CITATION:
Van Bastelaar v. Bentley, 2011 ONCA 660

DATE: 20111021

DOCKET: C53633

COURT OF APPEAL FOR ONTARIO

MacPherson, LaForme and Epstein JJ.A.

BETWEEN

Jeremey Van Bastelaar and Kirsty Van Bastelaar

Plaintiffs (Appellants)

and

Randall
          Mark Bentley, Sonya Mardina Bentley, Kevin

Van Bastelaar,
          Charlene Toth and TD Home and Auto

Insurance
          Company a.k.a. Primmum Insurance

Defendants (Respondents)

Mary-Anne C. Strong, for the appellants

William G. Woodward, for the respondents

Heard:
October 18, 2011

On appeal from the order of Justice John F. McGarry of the
          Superior Court of Justice dated March 29, 2011.

ENDORSEMENT

[1]

The appellants Jeremey and Kristy Van Bastelaar appeal from the order of
    McGarry J. of the Superior Court of Justice dated 29 March 2011 granting
    summary judgment in favour of the respondent TD home and Auto Insurance Company
    a.k.a. Primmum Insurance (Primmum).

[2]

The appellants hold an insurance policy from the respondent.  The policy
    includes underinsured coverage defined by the OPCF 44R Family Protection
    Endorsement.  This endorsement provides that where an inadequately insured
    motorist injures the policyholder in a car accident, the issuer will indemnify
    the policyholder for certain damages beyond the injuring motorists insurance
    coverage.  For the purposes of the endorsement, inadequately insured motorist
    is defined as a motorist whose motor vehicle liability insurance is less than
    the injured partys OPCF 44R family protection coverage amount.

[3]

The Van Bastelaars insurance policy has a family protection coverage
    amount of $1 million.  The defendant Bentleys insurance policy limit is $1
    million.

[4]

The Van Bastelarrs, both of whom were seriously injured, are concerned
    that Bentleys $1 million coverage will be apportioned among four injured
    parties.  Hence they joined Primmum as a defendant with a view to accessing
    their OPCF 44R coverage to make up any difference between what they might
    obtain from Bentley and $1 million.

[5]

The crucial provision to be interpreted is paragraph 4 of the OPCF 44R
    endorsement:

The insurers maximum liability under this change
    form, regardless of the number of eligible claimants or insured persons injured
    or killed or the number of automobiles insured under the Policy, is the amount
    by which the limit of family protection coverage exceeds the total of all
    limits of motor vehicle liability insurance, or bonds, or cash deposits, or
    other financial guarantees as required by law in lieu of such insurance, of the
    inadequately insured motorist and of any person any person jointly liable with
    that motorist.

[6]

The motion judge stated that the definition of inadequately insured
    motorist and paragraph 4 of the OPCF 44R endorsement provided a clear answer:
    An underinsurers obligation to pay does not arise until the total amount of
    insurance held by the tortfeasor at the moment of the accident is less than the
    family protection coverage liability limit.  He concluded that since the
    policies of the parties are evenly matched, so therefore, the underinsurer had
    no exposure to liability.

[7]

The appellants contend that their insurance policy is ambiguous and
    should be interpreted
contra proferentem
the respondent insurer to
    permit access to the underinsurance coverage if the injuring partys insurance
    may be apportioned among several plaintiffs, thereby creating a potential
    shortfall (i.e. less than $1 million) for the appellants.

[8]

We do not accept this submission.  The motion judge relied on this
    courts decision in
Romas v. Prudential Insurance Co. of Canada
, [1996]
    O.J. No. 4185 (Romas), which is explicitly on point, especially at paras.
    2-4.

[9]

The Van Bastelaars submit that the decision of the Supreme Court of
    Canada in
Somersall v. Friedman
2002 SCC 59 has overtaken this courts
    decision in
Romas
.  That is, the reality of the situation is what must
    be considered; not simply that the endorsement is only applied when the
    plaintiffs policy limits exceed that of the injuring drivers insurance
    limits.

[10]

We disagree.  The principal issue in
Somersall
related to whether
    an agreement between the plaintiffs and the injuring driver to limit their
    claims to the available policy limits prevented them from advancing a claim
    against their own insurer for coverage provided by the SEF 44.  It was not
    about whether the injuring driver had adequate policy limits which were equal
    to those provided by the SEF 44.  That is not this case.

[11]

The appeal is dismissed.  The respondent is entitled to its costs of the
    appeal fixed at $7000, inclusive of disbursements and HST.

J.C. MacPherson
    J.A.

H.S. LaForme
    J.A.

G.J. Epstein
    J.A.


CITATION:
Zurich Insurance Company Ltd v. Ison T.H. Auto
          Sales Inc., 2011 ONCA 663

DATE: 20111025

DOCKET: C53568

COURT OF APPEAL FOR ONTARIO

MacPherson, LaForme and Epstein JJ.A.

BETWEEN

Zurich Insurance Company Ltd and Chartis Insurance
          Company of Canada

Applicants (Appellants)

and

Ison T.H. Auto Sales Inc.

Respondent (Respondent)

Hillel David and Mark A. Mason, for the appellants

Theodore P. Charney and Michelle D. Kemper, for the respondent

Heard:
October 19, 2011

On appeal from the judgment of Justice Strathy of the Superior
          Court of Justice dated March 25, 2011.

ENDORSEMENT

[1]

The appellant insurers appeal from the judgment of Strathy J. of the
    Superior Court of Justice dated 25 March 2011, with reasons released on the
    same date and with supplementary reasons released on 21 April 2011.

[2]

The respondent Ison T.H. Auto Sales Inc., by way of cross-appeal, seeks
    leave to appeal from one component of the application judges supplementary
    judgment relating to costs dated 22 June 2011.

The appeal

[3]

The appellants are insurers and the respondent is an insured under their
    policy.  Following a large loss event, caused by a fire and explosion at an
    apartment building in Toronto, the appellants paid out $1.1. million to the
    respondent.

[4]

The respondent claims that it has an additional uninsured loss of
    $700,000.  The respondent commenced an action against the alleged wrongdoer and
    included in the action both its claim for its uninsured loss and the
    appellants subrogated claim (the Ison action).

[5]

A dispute between the appellants and the respondent subsequently arose
    regarding the carriage and control of the Ison action.  The appellants contend
    that they are entitled to have carriage and control of this action pursuant to
    the subrogation clause in the insurance policy.  Alternatively, they submit
    that they are entitled to have meaningful participation in the action and full
    control of their subrogated claim, except on issues of liability common to both
    parties.  Finally, the appellants argue that the respondent breached its duty
    of utmost good faith by barring the attendance of the appellants counsel at
    the examinations for discovery in the Ison action and by its subsequent
    conduct.

[6]

We do not accept these submissions.  On all of these issues, we agree
    with and adopt, in their entirety, the analysis and conclusions of the
    application judge which are, in a word, masterful.  In particular, we agree
    with the application judges careful discussion of the relationship between the
    decision of British Columbia Court of Appeal in
Farrell Estates Ltd. v.
    Canadian Indemnity Co.
(1990), 69 D.L.R. (4
th
) 735 and the
    subsequent decision of the Supreme Court of Canada in
Somersall v. Friedman
,
    [2002] 3 S.C.R. 109.

[7]

We make one other observation.  The appellants do not propose that the
    issue of carriage and control of the Ison action be determined solely on the
    basis of the interpretation of the subrogation clause in the insurance policy.
    Rather, their suggested test, as set out in their factum and developed in oral
    submissions, is: The language of the policy provision should be considered in
    conjunction with the following fundamental issue: What is the fair and sensible
    result?

[8]

In answering this question, the appellants submit that the crucial
    factor to consider is the value of the claims by the insurer and the insured.
    In this case, the insurers say that their claim is a hard $1 million whereas
    the insureds claim is a soft $700,000.  Accordingly, the insurer should have
    carriage and control of the Ison action.

[9]

Accepting, without necessarily agreeing with, the appellants proposed
    test, we think that the appellants focus on the factor of the monetary amount
    of the competing claims is too narrow.  If considerations relating to the fair
    and sensible result come into play, then attention must be paid to the conduct
    of the insured and the insurer in the context of the entire legislation.

[10]

In responding to this submission, the application judge said:

Counsel for the insurers submits that if I have
    discretion as to which party has carriage, it should be given to the insurers
    who have a larger ($1 million) hard claim for property damage as opposed to
    Toronto Hondas smaller ($700,000) soft claim for business losses. There is
    no evidence before me to show that Toronto Hondas business loss claim is any
    less recoverable than the property claim.

There are, as well, other factors, including:

·

the insured has been diligent in pursuing claims on behalf of
    itself and the insurers  this action was commenced almost two years ago and is
    well advanced;

·

the insurers delayed for over 15 months after the fire before
    opening up discussions about subrogation and these were prompted by the
    initiative of counsel for the insured;

·

this application was not commenced until August 4, 2010, more than
    two years after the fire;

·

a great deal of time and effort has already been expended by
    Toronto Honda, and its counsel, in pursuing the claim;

·

Toronto Honda, and the insurers, will benefit from the fact that
    Falconer Charney and Sutts Strosberg act as class counsel and have control of
    that litigation as well, resulting in cost-saving and other synergies; and

·

there is no suggestion that the insurers position has been or
    will be prejudiced in any way by leaving carriage with Falconer Charney and
    Sutts Strosberg, who are unquestionably qualified to act as counsel.

There may be cases where the insurers interest is
    so vastly disproportionate to the insureds interest that it would be
    unreasonable to allow the latter to have control of the litigation. This is not
    such a case.

[11]

We agree with this analysis.  We also note that the application judge is
    case managing, and will hear next autumn, both the class action and the Ison
    action relating to the fire and explosion at the apartment building.  He is
    well positioned to deal with any complaints about the insureds carriage and
    control of, and the insurers participation in, the Ison action as it moves
    forward.

The cross-appeal

[12]

The application judge awarded the respondent costs in the amount of
    $30,000.  The respondent seeks leave to appeal on the basis that the
    application judge erred by not awarding full indemnity costs against the
    appellants due to his misinterpretation of a costs of recovery provision in
    the subrogation clause in the insurance policy.

[13]

The application judge rejected the appellants interpretation of this clause.
    However, in addition he said: Standing back and considering what is fair and
    reasonable, it is my view that the full indemnity claim is not only
    unwarranted, it is entirely out of proportion to what would be fair and
    reasonable for a claim of this kind.  We see no error in this conclusion.

Disposition

[14]

The appeal and cross-appeal are dismissed.

[15]

The respondent is entitled to its costs of the appeal fixed at $18,000
    inclusive of disbursements and HST.  The appellants are entitled to their costs
    of the cross-appeal fixed at $2000 inclusive of disbursements and HST.

J.C. MacPherson
    J.A.

H.S. LaForme
    J.A.

G.J. Epstein
    J.A.


CITATION:
1620307 Ontario
          Inc. v. Sparrow Woodcraft Inc., 2011 ONCA 690

DATE: 20111107

DOCKET: C52768

COURT OF APPEAL FOR ONTARIO

Goudge, Armstrong and Lang JJ.A.

BETWEEN

1620307 Ontario Inc.

Plaintiff (Respondent)

and

Sparrow Woodcraft Inc., The Sparrow Group of Companies,
          2073894 Ontario Limited, Arthur Garofalo and John Hamer

Defendants (Appellants)

No one appearing for the appellants

John Bacon, for the respondent

Heard:
November 3, 2011

On appeal from the order of Justice Douglas K. Gray of the
          Superior Court of Justice dated August 30, 2010.

APPEAL BOOK ENDORSEMENT

[1]

The appellant has indicated he would not be appearing and has not
    appeared, despite the prior endorsements of this court.

[2]

Appeal dismissed as abandoned.  Costs to the respondent fixed at $5000
    inclusive of disbursements and applicable taxes.


CITATION:
Abrahim v. Sliwin, 2011
          ONCA 755

DATE:  20111129

DOCKET: C53565

COURT OF APPEAL FOR ONTARIO

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

BETWEEN

Bibi Abrahim
, Chandrawattie Baksh,
Rajcoomari
          Budhram
,
Julia Carvalho
,
Assunta Cavallo
,
Guglielmina
          Cerilli
,
Apollonia Cifarelli
,
Yu Ying Deng
,
Maria
          Daponte
, Maria Helena Fidalgo,
James Golding
,
Maria Henriques
,
Xuerui Huang
, Shanmugalingam Kandiah,
Raj-Rajinder Lal
,
Yan
          Lan Mak
,
Ramcoomarie Meraram
,
Bharatkumar Patel
,
Minaxiben
          Patel
, Judy Ramsahai, Rosa Roriz, Paramjit Saini,
Anna Santangeli
,
Inacia Serodio,
Chitralaker Singh,
Prittypaul Singh
,
Rajwonti
          Singh
,
Edwin Sukhdeo
,
Sursatie Toolsie
, Jasbir Thind,
Jaime
          Toaquiza
,
Umadat and Helen Wong

Plaintiffs (
Respondents
)

and

Albert Sliwin, Avon Sportswear Limited, Albert
          Sliwinski Limited
, Faylaura Investments Inc. and S
hain Sportswear
          Limited

Defendants (
Appellants
)

Michael R. Kestenberg, for the defendants (
appellants
)

John R. Evans and Neil J. Keating, for the plaintiffs (
respondents
)

Heard:
November 28, 2011

On appeal from the judgment of Justice Gray of the Superior
          Court of Justice dated March 29, 2011.

APPEAL BOOK ENDORSEMENT

[1]

The appeal is dismissed.  See endorsement in C53566.


CITATION:
Accent Metals Inc. v. Stelfab Niagara
          Ltd., 2011 ONCA 691

DATE: 20111108

DOCKET: C51679

COURT OF APPEAL FOR ONTARIO

Juriansz, Rouleau and Watt JJ.A.

BETWEEN

Accent Metals Inc.

Plaintiff (Respondent)

and

Stelfab Niagara Ltd.

Defendant (Appellant)

Michael B. Miller and Michael Arbutina, for the appellant

Rosemary Fisher, for the respondent

Heard and released orally:
October 21, 2011

On appeal from the judgment of Justice C. Raymond Harris of
          the Superior Court of Justice, dated January 22, 2010.

ENDORSEMENT

[1]

The appellant argues that the trial judge erred in refusing an
    adjournment of the trial due to the late disclosure of a schematic drawing of
    the Dustex job.  We disagree.  Adjournment decisions are due deference.  Though
    the trial judge was admittedly brief in his dismissal of the request, that
    dismissal came after hearing the submissions of counsel and taking a recess to
    consider the matter.

[2]

In our view, the appellant suffered no prejudice as a result of the late
    disclosure and the refusal of the adjournment.  The fresh evidence the
    appellant seeks to file, similarly in our view, does not show that it had
    suffered any prejudice.

[3]

The second issue is the appellants claim that the trial judge made only
    a blanket finding of credibility.  We would not give effect to this ground of
    appeal.  Though it is true that the trial judge states that he preferred the
    evidence of Mr. Cadieux, over that of Mr. Morganelli, his analysis does not
    begin or end with that single statement.  Throughout the judgment, the trial
    judge supported his credibility findings with references to other aspects of
    the evidence.

[4]

We also see no merit in the submission that the trial judge erred in
    having failed to rule that the amendment to the interest rate claimed in the
    statement of claim was prevented because of the passage of a limitation
    period.  The change in the interest rate claimed does not represent an entirely
    new claim, but rather a change to a component of an existing claim for monies
    owing.  That claim was filed within the limitation period.

[5]

We also conclude that the argument that the parties had not agreed to an
    18 per cent interest rate must fail.  Although it appears that the trial judge
    erred when he stated that the credit agreement had been signed by both parties,
    we nonetheless see no error in his conclusion that there was an agreement to
    pay interest.  The credit application showing an 18 per cent rate was completed
    and submitted by the appellants bookkeeper.  The respondents evidence was not
    that the credit application had been scrapped, but rather, that it had not been
    accepted as written.  The appellant did not pay for the goods as required and
    because of the default, it ended up in a debtor/creditor relationship with the
    respondent.  There was a sufficient basis on this record for the trial judges
    conclusion that there was agreement on the 18 percent credit terms on overdue
    accounts.

[6]

Lastly on the issue of costs, the appellant is once again faced with the
    high threshold needed to demonstrate that appellate intervention is warranted.
    While we agree that the costs award seems high, particularly in comparison to
    the principal amount awarded, there is no basis for finding that it is plainly
    wrong, or that the trial judge committed an error in principle in making his
    award.

[7]

We also dismiss the application to file fresh evidence.  In our view
    that evidence is of limited probative value in view of the parties position at
    trial that the pricing of the Dustex job was based on weight.  It would not
    have affected the outcome.

[8]

In conclusion, the appeal is dismissed.  Costs fixed in the amount of
    $15,000 inclusive of disbursements and taxes.

R.G.
    Juriansz J.A.

Paul
    Rouleau J.A.

David
    Watt J.A.


CITATION:
Agius v. Home Depot Holdings Inc., 2011 ONCA
          686

DATE: 20111104

DOCKET: C50120

COURT OF APPEAL FOR ONTARIO

Winkler C.J.O., Sharpe J.A. and Cunningham A.C.J.
(ad hoc)

BETWEEN

Charles and Irene Agius

Plaintiffs (Appellants)

and

Home Depot Holdings Inc.

Defendant (Respondent)

Tim Danson and Marjan Delavar, for the Appellants

S. Wayne Morris and Teri Liu, for the Respondent

Heard and released orally:
September 29,
          2011

On appeal from the judgment of Justice Leonard Ricchetti of
          the Superior Court of Justice sitting with a jury, dated February 6, 2009.

ENDORSEMENT

[1]

We do not agree that the jury charge was deficient.  We note that the experienced
    trial counsel representing the appellant made no objection to the charge during
    the trial.  Further, the trial judge did not misstate the appellants testimony;
    rather the impugned passage merely reflected the respondents position.  The
    omission of the summary of the evidence from the written charge would have been
    apparent to the jury and caused no prejudice.  In addition, we disagree with
    the appellants position that the trial judge misstated the law under the
Occupiers
    Liability Act
,

R.S.O. 1990, c O.2.  The trial judge set out the law
    with respect to an occupiers duty clearly.

[2]

On our reading of the record, the trial judge did not exclude the appellants
    except  on agreement of counsel  until after they were called to testify.
    There is no error in this respect.

[3]

As for the ground of appeal alleging that the jury address was
    inflammatory, it was not inappropriate for counsel for the defendants to ask
    the jury to conclude, based on the evidence, that one or more of the witnesses
    were liars.

[4]

The appeal is dismissed.

[5]

Costs to the respondent in the agreed upon amount of $30,000 all inclusive.

W.K.Winkler C.J.O.

R. J. Sharpe J.A.

J.D. Cunningham A.C.J.
ad
    hoc


CITATION:
Ajax Unisex Salon & Spa
          Inc. v. Ezer Professional Corporation, 2011 ONCA 718

DATE: 20111115

DOCKET: C53586

COURT OF APPEAL FOR ONTARIO

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

BETWEEN

Ajax Unisex Salon & Spa Inc. and Jenny Tran

Clients (Appellants)

and

Ezer Professional Corporation

Solicitor (Respondent)

Yan David Payne, for the appellants

Gary Luftspring, for the respondent

Heard:
November 15, 2011

On appeal from the order of Justice Glenn A. Hainey of the
          Superior Court of Justice dated March 14, 2011.

APPEAL BOOK ENDORSEMENT

[1]

On consent, the appeal is resolved as follows:

(1)

The motion judge erred by
    concluding that Master Glusteins order had to be set aside before he had
    jurisdiction to proceed with the motion.  This is because Echlin J.s order in
    effect superseded Master Glusteins order and presaged the matter coming before
    a superior court judge like Hainey J.

(2)

The corporate client can
    proceed directly to an assessment of its account.

(3)

Ms. Tran cannot proceed to
    an assessment of the same account.

[2]

The appeal is allowed on this basis.

[3]

The appellant is entitled to its costs of the appeal fixed at $8000
    inclusive of disbursements and HST.  The $4000 in costs awarded below is set
    aside.

[4]

The material in the record relating to third party health records is
    ordered to be sealed.


CITATION:
Berry v. Berry, 2011
          ONCA 705

DATE: 20111114

DOCKET: C52936

COURT OF APPEAL FOR
          ONTARIO

OConnor
          A.C.J.O., Juriansz and Watt JJ.A.

BETWEEN

Lisa Michelle Berry

Applicant (Respondent in Appeal)

and

Adrian Deryck Berry

Respondent (Appellant in Appeal)

Aaron Franks and Michael Zalev,
          for the appellant

Cory Deyarmond, for the respondent

Heard: October 17, 2011

On appeal from the endorsement of Justice Victor Paisley of
          the Superior Court of Justice, dated October 20, 2010.

Juriansz J.A.:

[1]

Despite
    the substantial deference owed to a trial judges discretion in custody and
    access matters, I have reluctantly concluded that this appeal must be allowed.
    The trial judges reasons demonstrate several errors in his application of the
    factors that govern mobility applications as set out in the Supreme Court of
    Canadas decision in
Gordon v. Goertz
, [1996] 2 S.C.R. 27.

Background

[2]

The
    parties married in Toronto in 2000. They had a son in 2007. The child was born
    with severe health issues and was subsequently diagnosed with Noonans
    Syndrome. He has had surgeries and faces the prospect of further surgeries when
    older. The parties separated early in 2010. They lived and worked in Toronto
    during their entire marriage. The mother grew up in Belleville, and after
    attending the University of Ottawa, moved to Toronto in 2000. The father lived
    in Toronto essentially his whole life. Both mother and father recognize each
    other as loving parents who provide good care for the child. For the most part,
    since their separation, they have acted reasonably and cooperated with each
    other. The parents agreement about the childs need for special medical care is
    an example of this cooperation, and so that need was not in issue in the
    mothers mobility application.

[3]

Upon
    filing an application for divorce, the mother brought an urgent motion
    returnable May 4, 2010 for custody of the child and for an Order granting
    permission to relocate on a permanent basis with the child to Kingston,
    Ontario. Czutrin J. adjourned the motion to June 10, 2010 and held a case
    conference. On June 10, 2010, the matter came before Kelly J.  Kelly J. stated,
    Based upon the evidence before me, I am unable to decide the issue of mobility
    on an interim basis. I am reluctant to allow [the child] to move from Toronto
    to Kingston until there has been an opportunity to determine his best interests
    following a complete and full hearing on all of the relevant evidence. She
    indicated that she was guided by the principle in
Datars v. Graham
(2007),
    41 R.F.L. (6th) 51 (Ont. S.C.J.) at para. 16:

The
        problem that this court faces on this motion [mobility] is that it is
        difficult if not impossible in most cases to complete the extensive child-focused
        inquiry required under
Gordon v. Goertz
on the typically conflicting and
        incomplete affidavit evidence that is often available to the court on interim
        motions.

[4]

Kelly
    J. added that [t]here is conflicting evidence in this case which must be
    resolved by way of a trial and stated her view that there is no compelling
    reason for the wife to move with [the child] to Kingston at this time. There is
    no situation of emergency or crisis. She concluded that the matter of
    mobility should proceed to trial, which was set for September 20, 2010. In the
    interim, she ordered that the childs primary residence be Toronto and that the
    parties have equal access to the child on a rotating 3 day/4 day basis.

[5]

After
    Kelly J.s order, the mother moved to Kingston to be near her sister and
    brother-in-law.

[6]

The
    issues, then, that came before the trial judge were custody, child support and
    the mothers motion to move with the child from Toronto to Kingston. During the
    course of the six day trial, the parties agreed to share joint legal custody of
    the child. The parties also agreed to make written submissions on the child
    support issue if they could not resolve it on consent. This left the mothers
    motion to move to Kingston with the child as the only issue to be decided by
    the trial judge.

[7]

The
    trial judge proceeded on the basis that the sole issue to be decided is
    whether [the child] will reside primarily with his mother in Kingston Ontario,
    or primarily with his father in Toronto, Ontario. He found that it was in the
    childs best interest to reside primarily with the mother in Kingston. His
    order provided access to the father on alternate weekends from Thursday at 5:00
    p.m. to Sunday at 5:00 p.m., to be extended to Monday at 5:00 p.m. in the event
    that a holiday Monday fell on an access weekend. An alternate schedule was
    ordered for when the child commences school on a full-time basis, and for
    holidays.

[8]

On
    December 16, 2010, Rosenberg J.A. stayed the trial judges order. Pending
    appeal, he ordered that the child live with the father in Toronto from Thursday
    at 5:00 pm to Sunday at 7:00 pm, and with the mother in Kingston otherwise.

The Test

[9]

The
    sole issue that remained at trial was the mothers motion to relocate to
    Kingston with the child. The parties agreed that the legal test set out in the Supreme
    Courts decision in
Goertz
, the leading authority on mobility
    applications, applied. In
Goertz
, the mother had sole permanent custody
    of the child and the father had generous access. The father applied for an
    order restraining the mother from taking the child out of the jurisdiction, and
    the mother cross-applied for an order allowing the move. This case differs from
Goertz
in that here both parties are custodial parents and there is no
    previous custody order to vary. Here, there is no threshold issue of whether
    there has been a change of circumstances since a previous custody order, and
    there is no relationship between the child and an access parent to consider. With
    the necessary adjustments, then, the principles from
Goertz
apply to
    this case.

[10]

In
Goertz
, the Supreme Court emphasized that the superordinate
    consideration in a mobility case is the best interests of the child determined
    from a child-centered perspective. The court set out, at para. 14, a number of
    factors to be considered. Taking into account that this case involves two
    custodial parents, those factors can be stated as follows:

·

the existing
      custody arrangement and relationship between the child and each of the
      custodial parents;

·

the
      desirability of maximizing contact between the child and both parents;

·

the views of
      the child (when applicable);

·

the parents
      reason for moving,
only
in the exceptional case where it is relevant to
      that parents ability to meet the needs of the child;

·

disruption to
      the child of a change in custody; and

·

disruption to
      the child consequent on removal from family, schools, and the community the
      child has come to know. [Emphasis in original.]

Analysis

[11]

While
    the trial judge correctly identified the
Goertz
decision as the
    governing authority for this case, he erred in applying its principles.

[12]

In
    particular, the trial judge failed to give sufficient weight to the principle
    that a child should have as much contact with each parent as is consistent with
    the childs best interests. Instead, the trial judges reasons focus almost
    exclusively on the mothers reason for moving. A parents reason for moving is
    a proper consideration only in exceptional cases where it is relevant to the
    parents ability to care for the child. Where applicable, the parents reason
    for moving, like all the factors, should be considered from a child-centred perspective.

(i)
    Maximum Contact

[13]

The
    trial judge erred by failing to give sufficient weight to the maximum contact
    principle. He stated that maximizing the contact between a young child and both
    parents
is
    not the
primary
    goal. It is but one of a number of factors that has to be weighed and
    considered intelligently in a case where the parties cannot agree. In
Goertz
,
    McLachlin J. pointed out that the maximum contact principle is one of the two statutory
    factors set out in ss. 16(10) and 17(9) of the
Divorce Act
, R.S.C.,
    1985, c. 3 (2nd Supp.), and added that the reviewing judge must bear in mind
    that Parliament has indicated that maximum contact with both parents is
    generally in the best interests of the child (
Goertz
, at para. 25).

[14]

The
    trial judges statement that if the child lived primarily with his mother in
    Kingston, the child would continue to have regular contact with his father,
    and his statement that the child would not suffer by virtue of living in
    Kingston, are further indications of his inadequate weighing of the maximum
    contact principle.

[15]

The
    failure to attach appropriate weight to the maximum contact principle led the
    trial judge to make an order under which the child, who had been living
    approximately half the time with the father since the separation, would see his
    father only every other weekend. In addition, under the order, the child would
    spend less time with his paternal grandparents, who had cared for him after the
    mother returned to work at the end of her maternity leave. The trial judge did
    not adequately consider the disruption to the child inherent in this change.

(ii) Reason for
    the Move

[16]

The
    factor to which the trial judge attached the greatest weight was the mothers
    reason for moving to Kingston. In
Goertz
, the Supreme Court clearly
    stated that the parents reason for moving is to be considered only in exceptional
    cases and only as it is relevant to the parents ability to meet the needs of
    the child.

[17]

Here,
    the trial judge did conclude that the mothers reason for moving was relevant
    to her ability to care for the child. That conclusion was based on the trial
    judges view that the paternal extended family had failed to respect the
    privacy and boundaries that a husband and wife have the right to expect and
    that the mother found their presence controlling, suffocating, and
    overwhelming. He also based his conclusion on the mothers lack of support in
    Toronto.

[18]

The
    trial judges conclusions about the paternal family were based on their conduct
    during the marriage and around the time of separation. In fact, the trial judge
    relied on the grandfathers conduct as far back as the time of the childs
    birth in granting the mothers application to move with the child.  He also
    reviewed at length an incident on February 2, 2010, the date the parties
    separated, when the paternal grandfather physically impeded the mother as she
    reached for her child. That conduct was clearly inexcusable, and it is relevant
    to understanding the mothers desire to move. However, in order for it to be
    relevant to the mobility application, it would have to be connected to the
    childs best interests in the circumstances after the parties separation.

[19]

The
    trial judge was also persuaded that the mother had no family support in Toronto
    and couldnt function well there, but that she would have the support of her
    sister in Kingston. This was another reason cited by the trial judge as relevant
    to the mothers ability to meet the needs of the child. However, the mothers
    stated wish to have the support of her sister and a friend in Kingston had to
    be considered in the context that the parties resided in Toronto throughout
    their marriage and the child lived in Toronto his whole life. Her application
    was to relocate the child to Kingston. While the mothers wish to move to
    Kingston and live with her sister is understandable, the evidence did not
    establish that the move was necessary in order for her to meet the needs of the
    child. There was no evidence in this case that she would be anything but a good
    mother to the child no matter where she lived.

[20]

The
    trial judge did mention two recent incidents, but properly did not rely on them
    in determining the mothers ability to meet the needs of the child while
    remaining in Toronto. First, in considering reports that the child said he did
    not want to go to mommys apartment, the trial judge found that this
    sentiment was communicated to the child by the paternal family, albeit
    unintentionally. The trial judge reasoned that attributing this sentiment to
    the child was inconsistent with the Kingston witnesses testimony of how happy
    the child is with his mother. Second, the trial judge criticized the father for
    unilaterally deciding to take the child off pain medication prescribed by his
    doctor.

[21]

The
    fresh evidence also indicates that the mother recently failed to involve the
    father in the childs enrolment in school.

[22]

These
    recent incidents are mentioned here as a reminder to the parties that parents
    and their families should actively foster a childs relationship with both
    parents. As well, all significant decisions about the child must be discussed
    with the other custodial parent. Both parents need to minimize conflict between
    them for the benefit of their child.  I encourage them to continue to exhibit
    the cooperation they have largely shown in ensuring that their childs best
    interests are met.

(iii)
    Choosing between parenting plans

[23]

The
    trial judges reasons, read as a whole, disclose that he lost sight of the fact
    that the matter before him was the mothers application to relocate with the
    child. He made clear that his approach to the situation and his analysis were
    based upon the mother living permanently in Kingston and the father in Toronto.
    He saw his task as choosing between the parenting plans each had submitted. In
    doing so, he committed both an error of fact and an error of law.

[24]

It
    was an error of fact because the trial judges finding that the mother
    permanently moved to Kingston was contrary to the evidence. The mother stated
    clearly in her evidence in chief that if the court refused her application she
    would live in Toronto.

[25]

It
    was an error of law because the sole issue to be decided at trial was whether
    the mothers application to relocate to Kingston with the child should be granted
    as in the childs best interests. The trial judge erred by regarding the sole
    issue as whether [the child] will reside primarily with his mother in Kingston
    Ontario or primarily with his father in Toronto, Ontario.

Conclusion

[26]

The
    findings of the trial judge indicate that the child has always benefited from
    having two loving, caring and engaged parents.  Both parents also accept each
    other as such. Since the separation, the child has lived, more or less equally,
    with each parent in turn. The child has close bonds with the paternal extended
    family. The child is especially close to the paternal grandfather. Since the
    mothers move to Kingston, the child has also developed relationships with her
    family there.

[27]

Given
    the young age of the child, and the finding of the trial judge that the views
    of the child, to the extent they are capable of being known, do not reflect his
    actual views, there are no views of the child to consider. This is not an
    exceptional case in which it is appropriate to consider the mothers reasons
    for moving. As far as minimizing disruption to the child is concerned, reducing
    the time the child lives with the father from approximately half the time to
    every second weekend, is highly disruptive. It is also disruptive to be regularly
    shuttled back and forth between two cities. While the maximum contact principle
    is not absolute, it is mandatory. The trial judge did not attach proper weight
    to the maximum contact principle and instead relied inappropriately on the
    paternal familys past conduct as justifying the mothers desire to move.  As the
    court decided in
Woodhouse v. Woodhouse
(1996), 29 O.R. (3d) 417 (C.A.),
    while being with a a happy parent has a positive effect on a child, the legal
    test focuses on maximizing contact with both parents and minimizing disruption
    to the child.

[28]

I
    would grant the appeal, set aside the order below and replace it with an order
    refusing the mothers application.

[29]

If
    the parents are unable to agree on a schedule for the childs living
    arrangements in Toronto, they may re-attend before the Superior Court.

[30]

The
    father did not seek costs in this court nor in the court below.

[31]

I
    would suspend the effect of this courts order for 60 days to allow for a
    smooth transition.

R.G. Juriansz J.A.

I agree D.R. OConnor A.C.J.O.

I agree David Watt J.A.

RELEASED:

November 14, 2011


CITATION:
Bond v. Brookfield
          Asset Management Inc., 2011 ONCA 730

DATE: 20111123

DOCKET: C53770

COURT OF APPEAL FOR ONTARIO

Laskin, Rosenberg and Rouleau JJ.A.

BETWEEN

Wanda Bond

Appellant (Plaintiff)

and

Brookfield
          Asset Management Inc. Brookfield
          Special Situations Partners Ltd. 1439442
          Alberta Ltd.

Respondents (Defendants)

Proceeding Commenced Under the Class Proceeding Act, 1992

John W. McDonald and John W. Findlay, for the appellant

Howard A. Gorman, for the respondents

Heard: November 16, 2011

On appeal from the judgment of
          Justice Paul Perell of the Superior Court of Justice, dated April 26, 2011.

ENDORSEMENT

[1]

We agree with the motion judge that on this record
    Birch Mountain could not be an affiliate of Tricap simply because Tricap had an
    unexercised conversion right to obtain voting shares.  Since Birch Mountain is not a corporation to
    which the OBCA applies and none of the other defendants are affiliates of Birch
    Mountain, it follows that even assuming the appellant held shares in Birch
Mountain,
she is not a complainant under the OBCA.  She is not the holder of a security of a
    corporation, meaning an Ontario corporation, since Birch Mountain
is an
Alberta corporation, nor of any affiliate of Birch
    Mountain within that part of the definition of complainant in s. 245 relied
    upon by the appellant.

[2]

Accordingly, as held by the motion judge in para. 62 of
    his reasons, the OBCA
does
not apply so as to give
    Ontario jurisdiction.

[3]

We also entirely agree with the motion judges reasons
    on
forum non conveniens.
Most of the
Muscutt
factors strongly favour Alberta as the convenient
    forum.  At its core, this proposed class
    action is about oppression of an Alberta corporation and the shareholders of
    that Alberta
corporation
. The applicable law is the
    Alberta company law, and most of the important contractual provisions specify
    Alberta law as the applicable law.  Importantly, as the motion judge noted, there are outstanding
    proceedings in Alberta where the Alberta Queens Bench supervised the sale of
    Birch Mountains assets and is still supervising its bankruptcy.  Many of the allegations in the statement of
    claim concern dealings related to the asset sale and bankruptcy. The Alberta
    courts are in a far better position to deal with those allegations. The
    appellant asks us to infer, in the absence of direct
evidence,
    that
most of the witnesses would be in Ontario. Like the motion judge we
    are not prepared to draw that inference in the absence of some indication of
    what their evidence would be or why it would be required.  On the materials before us, much of the
    Ontario evidence appears to consist of documents.  It is not at all apparent what Ontario
    witnesses would be required.

[4]

Accordingly, the appeal is dismissed with costs fixed
    on a partial indemnity basis at $20,000 inclusive of disbursements and HST.

John Laskin J.A.

M. Rosenberg J.A.

Paul Rouleau J.A.


CITATION:
Canadian Soccer Association v. Hyundai Auto Canada
          Corp., 2011 ONCA 704

DATE: 20111114

DOCKET: C53447

COURT OF APPEAL FOR ONTARIO

Blair, LaForme J.J.A. and Benotto J. (
ad hoc
)

BETWEEN

Canadian Soccer Association

Respondent

and

Hyundai Auto Canada Corp.

Appellant

Lawrence Theall and Andrea Gorys, for
          the appellant

Pasquale Santini, for the
          respondent

Heard:
October
          12, 2011

On appeal from the judgment of
          Justice Robert J. Smith of the Superior Court of Justice, dated
          February 15, 2011.

ENDORSEMENT

[1]

Hyundai Auto Canada (Hyundai) appeals the summary judgment requiring
    it to pay $175,000 plus interest and costs to the Canadian Soccer Association
    (CSA).

[2]

CSA is a non-profit organization that promotes and develops soccer at
    all levels across the country.  Hyundai is the wholesale distributor of Hyundai
    cars.  In early 2007, Hyundai and CSA signed a two year sponsorship agreement.
    CSA made two presentations to Hyundai in 2006.  The presentations highlighted
    the opportunity for Hyundai to co-brand with CSAs other sponsors. The most
    important other sponsor was Tide.

[3]

The agreement gave Hyundai the right to sponsor CSA festivals and to use
    the name of the festivals in its promotional material.  In return, Hyundai
    would pay CSA $125,000 for 2007 and $175,000 for 2008.  The agreement
    specifically referred to Tide as a title sponsor and obligated CSA to obtain
    the rights for Hyundai to use Tides trademarks and the name Tide Mini-Soccer
    in its promotions.  The agreement included a clause allowing either party the
    right to terminate the agreement for default of the other provided that the
    party not in default give 90 days notice to the other so that the default
    might be cured.

[4]

Before the second year payment was due, problems arose in the management
    of CSA and this resulted in negative publicity.  Tide withdrew as a title
    sponsor.  Hyundai terminated the agreement and did not give CSA the required 90
    days notice provided for in the agreement in order to remedy the alleged
    breach.

[5]

CSA commenced an action against Hyundai for breach of the sponsorship
    agreement and sought $175,000 representing the 2008 payment.

[6]

The parties agreed that there were no material facts in dispute
    requiring a trial and proceeded to a summary judgement motion.

[7]

The motions judge read the agreement in the context of the underlying presentations
    and found that Hyundai had breached the sponsorship agreement when it
    terminated the contract.  He concluded that Tides continued involvement was
    not a material term of the contract.  He found that Tide could be replaced by
    another sponsor.  He also found that Hyundai should have given 90 days notice
    of termination.

[8]

Hyundai alleges that the ongoing involvement of Tide was a material term
    of the contract, the breach of which could not be cured, thus the notice period
    was irrelevant.  Hyundai argues that the motions judge misapprehended the
    factual matrix of the sponsorship agreement and misinterpreted its terms.  In
    particular, Hyundai argues that paragraph 2(c)(iv) of the agreement was
    misinterpreted.

[9]

Paragraph 2(c)(iv) provides that Hyundai shall have:

The right to use and display the words Canadian
    Soccer Association, and Tide Mini Soccer with presenting partner where
    applicable and the initials CSA

[10]

The appellant argues that the only way to give this clause meaning is by
    interpreting it to mean that Tide will remain the sponsor.  Tide is the
    official name of the Festival.  The motions judge found that the addition of
    the words with presenting partner where applicable indicates that sponsors
    could change.  Hyundai argues that this misapprehends the distinction between
    title sponsor (which meant Tide) and presenting partner (which meant other
    sponsors such as Telus and Adidas).  These terms are not defined in the
    agreement, but are set out in the presentation material.

[11]

Whether or not the motions judge confused the terms title sponsor and
    presenting sponsor is irrelevant.  The agreement, read as a whole discloses an
    intention that the title sponsor, namely Tide, could be changed.

[12]

Paragraph 2(c)(i) of the agreement provides that:

In connection with the
    Festivals, the CSA grants or agrees to provide to [Hyundai]

(i)   Associate
    sponsorship rights of the Festivals and category exclusivity in the automotive
    manufacturer category.  [Hyundai] agrees to use the official name of the
    Festivals
as designated by CSA.
(emphasis added)

[13]

The name that CSA designated was Tide Mini-Soccer.  It is implicit in
    paragraph 2(c)(i) that CSA had the right to designate another title sponsor.
    There was no warranty clause which guaranteed that Tide would remain a
    sponsor.

[14]

We agree with the motions judge that the continued involvement of Tide
    was not a material term of the contract.  Notice of termination should have
    been given in accordance with the clear words of the contract.

[15]

The appeal is dismissed.  The parties agreed upon the quantum of costs
    which are fixed in the amount of $10,000 and payable to CSA plus disbursements.

R.A.
    Blair J.A.

H.S.
    LaForme J.A.

M.L. Benotto J. (
ad
    hoc
)


CITATION:
Chan v. Holland, 2011 ONCA 738

DATE:  20111124

DOCKET: C53092

COURT OF APPEAL FOR ONTARIO

Feldman, Sharpe and Simmons JJ.A.

BETWEEN

Anita Siu Lai Chan

Plaintiff (Appellant)

and

James Holland
          Barrister and Solicitor, Anthony Sik Kong Ngai and

Anthony
          Richardson & Associates

Defendants (Respondents)

and

Sue Chen, Kai Kwong Yeung and

Yeung & Associates

Third Parties

Diana Edmonds, for the appellant

Natalie Leon, for the respondent Anthony Ngai

Heard and endorsed: November 22, 2011

On appeal from the judgment of Justice James M. Spence of
          the Superior Court of Justice dated December 3, 2010.

APPEAL BOOK ENDORSEMENT

[1]

In our view, the motion judge did not err in granting summary judgment
    in this case.  Based on the record, he essentially concluded that there is no
    air of reality to the appellants claim that she believed the respondent was
    pursuing her tort claim.

[2]

The appeal is therefore dismissed with costs fixed at $7,500 inclusive
    of disbursements and H.S.T.


WARNING

THIS IS AN APPEAL UNDER THE

CHILD AND FAMILY SERVICES ACT

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

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

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

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

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

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

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

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

CITATION:
Childrens Aid Society of the
          Regional Municipality of Waterloo v. C.A.D., 2011 ONCA 684

DATE: 20111104

DOCKET: C53695

COURT OF APPEAL FOR ONTARIO

Blair, Juriansz JJ.A. and Pepall J. (
ad hoc
)

BETWEEN

The Childrens Aid Society of the Regional Municipality
          of Waterloo

Applicant (Respondent in Appeal)

and

C.A.D.

Respondent (Respondent )

and

Z.S.

Respondent (Appellant in Appeal)

Brigitte Gratl, for the appellant

Kim Putman, for the respondent Childrens Aid Society of the
          Regional Municipality of Waterloo

Heard: October 26, 2011

On appeal from the order of Justice Wendy L. MacPherson of the
          Superior Court of Justice dated April 12, 2011.

Juriansz J.A.
:

[1]

The
    appellant, the biological father of the child, appeals the decision of the
    Superior Court dismissing his appeal from the order of Crown wardship without
    access granted by the Ontario Court of Justice on summary judgment. An order of
    Crown wardship without access has the effect of terminating parental rights making
    the child eligible for adoption.

Background

[2]

When the
    child was born in February 2008, her paternity was not clear. The child was
    initially in the care of her mother and was apprehended by the Childrens Aid Society
    of the Regional Municipality of Waterloo (the Society) on July 28, 2008 from
    a person with whom the mother placed the child because she felt unable to cope
    with her. The appellant, who was living in Port Elgin, was confirmed as the
    father by DNA testing. The Society had concerns about the fathers physical
    health, as it received records that indicated he had a history of blackouts,
    head trauma resulting from significant physical abuse by his father, abuse of
    prescription drugs, and regular use of marijuana. The Society communicated its
    concerns to the father and advised him of the information he needed to provide,
    and the actions he needed to take, in order to address those concerns.

[3]

The Society
    arranged twice weekly access for the father. The father had difficulty
    exercising that right of access because of transportation obstacles, and on
    February 21, 2009, he notified the Society that he had moved to Kitchener.
    After his move, he exercised regular and consistent access.

Orders Below

[4]

On March 25,
    2009, an order was made making the child a Society ward for a four month period.
    The Societys summary judgment motion for an order of Crown wardship without
    access was eventually heard by Hardman J. on March 23, 2010. The father opposed
    the motion and sought placement of the child in his care. The mother supported
    the motion, but indicated that if the child were placed with the father, she
    would want access.

[5]

Hardman J.
    correctly identified the test on a motion for summary judgment as whether there
    is a need for a trial to establish the material facts that are necessary to the
    determination of the application. She also appropriately identified the use of
    the summary judgment rule as a procedural remedy to promote the childs best
    interests and to support the time limitations established by s. 70 of the
Child
    and Family Services Act
, R.S.O. 1990, c. C.11.  Hardman J. gave
    comprehensive reasons for granting the order. The father had few community or
    family supports, had not provided medical information to explain his blackouts
    or the continuing effects of his head trauma, had failed to complete the
    counselling and parenting programs the Society had suggested, had not ceased
    the regular marijuana use he had commenced at age 13, and showed lack of
    insight about the matters that were of concern to the Society.  Contradictions
    in the fathers own material gave rise to concerns about reliability, and there
    was recognition that any continuing access by the father would have to be on a
    supervised and trial basis.  Based on the fathers admission that he posed a
    risk to the child, the fact that he had not addressed those risks in the
    preceding year, and that he had not provided any evidence that change
    supporting the return of the child was even in distant view, the motion for
    summary judgment was granted and the child was made a Crown ward with no
    access.

[6]

The fathers
    appeal was heard by MacPherson J. on March 24, 2011. On April 12, 2011, she
    released reasons dismissing the appeal.

[7]

The issue on
    appeal before MacPherson J. was whether the motion judge erred in finding that
    there was no genuine issue for trial. The father submitted that the motion judge
    made impermissible findings of credibility and findings of fact not supported
    by the evidence.  It was further submitted that the Parenting Capacity
    Assessment of Dr. Perlman was improperly relied upon.

[8]

The father
    also tendered fresh evidence of his marriage to a woman who was his girlfriend
    at the time the original order was made, the birth of a new child to this
    couple, and that while the Childrens Aid Society of Grey Bruce had commenced a
    protection application, the new child remained in the parents care subject to
    supervision by that society. The respondent Society also filed an affidavit
    confirming that the child who is the subject of this appeal has been placed in
    an adoptive home on May 31, 2010 and has settled in and adjusted well to that
    home.

[9]

The appeal
    judge dismissed the appeal, rejecting the fathers submissions that there were
    factual issues that required a trial, that there had been inappropriate
    findings of credibility, and that there was any error in the motion judges
    reliance on Dr. Perlmans assessment. The fresh evidence did not show that the
    father had developed insight into his deficiencies or that he would be amenable
    to taking steps to address his shortcomings. The three year old child had been
    in the Societys care for all but the first five months of her life, and was in
    an adoptive home where she was doing well. The order of Crown wardship with no
    access continued to be the only order in the childs best interests.

Analysis

[10]

For the
    reasons set out by MacPherson J., there is no merit to the argument that the
    motion judge erred by granting summary judgment.

[11]

The father
    has again tendered new evidence on this appeal. The Childrens Aid Society of
    Grey Bruce has withdrawn its protection application in relation to the fathers
    new baby, replacing it with a plan of service. The father submits that this new
    evidence demonstrates that there is at least a triable issue as to his capacity
    to parent.

[12]

The fresh
    evidence does demonstrate the fathers progress as a parent. He is to be
    commended for that progress. It is evident that the father loves the child and
    deeply wants to be a parent to her. From his perspective, proceeding with this
    second appeal is understandable. The law, however, requires that the analysis
    be conducted from the perspective of the childs best interests.

[13]

For the first
    five months of her life, the child was raised by and attached to her mother.
    Initially, she had no relationship with her father. It was only after the
    Society became involved that the child had weekly and then biweekly supervised
    visits with the father from late 2008 to May 14, 2010. The child has not seen
    the father since then. Those visits gave the child the opportunity to form a
    connection with the father, but not to cultivate a deep and abiding
    relationship.

[14]

The fathers
    suitability to parent the child was thoroughly and carefully assessed first by
    the motion judge and then by the appeal judge. The evidence, including the
    fresh evidence, shows that the father continues to develop as a parent, but it does
    not dispel the continuing concerns about his capacity to care for the child.
    Since May 31, 2010,
the
    child has been with a family who wishes to adopt her and the adoption has been
approved pending these legal
    proceedings.

[15]

It is in the
    child
s
    best interests, now, that there be finality, and that she have a permanent
    home.
The fresh
    evidence, though admitted, does not give reason to displace the order of Crown
    wardship with no access.

Conclusion

[16]

The appeal is
    dismissed. The Society does not seek costs.

R.G. Juriansz J.A.

I agree R.A. Blair
    J.A.

I agree S.E. Pepall J. (
ad hoc
)

RELEASED:  November 4, 2011


CITATION:
Christopher v. Inshan, 2011
          ONCA 677

DATE: 20111101

DOCKET: C52874

COURT OF APPEAL FOR ONTARIO

Doherty, Moldaver and Feldman JJ.A.

BETWEEN

Anthony Christopher

Plaintiff (Appellant)

and

Nazira Inshan,
          Trevor Ramdeen, Amanda
          Cheslock, and Margaret Bernat

Defendants (Respondents)

Anthony Christopher, appearing in person

Ashley Artopoulo, for Amanda Cheslock

Robert Bowman, for Nazira Inshan and Trevor Ramdeen

Heard:
April 13, 2011

On appeal from the judgment of
          Justice Lois B. Roberts of the Superior Court of Justice dated October 4,
          2010.

ENDORSEMENT

[1]

We have now received and reviewed
    the reasons and the parties written submissions.

[2]

This appeal is
fact driven.  On
    the evidence before her, the motion judge found that the appellant entered into
    a binding settlement agreement with the respondents and that the respondents
    did not accept his subsequent repudiation of it.

[3]

Those findings were open to the
    motion judge and we see no basis for interfering with them.  In particular, we
    agree with the motion judges analysis of the appellants disability and her
    finding that it did not render him incapable of entering into the settlement
    agreement of which he had a full and complete understanding.

[4]

In the result, we have not been
    persuaded that the motion judge erred in her findings of fact or in her legal
    analysis. Accordingly we would dismiss the appeal.  The respondents are
    entitled to costs fixed at $1,500, inclusive of disbursements and H.S.T.

Doherty J.A.

K. Feldman J.A.

M.J. Moldaver J.A.


CITATION:
Conn v. Goldstone
          Resources Inc., 2011 ONCA 727

DATE: 20111121

DOCKET: C53870

COURT OF APPEAL FOR ONTARIO

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

BETWEEN

Gary Conn

Plaintiff (Appellant)

and

Goldstone Resources Inc., Phillip Cunningham, Morris
          Prychidny, Paul Little, Jeffrey Elliot, Ania Baska and Ross McGroarty

Defendants (Respondents)

Peter A. Downard and Vera Toppings, for the appellant

Patricia Virc, for the respondents Baska and McGroarty

Murray Stieber, for the respondents Cunningham, Prychidny,
          Little and Elliot

Joseph DAngelo, for the respondent Goldstone Resources Inc.

Heard and released orally:
November 18, 2011

On appeal from the judgment of Justice Kelly A. Gorman of the Superior
          Court of Justice dated May 24, 2011.

ENDORSEMENT

[1]

The appellant appeals the order of a motion judge granting summary
    judgment to the respondents, dismissing the action.  The appellant alleged that
    he was defamed by a paragraph in the respondents statement of defence in a
    wrongful dismissal action, which was allegedly circulated outside of the
    proceedings prior to being filed with the court.  The statement of defence
    alleged that his termination from employment was justified for several reasons
    including that he participated in:

Installing undisclosed cameras, equipped with
    microphones, in the living accommodations where geologists and mining staff
    spent their off hours at Goldstones six bedroom house in Beardmore which
    serves as an office and residence for the companys mining staff, presumably
    for the purpose of secretly monitoring their private activities for his own
    amusement.  By doing so, Conn invaded the employees privacy and committed a
    criminal act of dishonesty [...]

[2]

The respondent sought summary judgment on the basis that the alleged
    defamatory statements which form the basis of the claim are true and therefore that
    there was no genuine issue requiring a trial.  The motion judge accepted that
    position, finding that on the record before her, the respondent had established
    the substantial truth of the allegations.

[3]

In so finding the motion judge noted that the sole issue in the
    pleadings that was not admitted was the assertion that the appellant installed
    the surveillance equipment for his own amusement and the implication that
    this was done for his personal gratification as a peeping tom or voyeur.

[4]

The motion judge held that the purpose for which the appellant installed
    the cameras was immaterial because as we interpret her reasons, the sting of
    the defamation was that the appellant unlawfully and without legal
    justification intercepted the private communications of these employees.

[5]

In our view there was sufficient evidence to support the motion judges
    conclusion on this issue.  The appellant filed no affidavit material on the
    motion, in the face of the requirement in Rule 20.02(2) requiring a responding
    party may not rest solely on the allegations or denials in the partys
    pleadings, but must set out, in affidavit material or other evidence, specific
    facts showing that there is a genuine issue requiring a trial.  In contrast the respondents filed affidavits from employees generally supporting
    the conclusions which she reached.

[6]

Accordingly, the appeal is dismissed.

[7]

The respondents are entitled to their costs of the appeal fixed as
    follows: Goldstone Resources Inc. $9,000, the Cunningham respondents $6,000 and
    the Baska respondents $5,000, all inclusive of disbursements and HST.

J.C.
    MacPherson J.A.

H.S. LaForme
    J.A.

Hackland J. (
ad hoc
)


CITATION:
Cotton v. Monahan, 2011 ONCA 697

DATE: 20111110

DOCKET: C52166

COURT OF APPEAL FOR ONTARIO

Sharpe, Armstrong and Lang JJ.A.

BETWEEN

Walter Bradley Cotton and Shelley Anne Cotton

Plaintiffs (Appellants)

and

Gary Joseph Monahan and Laurie Lynn Monahan

Defendants (Respondents)

Paul Amey, for the plaintiffs
          (appellants)

Gerry Smits, for the defendants
          (respondents)

Heard:
November
          3, 2011

On appeal from the judgment of Justice H.S. Arrell of the
          Superior Court of Justice dated April 30, 2010, with reasons reported at 2010
          ONSC 1644, 93 R.P.R. (4
th
) 212.

ENDORSEMENT

[1]

The appellants claim damages measured by the cost of electrical,
    plumbing and structural repairs to the house they purchased from the
    respondents. Some of the defects the appellants repaired were the result of
    home improvements done by the respondents themselves, although the trial judge
    found that most of the appellants complaints related to substandard
    workmanship completed before the respondents purchased the property.

[2]

The plaintiffs, who declined to have a pre-purchase building inspection,
    alleged at trial that the respondents were liable for the cost of the repairs because
    they concealed latent defects or were wilfully blind with regard to the
    defects.

[3]

The trial judge dismissed the claim by applying the decision of this
    court in
McGrath v. McLean
(1979), 22 O.R. (2d) 784, which held that to
    be successful in such a claim, a purchaser must establish that the vendor knew
    of the latent defects, concealed the latent defects or made representations
    with reckless disregard for the truth.

[4]

The respondent husband was a handyman who had no formal training. He was
    not fully aware of building codes or standards and did not consult with
    professionals when undertaking the repairs. The trial judge found that the respondents
    did not know that any of the workmanship was defective when they covered it
    with dry-wall in the normal course of completing the improvements. The trial
    judge found that the respondents lived in the house for several years after the
    renovations with no problem. The trial judge further found that the respondent
    husband was a prudent and careful person who would not have knowingly exposed
    his family to risk.

[5]

In our view, the trial judges finding that the respondents were simply
    unaware that the workmanship was defective is fatal to the argument that they
    concealed the defects in order to sell the property or that they were wilfully
    blind with regard to the defects.

[6]

We do not accept the submission that the trial judge erred in failing to
    find that the actions of the respondents amounted to concealment as that term
    is used in
McGrath v. McLean
. In our view, concealment in this context
    connotes an act done with an intention to hide from view some defect of which
    the vendor is either aware or wilfully blind. The trial judge did not err in
    holding that active concealment was required as that formulation of the test
    is well established: see
Gumbmann v. Cornwall
(1986), 44 R.P.R. 114
    (Ont. H.C.J.) at para. 63;
Guglielmi v. Russo,
2010 ONSC 833, 92 R.P.R.
    (4
th
) 117 (Ont. Div. Ct); J. Victor Di Castri,
The Law of Vendor
    and Purchaser,
3
rd
ed.,

looseleaf

(Toronto:
    Carswell, 1988), vol. 1 at para. 239.

[7]

On the facts as found by the trial judge, the respondents merely
    completed their renovations in the ordinary course without any knowledge or
    wilful blindness as to any defects in the work. The appellants were aware of
    the fact that the respondents had done extensive renovations on their own
    without a permit and without inspection. If the appellants wanted a guarantee
    that the work had been done to their desired standard, they were obliged to
    bargain for an express warranty to that effect to replace the presumptive rule
    of
caveat emptor
.

[8]

The appeal is dismissed with costs to the respondents fixed at
    $13,318.09 inclusive of disbursements and applicable taxes.

Robert J. Sharpe J.A.

R.P. Armstrong J.A.

S. Lang J.A.


CITATION:
Elster (Re), 2011 ONCA 701

DATE: 20111110

DOCKET:  C53326

COURT OF APPEAL FOR ONTARIO

Doherty, Goudge and Epstein JJ.A.

BETWEEN

Her Majesty
          the Queen and Centre for Addiction and Mental Health

Respondents

and

Lior
          Elster

Appellant

Lior Elster, appearing in person

Anita Szigeti, as
amicus curiae

Matthew Asma, for the respondent, Attorney General of Ontario

Jean Buie, for Centre for Addiction and Mental Health

Heard:
October 27 and 31, 2011

On appeal from the disposition of the Ontario Review Board
          (ORB) dated February 22, 2011.

ENDORSEMENT

[1]

We conclude that the Board did not act unreasonably in imposing a
    detention order.  We are, however, satisfied that para. 2(g) of that order
    cannot stand.  That paragraph allows Mr. Elster to live in the community, but
    requires that he do so in supervised accommodation approved by the person in
    charge.

[2]

There were no submissions made to the Board as to the meaning of, or
    need for supervised accommodation in the circumstances of this case.  The
    first reference to supervised accommodation appeared in the Boards reasons
    delivered in May 2011.

[3]

On appeal, counsel advised the court that the phrase supervised
    accommodation has no single meaning in the context of Board orders.  The meaning
    varies from institution to institution and from time to time at the same
    institution.  Supervised accommodation can vary from 24-hour a day supervision
    in an approved location to supervision for a number of hours a day at a group
    home.  Whatever the meaning of the phrase, there are significant resource
    limitations that restrict the availability of supervised accommodation.

[4]

The Board should not have imposed the term in subparagraph (g) without
    allowing the parties an opportunity to make submissions as to the need for,
    meaning of, and availability of supervised accommodation in Mr. Elsters
    particular circumstances.  In effect, the Board imposed a further limitation of
    Mr. Elsters liberty without any submissions as to the need for that limitation
    and without a clear understanding of the effect of that limitation on Mr.
    Elster.

[5]

The ORB was concerned about Mr. Elsters unexplained relapse less than a
    year earlier.  That relapse and the nature of the index offence justified the
    detention order.  The Board was also concerned that Mr. Elster should not live
    with his father at the present time.  That concern was also justified on the
    evidence and could have been addressed by a specific term in the order
    directing that Mr. Elster not be allowed to reside with his father.

[6]

We were advised in oral argument by counsel for the Centre for Addiction
    and Mental Health (CAMH) that it interprets the order requiring supervised
    accommodation as referring to accommodation in which Mr. Elster resides in a
    place where he receives a minimum of four hours a day direct supervision.
    According to counsel for CAMH, that kind of facility would in all likelihood
    not be available for Mr. Elster before his next review in February 2012.

[7]

Counsel for CAMH takes the position that there was no evidence to
    justify limiting the potential approved accommodation to supervised
    accommodation as that phrase is used by CAMH.  Ms. Szigeti joins in that
    submission.  The Crown argues that there was some evidence to support the
    Boards order.

[8]

The Boards failure to entertain submissions from the parties before
    imposing a supervised accommodation limitation on Mr. Elsters liberty,
    combined with the uncertainty as to the meaning of that phrase, compels the
    conclusion that the Board erred in law in unilaterally imposing that term.  We
    also agree with the submission that if the term supervised accommodation is
    given the least intrusive meaning used by CAMH, that is four hours a day of
    direct supervision, there was no evidence to justify that limitation on Mr.
    Elsters liberty.

[9]

We would allow the appeal and vary the order to provide that Mr. Elster
    could not be permitted to live in the community with his father, but could
    otherwise be permitted to live in the community in accommodation to be approved
    by the person in charge of CAMH.

Doherty J.A.

S.T. Goudge J.A.

G.J.
    Epstein J.A.


CITATION:
GRW Industries (1985) Limited v. Royal Bank of
          Canada, 2011 ONCA 729

DATE: 20111121

DOCKET: C52411

COURT OF APPEAL FOR ONTARIO

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

BETWEEN

GRW Industries (1985) Limited (In Bankruptcy) and The Secured; Preferred and Unsecured Creditors

Plaintiff/Appellants

and

The Royal Bank of Canada

Defendant/Respondent

Grant Wilson, in person

Brett Harrison, for the respondent

Heard and released orally:
November 18, 2011

On appeal from the judgment of
          Justice J.N. Morissette of the Superior Court of Justice, dated June 8, 2010.

ENDORSEMENT

[1]

The original trial of this matter took place in 2007.  On that occasion,
    the trial judge dismissed the action with reasons that commenced with these
    observations:

This case should not have been allowed to proceed
    to trial.  It is absolutely groundless and without foundation.

[2]

In dismissing the action, the trial judge found that Royal Bank of
    Canada (RBC) acted completely properly in petitioning GRW into bankruptcy.
    This court subsequently dismissed the appeal of the 2007 decision.
    Furthermore, the Supreme Court of Canada denied the appellants leave to
    appeal.  It also appears that this court has since dismissed five other
    attempts at further appeals.

[3]

This is the latest appeal, which is from the recent dismissal of the
    appellants motion seeking to re-litigate the matter based on the cause of
    action of fraudulent misrepresentation.  The appellants claim that they are not
    attempting to re-litigate the 2007 action; rather, they are attempting to bring
    new evidence, merits and law, which they say both the original trial court
    and recent motion court refused to accept.

[4]

In her brief reasons for decision, the motion judge first observed that
    Mr. Wilson is, yet again, attempting to re-litigate matters that have been
    dealt with by this court, the Court of Appeal and the Supreme Court of
    Canada.  She then noted that GRWs primary claims at the trial of the original
    action were that the RBC improperly demanded loans, improperly petitioned GRW
    into bankruptcy, and improvidently sold GRW assets.  The motion judge went on
    to find that those claims were not different from negligent misrepresentation
    and that the cause of action was
res judicata
.

[5]

The motion judge was correct in both her reasons and result and there is
    no reason for this court to interfere with her decision.  Accordingly, the
    appeal is dismissed.  No costs are ordered.

J.C. MacPherson J.A.

H.S. LaForme
    J.A.

Hackland J. (
ad
    hoc
)


CITATION:
Guy v. Toronto (City), 2011 ONCA 689

DATE: 20111107

DOCKET: C53219

COURT OF APPEAL FOR ONTARIO

Laskin, Armstrong and Blair JJ.A.

BETWEEN

Veir Guy

Plaintiff/Respondent

and

City of Toronto

Defendant/ Appellant

Peter C. Williams and Gaynor J. Roger, for the appellant

Barry A. Percival, Q.C. and Allan Preyra, for the respondent

Heard and released orally:
October 21, 2011

On appeal from the judgment of the Divisional Court (Justice
          J.R.R. Jennings, Justice T.P. Herman and Justice A.L. Harvison-Young) dated September
          22, 2010.

ENDORSEMENT

[1]

The City seeks to set aside the judgment of Stong J. dated
    September 22, 2010, awarding the plaintiff damages for injuries sustained when
    she slipped and fell on an icy patch in a laneway near the subway stop at
    Danforth and Greenwood in the City of Toronto.

[2]

We would dismiss the appeal.

[3]

Section 284 (1) of the
Municipal Act
requires that the
    municipality must "keep [a highway] in a state of repair that is
    reasonable in light of all the circumstances including the character and
    location of the highway."  We do not accept Mr. Williams able submission
    that the trial judge judicially declared the laneway to be a sidewalk.  Instead,
    he found that the laneway  designated as a commercial roadway  was used both
    as a vehiclar roadway and a pedestrian passageway and the city knew that many
    pedestrians were using it on a regular basis in that fashion.  It was open for
    him to take this approach on the record.  The trial judge therefore declined to
    apply the seven-day notice requirement that applies to sidewalks, but when it
    came to determining the standard of care, decided to apply the higher standard
    of gross negligence that applies in sidewalk cases.  This favoured the city and
    we see no error in these circumstances in his doing so.

[4]

The trial judge found on the evidence that the city was grossly
    negligent.  We need not decide whether the standard of gross negligence was
    called for here.  As noted, it favoured the city, and in the particular
    circumstances of this case, we see no basis for interfering with his
    conclusion.

[5]

The Divisional Court affirmed the trial judge's decision.  Again,
    we see no error.

[6]

The appeal is therefore dismissed.  Costs inclusive of the motion
    for leave to appeal, are fixed in the amount of $25,000 all inclusive.

John Laskin J.A.

R.P. Armstrong J.A.

R.A. Blair J.A.


CITATION:
Halton Standard Condominium Corporation No.
          386 v. Palomino Hill Realty Corporation, 2011 ONCA 723

DATE: 20111118

DOCKET: C53595

COURT OF APPEAL FOR ONTARIO

Laskin, Rosenberg and Sharpe JJ.A.

BETWEEN

Halton Standard Condominium Corporation No. 386

Applicant (Respondent)

and

Palomino Hill Realty Corporation and Menkes Corporation

Respondents (Appellants)

Jeffrey W. Kramer, for the appellants

Michael John Campbell, for the respondent

Heard: November 17, 2011

On appeal from the judgment of Justice Gisele M. Miller of the
          Superior Court of Justice, dated April 13, 2011.

APPEAL BOOK ENDORSEMENT

[1]

The appellants main submission is that the minutes of settlement foreclosed
    the complaints that were before Tarion.  We do not read the minutes of
    settlement that way.  We agree with the reasons and conclusion of Miller J.

[2]

Accordingly, the appeal is dismissed with costs of $7,000, inclusive of
    disbursements and applicable taxes.


CITATION:
Harrison v. Kvartyrmeister, 2011
      ONCA 746

DATE:  20111125

DOCKET: C53490

COURT OF APPEAL FOR ONTARIO

Doherty, Rosenberg and Juriansz JJ.A.

BETWEEN

Graham Kenneth Harrison

Applicant (Respondent on Appeal)

and

Yurii Kvartyrmeister also known as Yuri
          Kvartyrmeister, Olga Smrek
and Harvey Kalles Real Estate Ltd.

Respondents (Appellants on Appeal)

Y. Gavris, appearing as agent for the respondents (appellants
          on appeal)

James F. Diamond, for the applicant (respondent on appeal)

Heard:  November 24, 2011

On appeal from the judgment of Justice Pollak of the Superior
          Court of Justice on dated March 8, 2011.

APPEAL BOOK ENDORSEMENT

[1]

We will not allow Mr. Gavris to make representations for the appellants
    for the following reasons:

1)

a
      panel of this court has already held that he cannot do so (see endorsement of
      Blair J.A.,
supra
), and we see no reason to revisit that decision; and

2)

he
      was a witness in the proceeding.

[2]

In our view, the merits of this matter should be addressed without any
    further delay.  We have considered the arguments advanced on behalf of the
    appellants in the factum of their former counsel and we have reviewed the
    reasons of the application judge.  We see no merit to the appeal.

[3]

The appeal is dismissed.  Costs to the respondent in the amount of
    $8,000, inclusive of disbursements and HST.


CITATION:
Haye (Re), 2011 ONCA 700

DATE: 20111110

DOCKET: C53476

COURT OF APPEAL FOR ONTARIO

Laskin, Cronk and Blair JJ.A.

IN THE MATTER OF: Naureen G. Haye

Ewa Krajewska, for the appellant, the Person in Charge of
          Ontario Shores Centre for Mental Health Sciences

Naureen G. Haye, acting in person

Anita Szigeti, as
amicus curiae

Robert Gattrell, for the Attorney General

Heard: November 4, 2011

On appeal against the disposition of the Ontario Review Board,
          dated March 31, 2011.

By the Court:

[1]

The Hospital appeals a disposition of the Ontario Review Board dated
    March 31, 2011, granting Naureen Haye an absolute discharge.  In considering
    this appeal, we have had the benefit of written and oral submissions by counsel
    and by Ms. Haye.

[2]

Ms. Haye was found not criminally responsible for wilful mischief
    endangering life after she lit a fire in the driveway she shared with a family
    with young children, and then used her gas-fired oven to incinerate clothes,
    garbage, incense and food while her son was in the house.  She was admitted to
    the Ontario Shores Centre for Mental Health Sciences in February of this year.
    This was her first Review Board disposition.

[3]

Under s. 672.54 of the
Criminal Code
, a Review Board may grant an
    absolute discharge where it is of the opinion that the accused is not a
    significant threat to the safety of the public.  In the present case, the
    Review Board was satisfied that Ms. Haye suffers from a mental disorder, but
    was not satisfied to the degree required that she is a significant risk to the
    safety of the public.  The principal issue on this appeal is whether the
    Review Board erred in its opinion that Ms. Haye is not a significant threat to
    public safety.

[4]

We recognize the expertise of the Review Board and we acknowledge that its
    opinions are entitled to deference from an appellate court.  However, in the
    present case, the Review Boards reasons raise two concerns, which together
    warrant our intervention.

[5]

The first concern is that the Review Board seems to have misapprehended
    the evidence of Dr. Rootenberg, the psychiatrist who assessed Ms. Haye.  Dr.
    Rootenberg was the only expert to testify before the Review Board and, in
    discharging Ms. Haye absolutely, the Review Board relied on his opinion.  After
    noting that since entering the hospital Ms. Haye had done nothing to indicate
    she is likely to cause physical or psychological harm to anyone including
    herself, the Board said:

When Dr. Rootenberg was questioned by Mr. Balka [a
    Board member] as to his opinion, he acknowledged that at best such a risk was
    speculative.  We appreciate his frankness.  We agree and think that the
    evidence falls short of establishing the accused is a significant risk to the
    safety of the public.

[6]

We have reviewed the entire transcript of Dr. Rootenbergs testimony,
    including the part where he was questioned by Board members.  At no time did he
    say or leave the impression that the risk of harm posed by Ms. Haye was
    speculative.  On the contrary, Dr. Rootenberg said very clearly in his
    evidence that, if released, Ms. Haye was likely to act on her delusional
    beliefs and paranoid thoughts.  For example, in response to a question from
    counsel for the Hospital, he said yes, I do think if she wasnt in a
    structured supervised setting, she may well act on those views.  And when
    counsel for the Attorney General asked: Now in terms of significant risk, I
    take it the concern is that she is going to continue to act out on her
    delusional thinking, the way that she did at the time of the index offence?,
    Dr. Rootenberg replied, Certainly.

[7]

Our second concern is that in its analysis of significant risk, the
    Review Board did not refer either to the evidence of Ms. Hayes sister or to
    the written report of the Hospital treatment team.  Both the sisters testimony
    and the Hospital report strongly support a finding that, if released, Ms. Haye
    would be a significant threat to the safety of the public.  As the Board did
    not refer to this evidence, we cannot be satisfied that it took it into account
    in discharging Ms. Haye absolutely.

[8]

For these brief reasons we set aside the Review Boards disposition and
    remit the matter back to it for a new hearing.  That hearing should be
    scheduled expeditiously, even as early as this month should a date be
    available.

RELEASED:  November 10, 2011                                     John
    Laskin J.A.

EAC                                                                                E.A.
    Cronk J.A.

R.A.
    Blair J.A.


CITATION:
Holly Park Meat Packers Inc. (Re), 2011 ONCA 750

DATE: 20111129

DOCKET: C54552

COURT OF APPEAL FOR ONTARIO

Goudge, LaForme and Rouleau JJ.A.

In the Matter of the Proposal of Holly Park Meat
          Packers Inc. of the City of Barrie, in the Province of Ontario

Kevin D. Sherkin and Carmine Scalzi, for the appellants,
          Paradise Farm Caledone Inc. and Baghai Development Limited

Bobby H. Sachdeva and Greg Azeff, for the respondent, Holly
          Park Meat Packers Inc.

Colby Linthwaite, for the respondent, Soreq Inc.

Steven L. Graff, for the respondent, Zeifman Partners Inc.

Heard:
November 28, 2011

On appeal from the order of Justice
          Ruth E. Mesbur of the Superior Court of Justice, dated November 1, 2011.

APPEAL BOOK ENDORSEMENT

[1]

We see no error in the order made by the motion judge granting the
    appellant an adjournment on terms of a limited draw against DIP financing.  It
    was the appellant that sought the indulgence and the terms imposed were an
    entirely reasonable exercise of the motion judges discretion.  Indeed, the DIP
    financing has since been approved by the court on November 16, 2011.

[2]

The appeal is dismissed.  Costs, including costs of the motion before
    Doherty J.A., to the respondent, Holly Park Meat Packers Inc., fixed at
    $20,000, inclusive of disbursements and all applicable taxes.


CITATION:
Jack v. Gowling, Strathy &
          Henderson, 2011 ONCA 736

DATE: 20111125

DOCKET: C53461

COURT OF APPEAL FOR ONTARIO

Feldman, Sharpe and Epstein JJ.A.

BETWEEN

Heather Jack

Plaintiff (Appellant)

and

Gowling,
          Strathy & Henderson, Harry Dahme, Rhonda Jansen,
Gluckstein,

Neinstein, Michael Huclack, Neinstein &
          Associates, Zak A. Muscovitch

Defendants (Respondents)

Allan Rouben, for the appellant

Brian A. Pickard, for the respondent
          Zak. A. Muscovitch

Robin Squires, for the respondent
          Michael Huclack

Heard:
November 21, 2011

On appeal from the order of Justice P.D. Lauwers of the
          Superior Court of Justice dated March 4, 2011.

ENDORSEMENT

[1]

The motion judge dismissed the appellants action on the ground that she
    had failed to comply with undertakings given on discovery despite two court
    orders that she do so.

[2]

The motion judge declined to dismiss the action on non-compliance alone
    and held that the action could only be dismissed if the respondents were able
    to demonstrate that non-compliance had given rise to potential or actual prejudice.
    The motion judge reviewed the various undertakings that had not been complied
    with and concluded that the crucial issue could be narrowed to this: were the
    respondents prejudiced or exposed to the risk of prejudice by the appellants
    failure to comply with an undertaking to provide copies of reports and test
    results from Dr. Zazula, an allergist?

[3]

The appellant had seen Dr. Zazula twice: once in April and once in May,
    1993. A letter from Dr. Zazula, dated August 25, 1993, written to the
    appellants general practitioner, indicated that the appellant had agreed to a plan
    involving investigation and treatment. In response to the appellants May 29,
    2008 request for further records (the lawyer had previously made the same
    request in May and October 2007), Dr. Zazula indicated that his records were no
    longer available.

[4]

The motion judge noted in his reasons that the respondents counsel
    indicated in oral argument that we do know that [Dr. Zazulas records] were
    destroyed in 2007. The motion judge concluded that prejudice to the
    respondents was made out on the basis that Dr. Zazulas records had been
    destroyed after the discovery in 2006 and before the appellant requested their
    production.

[5]

Unfortunately, there is no evidence to support the assertion that Dr. Zazulas
    records were destroyed in that time period. The basis for counsels assertion
    appears to have been regulations that required Dr. Zazula to retain his
    records. The appellant asserts that period to be 10 years while the respondents
    say it is 12 years. Even if the respondents are correct, Dr. Zazula would have
    been free to destroy his records in 2005, before the examination for discovery.

[6]

Moreover, it is not at all clear to us from this record that Dr. Zazula actually
    did any tests, further investigation or treatment.

[7]

Accordingly, there was no basis on the evidence for the motion judge to
    have concluded that the respondents did suffer actual or potential prejudice
    from the appellants failure to comply with her obligations to comply with the
    undertakings given on discovery pertaining to the production of materials
    relating to her consultation with Dr. Zazula or with the order. As this finding
    was crucial to his disposition of the motion the error is fatal to the order
    dismissing the action.

[8]

The appeal is allowed and the order dismissing the action is set aside.
    The appellant is entitled to costs of the appeal fixed at $25,000 inclusive of disbursements
    and H.S.T.

K. Feldman J.A.

Robert J. Sharpe J.A.

G.J.
    Epstein J.A.