.I. (5th) 283.

REASONS FOR DECISION

[1]

Hercules Moulded Products Inc. (Hercules) appeals from summary
    judgment granted in favour of Stewart Title Guaranty Company (Stewart). The
    motion judge held that Stewart was under no obligation to indemnify Hercules
    for certain losses said to have arisen from problems with two adjacent properties
    in Windsor, Ontario. Hercules had obtained title insurance from Stewart with a
    Commercial Lender Endorsement to protect its security, which was a mortgage
    granted by the owner of the Windsor properties to secure money lent to it by
    Hercules.

[2]

At the time the money was advanced under the mortgage, there was a
    large and incomplete excavation for a proposed condominium development on one
    property and a multi-story office building on the other.

[3]

The mortgage transaction closed in February 2006 and the title
    insurance policy (the Policy) was issued the same month.

[4]

Before Herculess mortgage transaction closed in February 2006,
    Hercules was notified of an application brought by the City of Windsor (the
    City) in the Superior Court of Justice for an order allowing the City to fill
    in the excavation on one of the Windsor properties because the condition of the
    property violated the Citys Dirty Yard Bylaw.  Following a hearing in March
    2006, the court issued an order, dated March 22, 2006, allowing the City to
    fill in the excavation because it amounted to a nuisance. The City did so and
    added the cost, over $500,000, to the tax bill for the property.

[5]

The
    mortgage went into default in or around 2007 and Hercules began sale
    proceedings in 2009. In July 2010, Hercules entered into an agreement of
    purchase and sale with Farhi Holdings (Farhi). One week before closing, Farhi
    sent a requisition letter indicating that Hercules had not complied with 13
    development agreements with the City of Windsor that were registered on title
    and complained of an encroachment extending from one property onto the other.
    Farhi refused to close as no satisfactory response was made to these
    requisitions.

[6]

Hercules made claims against Stewart related to:

1.

The cost of filling in the
  excavation, added to the tax bill for the property;

2.

The development
  agreements registered against the title; and

3.

The encroachment.

[7]

The motion judge rejected all the claims on many different grounds. The
    appellant submits that the motion judge erred in rejecting each of these
    claims.
A.

The motion judges decision
(1)

The Excavation
[8]

Dealing first with the cost of filling in the excavation, the motion
    judge characterized the March 22, 2006 court order as a work order,
    consistent with the position taken by Hercules on the motion. The language of
    the Commercial Lender Endorsement required that the work order be outstanding
    as of the Policy date for there to be coverage. The motion judge held that because
    the work order was not outstanding on the date of the Policy, there was no
    coverage.
[9]

After rejecting other arguments that the claim was also covered
    under other parts of the Policy related to fire safety regulations and zoning, the
    motion judge concluded that the claim was also excluded by s. 3(b) of the Policy
    which provided that there was no coverage for matters,
not known to the Company [Stewart], not
    registered in the public records at the date of the Policy, but known to the
    insured claimant and not disclosed in writing to the Company by the Insured
    Claimant prior to the date the insured claimant became an insured under this
    policy.
[10]

The motion judge also concluded that the Policy
    excluded coverage for taxes not shown as existing as of the policy date, and
    that the costs of filling the excavation, added to the tax bill for the
    property after the date of the Policy, were therefore excluded.
[11]

Schedule B of the Policy stipulated the
    following exclusion from coverage,
This policy does not insure against loss or damage (and the
    Company will not pay costs, legal fees, or expenses) which arise by reason of:
1. Taxes, assessments, levies or betterment charges, which are
    not shown as existing liens by the public records.
[12]

The motion judge held that Stewart had been
    prejudiced by Herculess failure to disclose the court application before the
    mortgage transaction closed. Stewarts evidence was that it would have excluded
    this matter from coverage, had it been advised of the application.
[13]

Section 5 of the Policy required timely
    disclosure by the insured of problems, failing which Stewart could deny
    coverage if it had been prejudiced:
a proof or loss or damage signed and sworn to by the insured
    claimant shall be furnished to the Company within 90 days after the insured
    claimant shall ascertain the facts giving rise to the loss or damage  lf the
    Company is prejudiced by the failure of the insured claimant to provide the
    required proof of loss or damage, the Companys obligations to the insured
    under the policy shall terminate
Hercules waited some five years before it advised
    Stewart of the bylaw infraction and the court application by the City.
(2)

The Development
Agreements
and the Encroachment
[14]

The motion judge also rejected the claims for
    coverage related to the development agreements and the encroachments on the
    ground that these matters had no impact on the value of the property. Actual
    loss was required to sustain a claim under the language of the Policy. Farhi
    refused to close the sale for $1.9 million in September 2010, but it purchased
    the property in 2012 for $2.3 million, expressly accepting the development
    agreements and the encroachment.  The motion judge noted, at para. 50 of his
    reasons:
Under condition 7 (iii) of the Policy, the
    liability of Stewart Title is not to exceed the least of certain amounts
    including the difference between the value of the uninsured estate or interest
    as insured and the value of the insured estate or interest subject to the
    defect, lien or encumbrance insured against the policy. Thus, loss is measured
    by the difference in value of the real estate without the defect and the value
    with the defect, such that any diminution in value constitutes damages. In a
    case of a commercial lender policy, the measure of damages is the difference
    between the market value of the mortgage without any defect on title and the
    market value of the mortgage with the title imperfection. (See
National
    Titles Inc. Co. v. Safeco Title Ins. Co
., 661 So. (2d)
    1234 (Fla. Dist. Ct. App., 1995) at p. 1236).
There being no evidence of any loss,
    the motion judge concluded that there was no viable claim against Stewart.
[15]

The motion judge went on to conclude that Farhi
    refused to close the sale because it was concerned about the flight of tenants
    from the office building, not because of the development agreements or the
    encroachment. In any event, he held that the development agreements only
    restricted the use of the property and did not go to title.
[16]

The motion judge stated that coverage was
    excluded under the Policy because Hercules had assumed or agreed to the
    development agreements.
[17]

Section 3 of the Policy excluded coverage for [d]efects,
    liens, encumbrances, adverse claims or other matters: (a) created, suffered,
    assumed or agreed to by the insured claimant.
[18]

The motion judge held that there was no evidence
    of any actual encroachment and, therefore, Farhi had no basis to refuse to
    close the transaction because of the encroachments. He held that an unjustified
    refusal to close the transaction did not make title unmarketable, which was a
    prerequisite to coverage.
[19]

The motion judge held that the absence of any
    loss, as defined by the Policy was also fatal to the claims related to the
    encroachment.
[20]

He held that Herculess failure to notify
    Stewart of the problems at the time of Farhis requisition letter caused actual
    prejudice to Stewart as it had been denied an opportunity to remedy the problem.
[21]

Hercules did not give Stewart notice of a
    potential claim until December 2010.  It appears that the same lawyer had acted
    for the borrower and Hercules.
B.

standard of review
[22]

To the extent this appeal involves the
    interpretation of a standard form contract, with no factual basis specific to
    the parties to assist in its interpretation, its interpretation has
    precedential value and the standard of review is correctness:
Ledcor
    Construction Ltd. v. Northbridge Indemnity Insurance Co.
,
    2016 SCC 37, [2016] 2 S.C.R. 23 at para. 46.
[23]

On the other hand, in the application of his
    interpretation to the particular facts before him, the motion judges findings
    of fact are entitled to deference:
Ledcor
at para. 36;
Housen v.
    Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235 at para. 10.
C.

Analysis
[24]

Interpretation of the policy here, a standard
    form contract, may have unforeseeable consequences that go beyond the interests
    of the parties to this appeal:
Ledcor Construction Ltd. v.
    Northbridge Indemnity Insurance Co.
, 2016 SCC 37, [2016]
    2 S.C.R. 23, at paras. 39-40. For this reason, we do not find it necessary to
    consider all the grounds given by the motion judge for dismissing Herculess
    claim.
[25]

It suffices to say that the decision of the
    motion judge can be affirmed on two bases. First, in relation to the costs of
    filling the excavation that were added to the tax bill for the property,
    coverage was excluded under s. 3(b) of the Policy as it was a matter,
not known to the Company [Stewart], not
    registered in the public records at the date of the Policy, but known to the
    insured claimant and not disclosed in writing to the Company by the Insured
    Claimant prior to the date the insured claimant became an insured under this
    policy.
[26]

To be specific, the application by the City was
    a matter

1.

Not known to Stewart on
  the date of the Policy;

2.

Not registered in the
  public records that a normal title search would disclose;
[1]

3.

Known to Hercules
  before the mortgage transaction closed; and

4.

Not disclosed to
  Stewart.

[27]

We need not consider whether the court order was
    a work order within the meaning of the Policy or whether the addition of the
    cost of filling the excavation to the tax bill changed the character of the
    cost of compliance into a tax bill not covered by the Policy.
[28]

Second, the motion judges conclusions that the
    development agreements and the encroachment did not cause any loss or damage were
    findings open to him on the evidence. This was a sufficient basis to conclude
    that Stewart was not obliged to indemnify Hercules. We need not explore further
    whether the motion judge was correct in his other findings and interpretations
    of the Policy, for example, that the development agreements did not go to
    title, that Hercules had assumed the development agreements, that the
    requisition letter from Farhi did not substantiate the existence of the
    encroachment and that there was no coverage for an alleged encroachment.
[29]

The motion judges finding that Herculess
    failure to give notice to Stewart caused actual prejudice to Stewart was also
    well supported by the evidence.
[30]

As a cautionary note, we observe that
    residential title insurance policies may be quite different from commercial
    lender title insurance policies. The scope of coverage and exclusions may not
    be the same and jurisprudence applicable to one does not necessarily translate
    to the other.
D.

Disposition
[31]

For these reasons, the appeal is dismissed, with
    costs to the respondent fixed at $16,000 inclusive of taxes and disbursements.
G.R. Strathy
    C.J.O.
E.E.
    Gillese J.A.
G. Pardu J.A.

[1]

There was reference to a
completed
work order in
    documentation provided by the City, but there no evidence this related to the
    same matter as the court order.


COURT OF APPEAL FOR ONTARIO

CITATION: Jeffrey (Re), 2017 ONCA 464

DATE: 20170605

DOCKET: C62563

Cronk, Blair and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

and

The Person in Charge of Providence Care

Mental Health Services

Respondents

and

James Beau Jeffrey

Appellant

Michael Davies, for the Appellant

Michael Medeiros, for the respondent, Her Majesty the
    Queen

No one appearing for the respondent, The Person in
    Charge of Providence Care Mental Health Services

Heard: May 30, 2017

On appeal from the disposition of the Ontario Review
    Board dated June 7, 2016.

[1]

On April 24, 2011, Mr. Jeffrey stabbed his mother to death after an
    argument.  On April 30, 2014, he was found not criminally responsible by reason
    of a mental disorder (NCR) on a charge of second degree murder.  Since that
    time he has been under the jurisdiction of the Ontario Review Board and
    detained at Providence Care Mental Health Services in Kingston.

[2]

Mr. Jeffreys last annual review took place on June 1, 2016.  His next
    disposition review hearing is scheduled for June 12, 2017, less than two weeks
    from today.

[3]

At the June, 2016, hearing everyone agreed that Mr. Jeffrey remained a
    significant threat to public safety and that he should remain on a detention
    order at Providence Care.  The sole issue was whether the conditions of his
    detention order should be modified, as proposed at the time by the Hospital
    (supported by him), to provide for broader community access privileges.  In
    spite of the Hospitals recommendation  but after considering the record,
    including the responses of the hospital psychiatrist, Dr. Chan, during his oral
    testimony  the Board declined to vary the terms of the order.  It was of the
    view that several issues needed to be addressed before Mr. Jeffreys community
    privileges could be extended in the manner proposed.

[4]

Mr. Jeffrey appeals from that disposition, which was released on June 7,
    2016.  In his written materials he raised two issues.  First, he submitted that
    the Board failed in its obligation to consider other readily available and
    relevant information, which had not been placed before it, in arriving at its
    decision.  Secondly, he submitted that the disposition is unreasonable.

[5]

Although no one appeared for the Hospital on the argument of the appeal,
    the Hospital filed a factum in which it agreed with the position of the Crown
    on the appeal and did not seek to have the disposition set aside.

[6]

At the outset of his oral submissions, Mr. Davies reasonably advised
    that he would not be pursuing the second argument that the Boards decision was
    unreasonable, in view of the pending disposition hearing in two weeks time.  He
    acknowledged that the issue of how Mr. Jeffreys risk is to be managed is
    better determined at this stage at the upcoming hearing.  However, Mr. Davies
    continued to advance Mr. Jeffreys first ground of appeal.

The NCR Hearing
    Information

[7]

In making this submission, Mr. Davies focussed primarily on the fact
    that the Board did not obtain and consider the reasons for judgment given by
    Scott J. at the time of Mr. Jeffreys NCR finding, together with the various
    medical reports and evidence contained in the trial record.  He argues that, in
    the exercise of its inquisitorial role, the Board should have ensured that it,
    and the Hospital, had this information to consider in order to be able to
    appreciate fully Mr. Jeffreys background and conduct and the nature and
    history of his mental illness: see
Winko v. Forensic Psychiatric Institute
    (BC)
, [1999] SCJ No. 31, at para. 55.

[8]

We reject this ground of appeal for two reasons.

[9]

First, having reasonably accepted that there is little point, for
    practical purposes, in challenging the reasonableness of the Boards June, 2016,
    decision in view of the pending disposition hearing, Mr. Davies is faced with
    the similar considerations regarding his NCR-hearing-information argument.   As
    a practical matter, an order setting aside the Boards decision would not
    result in Mr. Jeffreys release into the community on different terms during
    the past year.  And, to the extent that the information addressed by Mr. Davies
    may be pertinent to the upcoming hearing, efforts can be made by Mr. Jeffrey,
    his counsel, or the Hospital  or ultimately, if so advised, by the Board  to
    obtain it for consideration at that hearing.

[10]

Secondly,
    we would not set aside the Boards June, 2016, decision on the basis of its
    failure to seek out the NCR hearing information in any event.

[11]

While
    the foregoing materials may have provided the Board with some more information
    bearing on Mr. Jeffreys difficulties in the past, it was conceded at the
    hearing that he remains a significant threat to public safety and the
    community, and that his continued detention at Providence Care is required.
    The narrow issue before the Board was whether that risk could be managed safely
    through modified terms of his detention order that would permit him to have
    more liberal access to the community.

[12]

There
    may be cases where part or all of the record at an NCR hearing will be relevant
    at an ORB disposition hearing.  But we see nothing in these circumstances to
    indicate that the NCR hearing information would bear in any significant way on
    the outcome of the hearing before the Board.  The most pertinent evidence was
    contained in the Hospitals report and in the testimony of Dr. Chan concerning
    Mr. Jeffreys current situation and his response to treatment during the period
    of his detention.

[13]

Mr.
    Jeffrey was represented by counsel at the hearing and no effort was made to
    attempt to obtain the reasons of Scott J. or any of the medical evidence that
    formed part of the record at the NCR hearing; nor was Dr. Chan  the Hospitals
    witness  asked any questions relating to that information, or the lack of it.
    This provides at least some measure of how important Mr. Jeffreys counsel felt
    the NCR hearing information to be.

The Decision was not
    Unreasonable

[14]

Although
    Mr. Davies no longer pursues this issue, we are satisfied that the Boards
    decision was reasonable in any event.  The Board had ample information before
    it to determine the single issue it was asked to decide, and it gave four
    reasons for declining to grant Mr. Jeffrey more liberal terms of access to the
    community: (i) Mr. Jeffrey had recently suffered a minor relapse; (ii) his
    emotional issues still needed to be addressed; (iii) substance abuse
    programming was required; and (iv) a full risk assessment addressing potential
    personality disorder issues was required before further modifications to the
    detention order could be considered.

[15]

We
    agree with the Crown that these were all reasonable concerns that properly arose
    out of the evidence at the hearing.  Indeed, Dr. Chans responses to a number
    of questions from various Board members provided support for the Boards
    concerns.  This included Dr. Chans agreement  in response to a specific
    question posed by the Alternate Chair  that a full risk assessment should be
    done before there is any indirect access to the community.

[16]

The
    Board is a tribunal that possesses specialized expertise in its area.  Its
    decisions are entitled to considerable deference.  In our view, its decision
    not to extend more liberal terms of access to Mr. Jeffrey as part of his
    detention order was well within the range of reasonable outcomes informed by
    that expertise.  We see no basis for interfering with that decision.

Disposition

[17]

The
    appeal is therefore dismissed.

E.A. Cronk J.A.

R.A. Blair J.A.

R. van Rensburg J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Kondratiev v. Boyko, 2017 ONCA 444

DATE: 20170601

DOCKET: C63277

Hourigan, Benotto and Roberts JJ.A.

BETWEEN

Alexey Kondratiev and Smart Games Canada, Inc.

Plaintiffs (Appellants)

and

Oleg Boyko

Defendant (Respondent)

Michael D. Wright and Geneviève Cantin, for the
    appellants

Orestes Pasparakis and Andrea Campbell, for the
    respondent

Heard: May 23, 2017

On appeal from the order of Justice E. Stewart of the Superior
    Court of Justice, dated December 21, 2016, with reasons reported at 2016 ONSC 6822.

REASONS FOR DECISION

[1]

The appellants appeal the order of the motion judge striking their
    statement of claim without leave to amend, pursuant to r. 21 of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194.  The statement of claim was
    struck on the grounds that it is time-barred and an abuse of process.

[2]

With the exception of para. 39 of the statement of claim, we see no
    basis to interfere with the motion judges order.

[3]

The other factual allegations made against the respondent with respect
    to events arising before 2013 are identical to the allegations made against him
    in a proceeding against related parties in 2009, in which he was not named as a
    party.  It is clear on the face of the pleadings, therefore, that, as the
    motion judge determined, those pre-2013 claims against the respondent were
    discovered more than two years before the commencement of this action.  We see
    no error in the motion judges rejection of the appellants evidence, as not
    credible, that the 2013 claims were not discovered until 2015.  This
    determination was open to her on the record.  Accordingly, those claims are
    time-barred by virtue of s. 4 of the
Limitations Act
, 2002
,
    S.O. 2002, c. 24, Sched. B.

[4]

We agree with the appellants submission that the motion judge did not
    consider whether the new claim against the respondent, arising out of the
    dissolution of one of the corporate defendants in 2013, as set out in para. 39
    of the statement of claim, was also statute-barred or an abuse of process.  We
    note that in his notice of motion, the respondent only sought to strike paras.
    26 to 38 of the statement of claim as statute-barred and similarly focussed his
    abuse of process grounds on the argument that the claims were out of time.

[5]

On the face of the pleading of para. 39, which, for the purpose of a
    motion under r. 21, the motion judge had to take as true, this claim would not
    be statute-barred because it was not discovered by the appellants until October
    2013.  As a result, on its face, it would not be doomed to fail, as the
    motion judge found was the case with respect to the other pleaded causes of
    action, nor in those circumstances would it constitute an abuse of process.

[6]

Given her other conclusions, the motion judge did not address the respondents
    submissions that para. 39 is unintelligible and fails to identify the necessary
    material facts to support a claim against the respondent, nor the appellants
    motion that the 2015 action be consolidated with the other related proceedings.
    In consequence, those issues remain to be determined.

Disposition

[7]

Accordingly, we allow the appeal to the extent that we set aside the
    motion judges order with respect to para. 39 of the statement of claim.  If
    pursued, the parties respective motions in relation to para. 39 of the
    statement of claim and consolidation are remitted for hearing, as the civil
    team leader of the Superior Court of Justice may direct.

[8]

In light of the appellants modest success on appeal, we do not disturb
    the costs award of the motion judge nor do we make any award of costs on
    appeal.

C.W. Hourigan J.A.

M.L. Benotto J.A.

L.B. Roberts J.A.