COURT OF APPEAL FOR ONTARIO

CITATION: Scaduto v. The Law Society of Upper Canada, 2015
    ONCA 733

DATE: 20151102

DOCKET: C60487

Blair, Hourigan and Brown JJ.A.

BETWEEN

Giuliano Scaduto

Applicant (Appellant)

and

Law Society of Upper Canada and Attorney General
    of Ontario

Respondents (Respondents)

Giuliano Scaduto, acting in person

Antonios T. Antoniou and
    Frank Caruso, for the respondent Law Society of Upper Canada

Jeremy Glick and Heather
    Burnett, for the respondent Attorney General for Ontario

Heard: October 28, 2015

On appeal from the order of Justice Fred L. Myers of the Superior
    Court of Justice, dated May 5, 2015.

ENDORSEMENT

[1]

Giuliano Scaduto appeals the order of Justice Myers dismissing his
    application against the Law Society of Upper Canada and the Attorney General of
    Ontario as being frivolous and vexatious pursuant to r. 2.1.01(1) of the
Rules
    of Civil Procedure
.

[2]

Mr. Scaduto was an employee at a Swiss Chalet restaurant between 1993
    and 2004. He brought a claim before the Workplace Safety and Insurance Board
    (the WSIB) for work-related injuries. He was unsuccessful in this claim all
    the way up to the Supreme Court of Canada, which denied his application for
    leave to appeal in 2013.

[3]

In 2015, Mr. Scaduto commenced an application against the Attorney
    General and the Law Society. He sought damages based on the Law Societys
    alleged failure to fulfil its statutory duties insofar as it did not
    investigate his complaints about various lawyers, including the Registrar of
    the Supreme Court of Canada, who had refused Mr. Scadutos request for
    reconsideration of the Courts dismissal of his leave to appeal application. He
    also sought an order compelling the Law Society to bar a convicted criminal
    from lecturing before the Ontario Bar.

[4]

The Attorney General requested that the motion judge dismiss the
    application as being frivolous or vexatious under r. 2.1.01(6). The motion
    judge requested written submissions from Mr. Scaduto on this issue.

[5]

After reviewing Mr. Scadutos submissions, the motion judge dismissed
    his application as being frivolous and vexatious on its face. He found that a
    lawyers mistake concerning a time limit for seeking leave to appeal was not an
    ethics issue for the Law Society complaints process, nor was the Law Societys handling
    of a complaint a matter for an originating motion in the Superior Court. He
    also stated that Mr. Scaduto had conceded that the relief he sought with
    respect to a certain convicted criminal was irrelevant to the gravamen of his
    complaints. The motion judge found that Mr. Scadutos complaints were an
    attempt to re-litigate the issues at play in his failed WSIB claim.

[6]

Mr. Scaduto submits that the motion judge erred in law by not reviewing
    the large volume of evidence filed in his amended application record before striking
    his application.

[7]

Rule 2.1 is a relatively new rule that came into force on July 1, 2014.
    The motion judge has decided a number of cases which have helped to delineate both
    the procedure and the test to be applied under the rule: see
Gao v. Ontario
    (Workplace Safety and Insurance Board)
, 2014 ONSC 6100, 37 C.L.R. (4th) 1
    (
Gao No. 1
);
Gao v. Ontario (Workplace Safety and Insurance
    Board)
, 2014 ONSC 6497, 37 C.L.R. (4th) 7 (
Gao No. 2
);
Raji
    v. Border Ladner Gervais LLP
, 2015 ONSC 801 (CanLII); and,
Covenoho v.
    Ceridian Canada
, 2015 ONSC 2468 (CanLII).

[8]

Under this line of authority, the court has recognized that the rule
    should be interpreted and applied robustly so that a motion judge can
    effectively exercise his or her gatekeeping function to weed out litigation
    that is clearly frivolous, vexatious, or an abuse of process. However, the use
    of the rule should be limited to the clearest of cases where the abusive nature
    of the proceeding is apparent on the face of the pleading and there is a basis
    in the pleadings to support the resort to the attenuated process.

[9]

We fully endorse that case law and the guidance that has been provided
    by the motion judge in the interpretation and operation of r. 2.1. This
    approach is summarized in
Raji
, at paras. 8-9, as follows:

[R]ule 2.1 is not for close calls.  Its availability is
    predicated on the abusive nature of the proceeding being apparent on the face
    of the pleadings themselves.  No evidence is submitted on the motion. [T]here
    are two conditions generally required for rule 2.1 to be applied.  First, the
    frivolous, vexatious, or abusive nature of the proceeding should be apparent on
    the face of the pleading as required by the rule.  Second, there should
    generally be a basis in the pleadings to support the resort to the attenuated
    process of rule 2.1.  This second requirement is not in the rule and is not a
    fixed requirement.  It strikes me as a guideline that reminds the court that
    there are other rules available for the same subject matter and that resort to
    the attenuated process in rule 2.1 should be justified in each case.

See also
Gao (No. 2)
, at paras. 11-18; and
Covenoho
,
    at paras. 6-7. We also recognize that the case law will develop as the rule becomes
    more widely utilized.

[10]

We
    turn now to the specific error alleged by the appellant. He says that the
    motion judge erred in law by failing to have regard to the evidence he filed in
    his supplementary application record. We disagree.

[11]

The
    focus under r. 2.1 is on the pleadings and any submissions of the parties made
    pursuant to the rule. The role of the motion judge is to determine whether on
    its face, and in light of any submissions, the proceeding is frivolous,
    vexatious, or an abuse of process. Rule 2.1.01(3) makes this clear when it
    states that an order shall be made on the basis of written submissions, if
    any, filed in accordance with the procedure outlined therein.

[12]

Rule
    2.1 is designed to permit the court to dismiss frivolous or vexatious proceedings
    in a summary manner. Resort to evidence defeats the purpose of the rule and
    leads to the danger that the r. 2.1 process will itself become a vehicle for a
    party who might be inclined to inflict the harms of frivolous proceedings on
    the opposing parties and the civil justice system:
Gao No. 1
,

at
    para. 8.

[13]

The
    application judge did not err in restricting his analysis to a review of the notice
    of application and Mr. Scadutos written submissions. Based on this material, he
    was able to conclude that the pleading was, on its face, frivolous and
    vexatious, and incapable of success. In our view, the application judge did not
    err in law or fact in the approach he took or in the conclusion he reached.

[14]

The
    appeal is dismissed. The respondents, as the successful parties on the appeal,
    are entitled to their costs on a partial indemnity basis. On that scale, the
    Law Society sought costs of $5,400 and the Attorney General sought costs of
    $2,750. In all of the circumstances, including that r.  2.1 is a
    relatively new rule and the case law has not completely developed, we believe
    that a lower amount is justified and order that the appellant pay the Law
    Society costs of the appeal fixed at $2,000 and pay the Attorney General costs
    of the appeal fixed at $1,500. Both sums are inclusive of all fees,
    disbursements, and applicable taxes.

R.
    A. Blair J.A.

C.W.
    Hourigan J.A.

David
    Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Schwilgin v.
    Szivy, 2015 ONCA 816

DATE: 20151124

DOCKET: M45679

Brown J.A. (In Chambers)

BETWEEN

Laszlo Schwilgin

Moving Party

and

Lori Anne Szivy

Responding Party

Laszlo Schwilgin, acting in person

Fredrick Schumann, appearing as duty counsel

No one appearing for the responding party

Heard: November 19, 2015

ENDORSEMENT

OVERVIEW

[1]

Laszlo Schwilgin moves for an extension of the
    time in which to file a notice of appeal from the May 20, 2014 order of
    Backhouse J. The lengthy history of this matrimonial litigation is set out in
    the May 20, 2010 reasons of Métivier J. (2010 ONSC 2857), the reasons of
    Backhouse J., and the July 2, 2015 reasons of the Divisional Court (2015 ONSC
    4292).

[2]

At the motion to extend the time to appeal, Mr.
    Schwilgin appeared in person and was assisted by duty counsel.  Ms. Szivy
    served and filed responding materials, but advised the court she could not
    afford to travel down from Ottawa for the motion.  She asked the court to
    consider her written materials.  I have done so.

[3]

Mr. Schwilgin and Ms. Szivy separated in 2002.
    They have two children: Alexander, who is now 18 years old and suffers from
    autism, and Jennifer, who is 17 years old.  Prior to July 2013, the children
    lived with their mother in Ottawa.  Since then, they have resided with their
    father, most recently in Toronto.

[4]

After the children began to live with him, Mr.
    Schwilgin brought a motion to vary the child support obligations then in
    force.  That motion resulted in the May 20, 2014 order of the motion judge.
    Mr. Schwilgin contends the motion judge made several errors in dismissing most
    of his motion to vary: she failed to relieve him of $75,000 in accumulated
    child support arrears that date back to at least 2006; she erred in the level
    of child support she ordered Ms. Szivy to pay on a go-forward basis; and she
    erred in holding that the child support payments to be made by Ms. Szivy be
    treated as an offset against the arrears owed by Mr. Schwilgin.

[5]

For the reasons set out below, I dismiss Mr.
    Schwilgins motion for an extension of time to file a notice of appeal.

ANALYSIS

[6]

The factors a court must take into account in
    considering a motion to extend the time to file a notice of appeal are set out
    in
Kefeli v. Centennial College of Applied Arts and Technology
(2002), 23 C.P.C. (5
th
) 35 (Ont. C.A.).

Intention to Appeal and Explanation for Delay

[7]

Although I am satisfied that Mr. Schwilgin formed
    an intention to appeal within the relevant time, I do not accept as reasonable
    his explanation for the delay in seeking to appeal to this court.

[8]

Mr. Schwilgin stated that he had filed a notice
    of appeal from the order of the motion judge within 30 days of the date of the
    order.  However, he filed the appeal with the Divisional Court.  That court
    quashed his appeal in July 2015 on the ground that it lacked jurisdiction
    because his claim to rescind arrears that was dismissed by the motion judge
    exceeded $50,000.

[9]

Mr. Schwilgin deposed that he appealed to the
    Divisional Court as a result of a mistake he made as a lay person.  In
    assessing that assertion, I must take into account two other factors.  First,
    in her 2010 reasons Métivier J. described Mr. Schwilgin as a talented and
    experienced computer engineer.  He is a person of some sophistication.
    Second, I asked Mr. Schwilgin whether opposing counsel had told him his appeal
    to the Divisional Court was made to the wrong court.  Mr. Schwilgin confirmed
    that he had been put on notice he was appealing to the wrong court.  He
    persisted nonetheless.  The Divisional Court addressed his conduct in para. 6
    of its July 2015 reasons when it stated:

In this case the issue of jurisdiction was
    raised by the respondent in August 2014.  The appellant did not move
    expeditiously to bring his appeal in the proper forum.  In this regard we do
    not accept that the respondents failure to consent to the transferring of this
    appeal is a satisfactory explanation for the appellants failure to move with
    expedition to ensure that this appeal was brought in the proper forum.

[10]

The Divisional Court declined to exercise its
    discretion to transfer Mr. Schwilgins appeal to this court.  Mr. Schwilgin
    thereupon applied to this court for an extension of time to seek leave to
    appeal from the Divisional Courts order.  On August 21, 2015, Juriansz J.A.
    dismissed that motion, stating: It is apparent to me that the proposed leave
    application is devoid of merit.

[11]

Given that procedural history, I am not
    satisfied that Mr. Schwilgin has provided an adequate explanation for his
    lengthy delay in seeking to appeal to this court.  This weighs very heavily
    against granting his motion for an extension of time to appeal.

Merits of the Appeal

[12]

I am not persuaded on the evidence before me
    that there is merit in Mr. Schwilgins appeal.  He did not file a draft notice
    of appeal with his motion, so there is no concise identification of the errors
    he contends the motion judge made.  However, from his materials and submissions
    made at the motion, it is apparent that the primary argument Mr. Schwilgin
    wants to advance on an appeal is that the motion judge erred in not
    re-considering his financial ability to pay child support going back to 2006,
    when Mr. Schwilgin consented to the imputation of a certain income level to
    him. Had she done so, according to Mr. Schwilgin, his child support arrears
    would have been eliminated.

[13]

In support of his position, Mr. Schwilgin relies
    heavily on the decision of this court in
Difrancesco v. Couto
(2001), 56 O.R. (3d) 363 (C.A.),
which identified the factors
    to be taken into account in any decision to rescind child support arrears.  In
    that case, this court stated, at para. 26, that the dismissal of an application
    to rescind arrears is not an absolute bar to a future rescission of those same
    arrears provided there is a change in circumstances sufficient to warrant a
    variation in child support obligations.

[14]

In my view, Mr. Schwilgins proposed argument that
    the motion judge erred in refusing to rescind his child support arrears faces two
    very significant difficulties. First, in 2008 Mr. Schwilgin moved to vary the
    2006 consent child support order to reduce his child support obligations from
    $1,215 to $400 and to rescind all child support arrears.  The court dismissed
    his motion.  He brought a second variation motion in 2010 for similar relief,
    although that time for the elimination of any child support obligation, as well
    as the rescission of all arrears.  Métivier J. dismissed that motion, noting
    that Mr. Schwilgin had stopped paying the support to which he had consented.

[15]

Métivier J. conducted a lengthy review of Mr.
    Schwilgins employment history and earnings, going back to 2001, the year prior
    to the parties separation.  At para. 16 of her reasons she stated:  Mr.
    Schwilgin has claimed before each judge since 2002 that he is unemployed and
    looking for employment.  As noted, she found that Mr. Schwilgin is a talented
    and experienced computer engineer.  Métivier J. concluded, at para. 34, that
    there had been no material change in Mr. Schwilgins financial circumstances
    since the 2006 consent order, and [h]e is, in my view, determinedly and
    deliberately under-employed for his own purposes.

[16]

Mr. Schwilgin advised that the Divisional Court
    had dismissed his appeal from the order of Métivier J. (
2011 ONSC 5918)
.  In the circumstances of this case, that dismissal of his appeal
    would foreclose, for all practical purposes, any re-examination of Mr.
    Schwilgins financial circumstances prior to 2010.  He acknowledged that if his
    pre-2010 arrears were not changed, any reduction in post-2010 child support
    arrears would not bring his child support arrears down to zero, but would still
    leave him liable for somewhere between $20,000 and $40,000 in arrears.

[17]

A second weakness exists in Mr. Schwilgins
    proposed argument on appeal.  By the time of Mr. Schwilgins 2014 variation
    motion, a material change in circumstances had occurred  since July 2013 Mr.
    Schwilgin had been the custodial parent.  The motion judge varied the parties
    child support obligations in light of that material change in circumstances,
    terminating Mr. Schwilgins child support obligations and imposing support
    obligations on Ms. Szivy.

[18]

In respect of Mr. Schwilgins request to rescind
    his child support arrears, the motion judge informed herself about the
    principles stated by this court in the
Difrancesco
case: at para. 3.  However, she found that there had been no change
    in Mr. Schwilgins financial circumstances or ability to pay child support
    since the 2010 decision of Métivier J. Based on her review of the evidence, the
    motion judge concluded, at para. 7, that Mr. Schwilgin has gone to great
    lengths either to conceal his true income or to be deliberately underemployed
    in order to avoid his support obligations.  Her conclusion echoed that made four
    years earlier by Métivier J.

[19]

Mr. Schwilgin obviously disagrees with that
    conclusion.  But, nothing in the three substantive affidavits he filed on this
    motion  September 28, 2015, October 19, 2015 and the fresh evidence affidavit of
    November 13, 2015  would indicate the motion judge made any palpable and
    overriding error in reaching her conclusion that no material change had
    occurred in Mr. Schwilgins financial circumstances since 2010.

[20]

Consequently, I conclude that there is little,
    if any, merit to Mr. Schwilgins appeal.

Prejudice to the Respondent and Whether the
    Justice of the Case Requires Granting the Motion

[21]

Finally, I am not satisfied that the justice of
    the case supports granting the motion to extend.  In quashing his appeal from
    the order of the motion judge, the Divisional Court ordered Mr. Schwilgin to
    pay Ms. Szivy costs of $10,000.  He has not done so.  In open court, Mr.
    Schwilgin said he would not pay those costs because he contends he lacks the
    resources to pay them.

[22]

In her affidavit on the motion, Ms. Szivy
    deposed that Mr. Schwilgin owes her over $25,000 in costs from their
    matrimonial proceedings.  In her letter of November 16, 2015 transmitting her
    responding materials to the court, Ms. Szivy wrote:

I do not understand how Mr. Schwilgin is
    permitted to constantly bring motions and appeals without paying the costs of
    previous court orders.  It seems all the court does is order more costs, which
    I cannot collect.  He gets stern words and a slap on the wrist (costs), and I
    get a bill from my lawyer.  How is this fair?

[23]

That is a most legitimate question to ask.
    Courts usually talk in terms of prejudice which cannot be compensated for by
    costs.  But, at some point, costs themselves become an inadequate form of compensation
    for prejudice, especially where the party on whom they are imposed refuses to
    pay them.

[24]

In this case, Mr. Schwilgin has not paid the
    costs ordered by the Divisional Court.  This court dismissed his motion for
    leave to appeal that decision.  In para. 7 of its reasons, the Divisional Court
    stated:

The appellant has used this appeal as a means
    of delaying paying the arrears in question and the costs ordered to the
    respondent.  Further, the appellant has a history of using Court proceedings in
    this way.  This has caused the respondent considerable prejudice.

[25]

In my view, to grant Mr. Schwilgins motion
    would cause further prejudice to Ms. Szivy, prejudice which a cost award
    obviously could not compensate because Mr. Schwilgin will not pay it.  The justice
    of the case favours dismissing Mr. Schwilgins motion.

DISPOSITION

[26]

Looking at these factors in their totality and
    considering the overall justice of the case, I dismiss Mr. Schwilgins motion
    to extend the time to appeal.

[27]

Ms. Szivy states she has incurred $1,000 in
    costs to respond to the motion.  I order Mr. Schwilgin to pay Ms. Szivy those
    costs in the amount of $1,000 no later than Friday, December 4, 2015.

[28]

Finally, the day following the hearing of the
    motion, Mr. Schwilgin filed with the court a letter to my attention setting out
    further arguments.  It was improper for Mr. Schwilgin to communicate with the
    court in that fashion.  In any event, I read his letter; it contained nothing of
    relevance. I therefore have not taken its contents into account in disposing of
    his motion.

David Brown
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Starport Landing Inc. v. Laurel Springs Water
    Corp., 2015 ONCA 772

DATE: 20151112

DOCKET: C59223

Hoy A.C.J.O., MacFarland and Lauwers JJ.A.

BETWEEN

Starport Landing Inc.

Plaintiff

and

Laurel Springs Water Corp. and J. Gordon Ross

Defendants

and

NCG Ventures Inc. and
    Nickolas C. Georghiades, also known as Nick Georghiades

Third Parties

Patrick Bakos, for the appellant, Starport Landing Inc.

Steven Gadbois, for the respondent, Laurel Springs Water
    Corp.

Heard:  November 5, 2015

On appeal from the order of Justice M.A. Sanderson of the
    Superior Court of Justice, dated July 21, 2014, with reasons reported at 2014
    ONSC 4359.

ENDORSEMENT

[1]

This appeal arose out of the aborted sale of an industrial property with
    environmental problems. The appellant, Starport Landing Inc., asserted that it
    was not required to complete the purchase of the property and sued for the
    return of the deposit it paid. The respondent vendor, Laurel Springs Water
    Corp., successfully brought a motion for summary judgment dismissing the
    appellants claim.

[2]

We dismissed the appellants appeal of that judgment, for reasons to
    follow. These are our reasons.

Background

[3]

The respondent offered the property for sale through a tendering
    process. The tender package disclosed the environmental issues with the
    property, including an order (the Order) made by the Ontario Ministry of the
    Environment (the MOE) pursuant to the
Environmental Protection Act
,
    R.S.O. 1990, c. E. 19 (the
EPA
). The Order required investigation
    and a remedial work plan with respect to the property. Pursuant to s. 197(1) of
    the
EPA
(reproduced below), the Order also prohibited any person with
    an interest in the Property from dealing with the Property in any way without
    first giving a copy of this Order, including any amendments, to each person
    acquiring an interest in the Property. The MOE registered a Certificate of
    Prohibition on title to the property, disclosing this prohibition. The effect
    of this registration was to deem the prohibition in the Order to be directed to
    each person who subsequently acquired an interest in the property: s. 197(2) of
    the
EPA
.

[4]

Under the tendering process, the vendor entered into an agreement of
    purchase and sale (the Agreement) with NCG Ventures Inc. The Agreement
    included the Ontario Real Estate Association standard form and an attached schedule,
    drafted by the parties. Paragraph 2 of Schedule A to the Agreement provided
    that the Agreement was conditional for a period of 30 days upon the Buyer
    being satisfied, in his sole discretion, with the environmental condition of
    the property. If the buyer did not waive this environmental condition within
    the prescribed period, the Agreement would become null and void.

[5]

The conditional period was extended and was to expire on August 14,
    2006.

[6]

NCG had the right to assign the Agreement to any entity financially
    able to complete the purchase at its sole discretion with notice to the Seller.
    The Agreement provided that, once notice was given, [t]he Seller shall agree
    to consent to such assignment.

[7]

On August 11, 2006, NCG assigned the Agreement to the appellant and
    notified the respondent of the assignment. On August 14, 2006, the appellant
    waived the environmental condition and, on August 30, 2006, paid the deposit
    required by the terms of the Agreement. The appellants evidence was that it knew
    about the Order when it paid the deposit.

[8]

The standard form portion of the Agreement included, in s. 10, a
    condition that title to the property is good and free from all registered
    restrictions, charges, liens, and encumbrances except as otherwise specifically
    provided in this Agreement and that, if the buyer makes a valid objection to
    title which the vendor is unable or unwilling to remove, remedy, or satisfy
    and which  Buyer will not waive, the Agreement comes to an end and the buyer
    is entitled to the return of any monies it paid.

[9]

The appellant asserted that, in waiving the environmental condition, it
    did not waive the title condition and, because the Certificate of Prohibition
    was registered on title, it was not required to complete the acquisition of the
    property. It also claimed that it had not been given a copy of the Order before
    it acquired an interest in the property through the assignment and was
    accordingly entitled to void the Agreement pursuant to s. 197(4) of the
EPA
(reproduced below).

[10]

The
    motion judge concluded that there was no genuine issue requiring a trial. She found
    that the appellant was aware that the MOE was insisting on remediation of the
    property when it acquired an assignment of the Agreement and was clearly aware that
    there were serious unresolved environmental issues with respect to the property
    when it waived the environmental condition. She concluded that, having waived
    the environmental condition, the appellant could not demand that the respondent
    remove the Certificate of Prohibition from title. She also found that the
    appellant deposed no evidence that it had not been given a copy of the Order
    before acquiring an interest in the property.

Issues on Appeal

[11]

The
    appellant argues that the motion judge erred by:

1.

finding that the
    waiver of the environmental condition also constituted a waiver of the
    registration of the Certificate of Prohibition on title; and

2.

finding that
    there was no genuine issue requiring a trial with respect to the appellants
    claim that it had not been given a copy of the Order before it acquired an
    interest in the property through the assignment of the Agreement or, at a
    minimum, erred in doing so without exercising her powers under r. 20.04(2.2) of
    the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194 to obtain oral
    evidence as to whether the appellant received the tender documents or knew
    about the Order.

The Waiver of the Environmental
    Condition was a Waiver of the Title Condition

[12]

We
    agree with the motion judge that, having waived the environmental condition,
    the appellant could not demand that the respondent remove the Certificate of Prohibition
    from title.

[13]

The
    title condition must be construed with regard to the specifically negotiated
    environmental condition and the underlying factual matrix, including that the
    Order  which was made with respect to the very environmental problem at issue
     had been disclosed to NCG. In our view, the motion judge correctly concluded
    that a waiver of the environmental condition effectively constituted a waiver
    of the appellants ability to object to the registration of the Certificate of Prohibition
    on title.

No Evidence that the Appellant was not Given a Copy of the
    Order

[14]

The
    relevant portions of s. 197 of the
EPA
provide as follows:

1)

A person who has
    authority under this Act to make an order or decision affecting real property
    also has authority to make an order requiring any person with an interest in
    the property, before dealing with the property in any way, to give a copy of
    the order or decision affecting the property to every person who will acquire
    an interest in the property as a result of the dealing.

2)

A certificate setting
    out a requirement imposed under subsection (1) may be registered in the proper
    land registry office on the title of the real property to which the requirement
    relates

3)

A requirement imposed
    under subsection (1) that is set out in a certificate registered under
    subsection (2) is, from the time of registration, deemed to be directed to each
    person who subsequently acquires an interest in the real property.

4)

A dealing with real
    property by a person who is subject to a requirement imposed under subsection
    (1) or (3) is voidable at the instance of a person who was not given the copy
    of the order or decision in accordance with the requirement.

[15]

The
    appellant argues that the motion judge erred by requiring the appellant to
    adduce evidence that it had not been given a copy of the Order. It says that
    the respondent was required to prove that the appellant was given a copy of the
    Order before the appellant acquired an interest in the property through the
    assignment of the Agreement. The appellant submits that, had the motion judge
    not made this error, she would have: (1) determined that there was a genuine
    issue requiring a trial with respect to the appellants claim that it had not
    been given a copy of the Order before it acquired an interest in the property
    and was therefore entitled to void the Agreement in accordance with s. 197(4)
    of the
EPA
; or (2) at a minimum, ordered that oral evidence be
    presented pursuant to r. 20.04(2.2) as to whether the appellant had received
    the tender documents or the Order before determining whether there was a
    genuine issue requiring a trial.

[16]

We
    reject this argument.

[17]

The
    respondent was not required to prove that the appellant had not been given a
    copy of the Order. In response to the respondents summary judgment motion seeking
    the dismissal of the appellants claim, the appellant was required to set out,
    in affidavit material or other evidence, specific facts showing that there was a
    genuine issue requiring a trial: r. 20.02(2). The appellant was required to adduce
    evidence that it was not given the Order. It did not do so.

[18]

The
    motion judge wrote, at para. 15 of her reasons:

Significantly no one from [the appellant] deposed either that
    he/she/they did not receive the tender documents from NCG or that no one from
    [the appellant] knew about the [Order] at the time it took the assignment from
    NCG.

[19]

There
    is no basis to interfere with the motion judges finding that there was no
    evidence that NCG did not provide the appellant with a copy of the Order. The
    letter from the appellants counsel to the respondent taking the position that
    s. 197(4) of the
EPA
had not been complied with is not evidence that
    the appellant had not been given the Order.

[20]

We
    agree with the motion judge that, in the absence of evidence from the appellant
    that it was not given a copy of the Order, there was no genuine issue requiring
    a trial with respect to the appellants claim that it could void the Agreement
    pursuant to s. 197(4). The issues of whether the respondent was required to
    provide a copy of the Order to the appellant and whether, if the appellant were
    not given a copy of the Order before it acquired an interest in the property
    through the assignment, it could have voided the Agreement (as opposed to the
    assignment) were not before us and we therefore do not address them.

[21]

Rule
    20.04(2.2) provides that, for the purposes of exercising any of the additional
    powers set out in subrule (2.1) when disposing of a summary judgment motion
    namely, weighing the evidence, evaluating the credibility of a deponent, and
    drawing any reasonable inference from the evidence  a judge may order that
    oral evidence be presented by one or more parties.

[22]

The
    motion judge wrote, at para. 55 of her reasons:

There are no factual issues requiring a trial. I reach this
    conclusion on the present state of the evidence. It is not necessary to
    consider the additional powers of trial judges granted under Rule 20.

[23]

As
    the motion judge did not exercise the additional powers set out in subrule (2.1),
    there was no basis for her to have ordered that oral evidence be presented.

[24]

While
    the motion judge did not need to draw an inference from the record before her
    that the appellant had been given a copy of the Order in order to conclude that
    there was no genuine issue requiring a trial, the record supported such an
    inference. It is undisputed that the respondent gave a copy of the Order to NCG
    before NCG acquired an interest in the property by entering into the Agreement.
    As noted above, the motion judge found that the appellant was aware that the
    MOE was insisting on remediation of the property when NCG assigned the
    Agreement to it and was clearly aware that there were serious unresolved
    environmental issues with respect to the property when it waived the
    environmental condition. She also noted the appellants evidence that it knew
    about the Order when it paid the deposit.

Disposition and Costs

[25]

This
    appeal was dismissed for these reasons. The respondent is entitled to its costs
    of the appeal fixed at $6,500, inclusive of disbursements and HST.

Alexandra Hoy A.C.J.O.

J.
    MacFarland J.A.

P.
    Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Tadayon v. Mohtashami, 2015 ONCA 777

DATE: 20151116

DOCKET: C58382

Gillese, Pepall and Lauwers JJ.A.

BETWEEN

Leila Fatemeh Tadayon

Applicant (Respondent/
Appellant by way of cross-appeal)

and

Ali Mohtashami

Respondent (Appellant/
Respondent by way of cross-appeal)

Stephen Codas and Michael Zalev, for the appellant/respondent
    by way of cross-appeal

Michael Stangarone and Ryan Kniznik, for the respondent/appellant
    by way of cross-appeal

Heard: September 11, 2015

On appeal from the orders of Justice Michael A. Penny of
    the Superior Court of Justice, dated January 23, 2014 and March 14, 2014.

Gillese
    J.A
.:

OVERVIEW

[1]

The appellant, Ali Mohtashami, and the respondent, Leila Tadayon, were
    married in 1984. They separated in 1999 and were divorced in 2004. The parties
    three children were aged 11, 9, and 6 at the time of separation.

[2]

The parties entered into a separation agreement dated October 20, 1999
    (the 1999 Agreement). Among other things, the 1999 Agreement set out how the
    matrimonial home (the Yorkminster Property) was to be dealt with and that the
    appellant would pay the respondent $2,000 per month as combined child and
    spousal support.

[3]

In 2005, the Yorkminster Property was sold and 43 Charnwood Road,
    Toronto (the Charnwood Property) was purchased as a home for the respondent
    and the three children. Title to the Charnwood Property was taken in the
    respondents name alone.

[4]

As a result of the parties changed circumstances, they entered into an
    amending agreement dated March 11, 2005 (the 2005 Amending Agreement). Although
    title to the Charnwood Property was taken in the respondents name alone, the
    2005 Amending Agreement effectively provided that each party had a 50% interest
    in it.

[5]

In 2010, the respondent brought an application in which she sought,
    among other things, to set aside the two agreements, obtain retroactive and
    prospective child and spousal support, and be declared the sole owner of the
    Charnwood Property.  The appellant asserted a claim for a variety of relief,
    including a declaration that the respondent held 50% of the Charnwood Property
    in trust for him.

[6]

At the time that the parties entered into the 2005 Amending Agreement,
    the appellant represented that his income for 2005 was $80,000. However, the
    applications judge found that the appellants 2005 income was actually
    $344,000. The increase in income was largely due to the fact that at the time the
    2005 Amending Agreement was made, in addition to running his own general
    contracting company (Pegah), the appellant was engaged in a home building
    venture from which he earned unreported income.

[7]

The applications judge found that this financial information was highly material
    and had been concealed from the respondent, who had no reason to doubt the
    accuracy of the appellants representation as to his 2005 income. He also found
    that had the respondent known this information, she would not have executed the
    2005 Amending Agreement.

[8]

As discussed more fully below, the applications judge further found that
    the appellants non-disclosure of significant financial income, as well as the
    treatment of the Charnwood Property in the 2005 Amending Agreement, was
    unconscionable.

[9]

The applications judge exercised his discretion under s. 56(4) of the
Family
    Law Act
, R.S.O. 1990, c. F.3 (the
FLA
) and set aside the 2005
    Amending Agreement. Section 56(4) reads as follows:

A court may, on application, set
    aside a domestic contract or a provision in it,

(a) if a party failed to disclose
    to the other significant assets, or significant debts or other liabilities,
    existing when the domestic contract was made;

(b) if a party did not understand
    the nature or consequences of the domestic contract; or

(c) otherwise in accordance with
    the law of contract.

[10]

By
    order dated January 23, 2014 (the First Order), among other things, the
    applications judge:

·

dismissed the respondents request to set aside the 1999
    Agreement;

·

set aside the 2005 Amending Agreement;

·

declared the respondent to be the sole owner of the Charnwood
    Property;

·

dismissed the appellants claim for overpayment of support prior
    to 2010 and the respondents claim for arrears of support prior to 2010;

·

ordered that the appellants child and spousal support
    obligations for 2010, 2011, and 2012 be recalculated on the basis of: (i) his
    findings that the appellants income for support purposes was $986,450 in 2010,
    $384,500 in 2011, and $445,440 in 2012; and (ii) his determination to impute
    annual income of $48,000

to the respondent for all support purposes after
    December 31, 2009;

·

ordered that no child support was payable to the respondent after
    December 31, 2013; and

·

ordered the appellant to pay the respondent spousal support of
    $7,452 per month for the period January 1, 2014, to December 31, 2015.

[11]

The
    applications judge issued reasons dated March 14, 2014, in which he dealt with
    the costs of the application, as well as the calculation of retroactive child
    and spousal support. In these reasons, the applications judge concluded that
    the respondent should pay costs of $35,915, which was one-half of the costs of
    the two experts reports plus the costs of an unsuccessful pre-trial motion which
    the respondent had brought. Apart from this, because of the parties divided
    success on the application, the applications judge found that each party should
    bear his or her own costs of the application.

[12]

By
    further order dated March 14, 2014 (the Second Order), the appellant was
    ordered to pay the respondent a lump sum of $172,133. That figure is the total
    net amount that the appellant owed for child and spousal support to the end of
    2013, less the costs award of $35,915.

[13]

The
    appellant appeals and the respondent cross-appeals.

[14]

For
    the reasons that follow, I would dismiss the appeal and allow the cross-appeal
    on one matter only, namely, the respondents entitlement to pre-judgment
    interest on the retroactive child and spousal support award.

THE ISSUES

[15]

The
    appellant raises three issues on appeal. He submits that the applications judge
    erred in:

1.

setting aside the 2005 Amending Agreement;

2.

finding the respondent to be the sole owner of the Charnwood Property;
    and

3.

the quantum and duration of the prospective spousal support.

[16]

In
    her cross-appeal, the respondent raises four further grounds of appeal. She submits
    that the applications judge erred in:

4.

failing to order retroactive child and spousal support prior to 2010;

5.

failing to award pre-judgment interest on the retroactive child and
    spousal support order;

6.

time-limiting the spousal support order and the quantification of that
    support; and

7.

his disposition of the costs of the application.

THE APPEAL

Issue #1:     Did the applications judge err in setting aside
    the 2005 Amending Agreement?

[17]

The
    appellant makes three arguments in support of his submission that the
    applications judge erred in setting aside the 2005 Amending Agreement. First,
    he says it was an error for the applications judge to find that the appellant
    failed to disclose a significant asset at the time that the 2005 Amending
    Agreement was made. Second, he contends that the applications judge erred in finding
    the 2005 Amending Agreement was unconscionable. Third, he argues that the
    applications judge erred when he exercised his discretion and set aside the
    2005 Amending Agreement because he failed to have regard to the relevant
    factors, as established in the case law.

[18]

I
    see no merit in this submission or in the arguments advanced in support of it.
    Accordingly, in my view, the applications judge did not err in setting aside
    the 2005 Amending Agreement.

The First Argument

[19]

Did
    the applications judge err in finding that the appellant failed to disclose a
    significant asset when the parties entered into the 2005 Amending Agreement? He
    did not.

[20]

There
    is no question that at the time the parties executed the 2005 Amending
    Agreement, the appellant represented that his income for 2005 would be $80,000.
    He knew at that time that his income for 2004 was $147,000, which is substantially
    in excess of $80,000. He also knew that he would be receiving income from Pegah
    in 2005, and income from his home building venture which he did not declare to
    the Canada Revenue Agency. None of this financial information was disclosed to
    the respondent until long after she began these proceedings.

[21]

One
    of the two income valuation experts was jointly retained by the parties. It was
    she who prepared the first report. That expert gave evidence that the
    appellants 2005 income was $344,000.

[22]

The
    appellant retained the second expert to provide different scenarios as to his
    income, depending on alternative factual findings that the applications judge might
    make. The second expert accepted the first experts report as her starting
    point. She then constructed three possible scenarios for the appellants 2005
    income, which were, at least in part, dependent upon how the unreported income
    was divided between the appellant and his father. It is obvious from his reasons
    that the applications judge preferred the evidence of the first expert, as he
    was entitled to do.

[23]

Further,
    as the appellant acknowledges, the right to an income stream is an asset,
    within the meaning of s. 56(4)(a) of the
FLA
and ought to be disclosed:
    see
Horner v. Horner
(2004), 72 O.R. (3d) 561 (C.A.), at para. 77.

[24]

In
    these circumstances, I see no error in the applications judges finding that
    the appellant failed to disclose a significant asset when the parties entered
    into the 2005 Amending Agreement. Nor do I see any error in the applications
    judges findings that the appellant materially misrepresented his income for
    2005, that the material misrepresentation was an inducement for the respondent
    to sign the 2005 Amending Agreement, and that had the respondent known the
    correct financial information, she would not have executed it.

[25]

To
    the extent the appellant argues that the respondent failed to raise the matter
    of non-disclosure of financial information in her pleadings, I would make four
    responses. First, he did not raise this matter below and it ought not to be
    raised for the first time on appeal. Second, the respondent did plead that the
    2005 Amending Agreement should be set aside.  She pled that she sought
    financial disclosure and, at para. 22 of her pleading, she expressly asked that
    the 2005 Amending Agreement be set aside on the basis of inadequate financial
    disclosure.  Given that, and the parties joint retention of an expert in
    income valuation, it could have come as no surprise that the appellants
    financial situation in 2005 was in issue. Third, the appellant had an
    obligation to make proper financial disclosure at the time the 2005 Amending
    Agreement was entered into: see
Horner
, at para. 77. The respondent can
    scarcely be faulted for the appellants failure to fulfill that obligation. Fourth,
    and in any event, the record shows that by the time this matter was before the
    applications judge, the appellant was fully aware of the case he had to meet
    and was given a fair opportunity to meet that case.

The Second Argument

[26]

Did
    the applications judge err in finding the 2005 Amending Agreement to be
    unconscionable? He did not.

[27]

In
    responding to this argument, both the appellants non-disclosure of significant
    income and the treatment of the Charnwood Property in the 2005 Amending Agreement
    must be considered. Why? Because, in my view, the applications judges finding
    of unconscionability was based on both. I reach this conclusion based on the
    applications judges reasons, at paras. 25-27:

[25] In my view, there were good reasons for the [respondent]
    not to agree to the [2005] Amending Agreement. I find that a material
    inducement to her signing the [2005] Amending Agreement was the representation
    that the [appellants] income was only $80,000. Had she been given the
    information now available to the court (and known by the [appellant] at the time),
    she would not have signed the [2005] Amending Agreement.

[26] I also find the 2005 Amending Agreement, in its treatment
    of the 43 Charnwood property, to be unconscionable. There was, in my view, an
    inequality between the parties, a preying by the [appellant] on the
    [respondent] which, combined with her economic vulnerability, placed upon the
    [appellant] a duty to act with scrupulous care for the [respondents] welfare
    and interests. The [appellants] failure to disclose that his income was
    roughly four times that which he represented it to be was a serious breach of
    that duty.

[27] For these reasons, I find the [2005] Amending Agreement
    was obtained as a result of the [appellants] non-disclosure of material
    financial information and was unconscionable. In the circumstances, I exercise
    my discretion to set the [2005] Amending Agreement aside.

[28]

From
    these reasons, it is also clear that the applications judge understood that the
    concept of unconscionability in the context of the execution of domestic
    contracts is not synonymous with unconscionability as it is understood in the
    common law of contract: see
Miglin v. Miglin
, 2003 SCC 24, [2003] 1
    S.C.R. 303, at para. 82.

[29]

Where
    there are circumstances of oppression, pressure, or other vulnerabilities and
    evidence of one partys exploitation of such vulnerabilities during the
    negotiation process, with the result that the domestic contract deviates
    substantially from the legislation, the contract need not be enforced: see
Miglin
,
    at paras. 81-83; and
Rick v. Brandsema
, 2009 SCC 10, [2009] 1 S.C.R.
    295, at para. 44.

[30]

I
    understand the applications judge to have found that the 2005 Amending
    Agreement was entered into as a result of the appellant having taken advantage
    of the inequality between him and the respondent, and the respondents economic
    vulnerability. This preying upon the respondent was manifested in the appellants
    non-disclosure of significant financial information and the treatment of the
    Charnwood Property itself within the 2005 Amending Agreement.

[31]

I
    dealt with the applications judges findings on financial non-disclosure immediately
    above and there is no need to repeat that analysis, which justifies the
    applications judges finding of unconscionability. I will deal with whether the
    treatment of the Charnwood Property in the 2005 Amending Agreement was
    unconscionable as part of my analysis of Issue #2, below.

The Third Argument

[32]

Did
    the applications judge err in failing to consider the relevant factors when
    exercising his discretion to set aside the 2005 Amending Agreement? He did not.

[33]

In
    determining whether a domestic contract should be set aside pursuant to s.
    56(4) of the
FLA
, the court is to follow a two-step process: see
Virc
    v. Blair et al.
, 2014 ONCA 392, 119 O.R. (3d) 721, at para. 52:

Step 1. Has the party seeking
    to set aside the agreement demonstrated that one or more of the s. 56(4)
    circumstances is engaged?; and

Step 2. If so, is it
    appropriate for the court to exercise its discretion to set aside the
    agreement?

[34]

There
    can be no doubt that the applications judge was alive to this two-step process,
    as paras. 8-10 of his reasons contain an accurate summary of it.

[35]

The
    applications judge also carefully followed that process.

[36]

For
    the reasons already given, it is clear that the applications judge found that
    the first step in the process was met because the appellant had failed to
    disclose to the respondent significant financial assets when the 2005 Amending
    Agreement was made (s. 56(4)(a),
FLA
).

[37]

It
    is equally clear that the applications judge had regard to the relevant
    considerations on the second step.

[38]

In
    addition to the findings made on the first step, findings which led the
    applications judge to conclude that the 2005 Amending Agreement was unconscionable,
    the applications judge also considered the respondents conduct in respect of
    financial disclosure. Although the applications judge noted that the respondent
    could have pursued more detailed disclosure at the time the 2005 Amending
    Agreement was entered into, it is not clear it would have been forthcoming
    without a fight (at para. 15). It is also implicit in the applications judges
    reasons that the respondent took the benefits of the 2005 Amending Agreement
    but, given that the applications judge set that agreement aside, this does not
    factor against the respondent. Further, the applications judge found that the
    respondent had fulfilled her obligations under the 2005 Amending Agreement by paying
    the mortgage and other carrying costs on the Charnwood Property.

[39]

Accordingly,
    I do not accept that the applications judge failed to have regard to the
    relevant considerations when he exercised his discretion and set aside the 2005
    Amending Agreement.

Issue #2:     Did the applications judge err in finding the
    respondent to be the sole owner of the Charnwood Property?

[40]

The
    appellant says that the parties used the net sale proceeds of $120,000 from the
    sale of the Yorkminster Property towards the purchase the Charnwood Property. As
    the Yorkminster Property was jointly owned by the parties, the appellant
    submits that both parties advanced funds to purchase the Charnwood Property. Accordingly,
    he submits, given that title to the Charnwood Property was taken in the
    respondents name alone, the presumption of resulting trust applies. That
    presumption was not rebutted because there was no evidence to suggest that the
    appellant intended to make a gift of his share of the proceeds of sale to the
    respondent. Thus, the appellant contends, he is entitled to a 50% beneficial
    interest in the Charnwood Property.

[41]

The
    full answer to this submission lies in paras. 17-24 of the reasons of the
    applications judge, which can be summarized as follows.

[42]

When
    the matrimonial home (the Yorkminster Property) was sold, the parties had net
    equity available of $257,000. Only half of the net equity ($128,500) went
    towards the purchase of the Charnwood Property. That half belonged to the
    respondent.

[43]

The
    appellant looked after the transaction. The applications judge found that he
    elected to use his half of the net equity from the sale of the Yorkminster
    Property to make a discretionary payment to himself or those he chose to
    confer a benefit upon. He paid $48,500 to Pegah, his construction company, allegedly
    because Pegah made a deposit on the purchase of the Yorkminster Property and
    made renovations on it. The applications judge rejected this, noting that
    Pegahs bookkeeper had testified that the costs of renovations to the
    matrimonial home had been paid by the appellant personally or had been written
    off.

[44]

The
    appellant used the other $80,000 of his share of the net equity to make a
    payment on his fathers home, allegedly because his father had made loans to
    the parties earlier in their marriage. The applications judge did not accept
    that such loans had been made. He found that the allegation of debts owing to
    the appellants father lacked credibility due to an absence of objective
    evidence and the admitted discretion afforded to the appellant in his control
    over his fathers Canadian finances. He described the appellants financial
    relationship with his father as almost entirely undocumented, and explained that
    the father had complete trust in the appellant, with the appellant often treating
    his fathers bank account as if it were his own. The applications judge also
    noted that there was no independent record of amounts loaned to, or owed by,
    the appellant to his father.

[45]

In
    addition to finding that only the respondents funds were used for the down payment
    on the Charnwood Property, the applications judge found the respondent to have
    been entirely responsible for making the mortgage payments and paying the other
    carrying costs on that property. These obligations flowed from the terms of the
    2005 Amending Agreement. The respondent met those obligations from the support that
    she received from the appellant. In the result, the mortgage payments made on
    the Charnwood Property were from funds taxed in the respondents hands for
    which the appellant received a tax deduction. It was in this context that the
    applications judge found the treatment of the Charnwood Property in the 2005
    Amending Agreement, which purported to give the appellant half the net equity on
    its sale, to be unconscionable.

[46]

These
    findings, coupled with the applications judges findings that the appellant
    preyed on the respondents economic vulnerability and that the appellant had
    not disclosed material financial information, satisfy the test for
    unconscionability, set out above.

[47]

As
    for the appellants resulting trust submission, once the applications judge
    found that only the respondents funds were used towards the purchase of the
    Charnwood Property and that only she made payments on the mortgage, there was
    no room for the operation of the presumption of resulting trust.

Issue #3:     Did the applications judge err in the quantum
    and duration of the prospective spousal support?

[48]

The
    appellants submission on this ground of appeal runs as follows. In
Miglin
,
    at paras. 79-85, the Supreme Court of Canada held that when parties execute an agreement
    in the family law context and that agreement is called into question, the court
    must engage in a two-stage inquiry.

[49]

As
    part of the first stage, the court must consider the circumstances in which the
    agreement was negotiated and executed to determine whether there is any reason
    to discount it. As well, the substance of the agreement must be considered so
    that the court can determine whether it is in substantial compliance with the
    objectives of the
Divorce Act
, R.S.C. 1985, c. 3 (2nd Supp.).

[50]

The
    appellant says that the applications judge did not take into consideration the factors
    and objectives set out in the
Divorce Act
, as required by
Miglin
,
    at para. 84. Instead, he says, the applications judge simply ran the
Spousal
    Support Advisory Guidelines
(the SSAGs) and ordered spousal support of $7,452
    per month for an additional two years.

[51]

I
    do not accept this submission.

[52]

The
    applications judge succinctly set out the applicable legal principles when
    considering the respondents claim for ongoing spousal support. At paras. 77-79
    of his reasons, he states as follows:

[77] With respect to spousal support, I am to consider the
    condition, means, needs and other circumstances of each spouse including the
    length of time the spouses cohabited; the functions performed by each spouse
    during cohabitation; and any order, agreement or arrangement relating to
    support of either spouse.

[78] A spousal support order must address the following
    objectives: recognize any economic advantages or disadvantages to the spouses
    arising from the marriage or its breakdown; apportion between spouses any
    financial consequences arising from the care of any child of the marriage over
    and above any obligation for the support of that child; relieve any economic
    hardship of the spouses arising from the breakdown of the marriage; as far as
    practicable, promote the economic self-sufficiency of each spouse within a
    reasonable period of time.

[79] No one objective is paramount and each objective should be
    accorded equal weight. The award of spousal support is ultimately
    discretionary; marriage per se does not give rise to a spousal support
    obligation.

[53]

The
    applications judge carefully considered the issue of entitlement and found that
    even post-separation, the appellant derived a significant benefit from the
    respondents dominant role in childcare. He further found that while the
    respondents role did not prevent her from working at all, it did create some
    limits on what she could do. He weighed the competing factors and ordered a
    further two years of spousal support (from January 1, 2014) to enable the
    respondent to regroup, assess her options, pursue additional job training or
    development and transition to financial self-sufficiency (at para. 90).

[54]

As
    the applications judge noted, his decision in this regard was discretionary. I
    see no basis on which to interfere with the exercise of his discretion.

[55]

As
    for the appellants complaint about the quantum of support ordered, I note two
    things. First, the SSAGs

do not impose a cap on the amount of spousal
    support to be awarded when a payors annual income exceeds $350,000. Second, the
    applications judge set the amount based on the methodology that the appellant
    had proposed for setting retroactive spousal support for 2010-2013. As such,
    the appellant cannot now claim that there is no explanation for how or why the
    applications judge came to the quantum ordered.

THE CROSS-APPEAL

Issue #4:     Did the applications judge err in failing to
    order retroactive child and spousal support prior to 2010?

[56]

I
    see no merit in the respondents claim that the applications judge erred in
    disallowing her claim for retroactive child and spousal support prior to 2010.
    The respondent argues that the applications judge placed too much emphasis on
    her delay in asserting this claim.  I disagree.

[57]

The
    applications judge found that the respondent had not put forward any credible,
    reasonable excuse for failing to assert those claims before 2010. In making
    this finding, the applications judge noted, among other things, that the
    respondent had sworn an affidavit in 2004, to obtain the divorce, in which she
    indicated that she was content with the terms of the 1999 Agreement with
    respect to support. The applications judge also found that the respondent had
    not provided a basis for such claims. I understand him to be referring to the
    absence of evidence suggesting that either the childrens needs or her needs had
    not been met in the relevant time period.

[58]

In
    these circumstances, it cannot be said that the applications judge erred in
    failing to order retroactive support.

Issue #5:     Did the applications judge err in failing to
    award pre-judgment interest on the retroactive child and spousal support order?

[59]

After
    the applications judge made his findings about the parties respective incomes
    in the relevant years, he asked the parties to calculate the amount of support
    that the appellant owed the respondent. They agreed on that amount ($208,048)
    and sent the applications judge a joint letter (the Joint Letter) to that
    effect. The applications judge used that amount in making the Second Order.

[60]

The
    Second Order did not include an award for pre-judgment interest. The respondent
    had sought such an award in her pleadings and in her written closing
    submissions. She contends that the applications judge erred in failing to make
    the award.

[61]

The
    appellant says that if the respondent had wished to assert such a claim, she
    should have done so at the time the Joint Letter was sent to the applications
    judge.

[62]

In
    my view, the applications judges failure to award pre-judgment interest was an
    oversight. The respondent is
prima facie
entitled to interest on the
    retroactive child and spousal support ordered, pursuant to s. 128(1) of the
Courts
    of Justice Act
, R.S.O. 1990, c. C.43 (the
CJA
). Furthermore, both the
    respondents pleadings and her written closing submissions indicated that she
    sought pre-judgment interest. I see no basis on which to deny her pre-judgment
    interest on the net amount owing for child and spousal support to the end of
    2013. The Joint Letter responded to the applications judges request for a
    calculation of the amount that the appellant owed the respondent for unpaid
    support over a period of time. It does not specify that pre-judgment interest
    was to be included and neither party viewed it as including such.

[63]

Accordingly,
    I would allow the cross-appeal on this issue alone and order that the respondent
    is entitled to pre-judgment interest on the amount of the retroactive child and
    spousal support.

[64]

Having
    said that, rather than raising this issue by way of cross-appeal, it seems to
    me that when the respondent discovered the error, she ought to have followed
    either of the mechanisms provided by rr. 25(5) and 25(19) of the
Family Law
    Rules
, O. Reg. 426/00,

and disputed the contents of the Second Order
    before the applications judge or moved to have the Second Order changed when
    she discovered the error.

Issue #6:     Did the applications judge err in time-limiting
    the spousal support award and the quantification of that support?

[65]

The
    respondent submits that this court should set aside the applications judges
    determination of post-2009 spousal support on the basis that it is insufficient
    and should not be time-limited.

[66]

An
    appellate court is not to interfere with a support order unless that order is
    based on an error in principle, a significant misapprehension of the evidence,
    or is clearly wrong: see
Hickey v. Hickey
, [1999] 2 S.C.R. 518, at para.
    11.

[67]

As
    I have explained above in my analysis of Issue #3, in making the spousal
    support award for the post-2009 period, the applications judge applied the
    appropriate legal principles to findings that were solidly grounded in the
    evidence. I see no significant misapprehension of the evidence on the part of
    the applications judge and the award is not clearly wrong.

[68]

As
    I did not address the time-limited aspect of the spousal support order above, I
    would simply add the following. The applications judge made clear factual findings
    which fully justify his decision to time-limit further spousal support. Those
    findings include the following:

·

by the time the First Order was made, the respondent had received
    spousal support for some 14 years;

·

the parties separated after 16 years of marriage;

·

the children had grown up and no longer needed the respondents
    full-time care and attention;

·

the respondent was relatively young (she was 37) when the parties
    separated;

·

the respondent was intentionally under-employed;

·

there was no medical or other evidence to suggest that the
    respondent had limited employment opportunities; and

·

evidence of the respondents efforts to achieve financial
    self-sufficiency was lacking.

[69]

Effectively,
    the applications judge found that the respondent was capable of supporting
    herself but had not made reasonable efforts to do so. He ordered two years of
    further spousal support to enable the respondent to regroup, assess her
    options, pursue additional job training or development and transition to
    financial self-sufficiency.

Issue #7:     Did the applications judge err in his disposition
    of the costs of the application?

[70]

Section
    133(b) of the
CJA
provides that leave to appeal is required where an
    appeal is only as to a discretionary costs order. When, however, the
    disposition on appeal changes the decision under appeal, leave to appeal from
    the costs order is not necessary:
St. Jean
(
Litigation Guardian of
)
    v.
Cheung
, 2009 ONCA 9, 173 A.C.W.S. (3d) 984, at para. 4.

[71]

Here,
    since I would allow the cross-appeal on the issue of pre-judgment interest, the
    disposition of the cross-appeal changes the decision below. Thus, it would seem
    that leave to appeal the costs order is not required.

[72]

Nonetheless,
    I would not interfere with the costs award. On a review of that award, I see no
    error in principle and it is not plainly wrong.

[73]

When
    I factor in the change to be made to the Second Order as a result of the
    cross-appeal, I remain of the view that no interference with the costs award is
    warranted. The change arising from the respondents success on the pre-judgment
    interest issue is minor in the overall context of these proceedings.

[74]

Moreover,
    as I have explained above, the respondent could have had the matter of
    pre-judgment interest addressed by the applications judge or on motion. Had she
    done so, it appears likely that no cross-appeal would have been required on
    that particular matter. In these circumstances, I am of the view that the costs
    award below should not be interfered with.

DISPOSITION

[75]

For
    these reasons, I would dismiss the appeal and allow the cross-appeal only on
    the matter of pre-judgment interest. I would amend the Second Order to provide
    that the respondent is entitled to pre-judgment interest on the total amount of
    child and spousal support owed to the end of 2013 by the appellant. If the
    parties are unable to agree on the quantification of the pre-judgment interest,
    they shall return to the applications judge to have that matter resolved.

[76]

I
    would make no order as to costs of the appeal and cross-appeal because, with
    the exception of the matter of pre-judgment interest, success was divided.

[77]

In
    respect of the pre-judgment interest issue, I would make two observations. First,
    that issue occupied a very small part of the cross-appeal (and no part of the
    appeal). Second, as I have explained, had the respondent used either rr. 25(5)
    or 25(19) of the
Family Law

Rules,
it might have been unnecessary
    to have brought the cross-appeal on this matter. With these considerations in
    mind, in my view, no order as to costs of the appeal and cross-appeal is
    warranted.

Released: November 16, 2015 (E.E.G.)

E.E. Gillese
    J.A.

I agree. S.E. Pepall J.A.

I agree. P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: The Catalyst Capital Group Inc. v. Moyse, 2015 ONCA
    784

DATE: 20151117

DOCKET: M45378 M45387 (C60799)

Hoy A.C.J.O., MacFarland, and Lauwers JJ.A.

BETWEEN

The Catalyst Capital Group Inc.

Plaintiff (Appellant/
Responding Party
)

and

Brandon Moyse and West Face Capital Inc.

Defendants (Respondents/
Moving Party
)

Rocco Di Pucchio, for the appellant/responding party

Kristian Borg-Olivier and Denise Cooney, for the respondents/moving
    party Brandon Moyse

Andrew Carlson, for the respondents/moving party West
    Face Capital Inc.

Heard: November 5, 2015

Motion to quash an appeal from the judgment of Justice B.T.
    Glustein of the Superior Court of Justice, dated July 7, 2015, with reasons
    reported at 2015 ONSC 4388.

Lauwers J.A.:

[1]

The motion judge dismissed the motion of Catalyst Capital Group Inc. for
    a declaration that its former employee, Brandon Moyse, is in contempt of the July
    16, 2014 order of Firestone J. for failing to preserve certain electronic
    records relating to Catalyst.

[2]

The moving party, Mr. Moyse, seeks to quash Catalysts appeal on the
    basis that the judgment appealed from is interlocutory and therefore falls
    within the jurisdiction of the Divisional Court under s. 19 of the
Courts
    of Justice Act
, R.S.O. 1990, c. C.43
.
    For the reasons set out below, I would quash the appeal.

FACTUAL BACKGROUND

[3]

Mr. Moyse is a former employee of Catalyst. He accepted employment with
    a competitor of Catalyst. Catalyst was concerned that he had or would impart its
    confidential information to his new employer.

[4]

Eventually, on Catalysts motion, Firestone J. issued an interim consent
    order for injunctive relief, dated July 16, 2014. The court ordered that Moyse
    and [his new employer], and its employees, directors and officers, shall
    preserve and maintain all records in their possession, power or control,
    whether electronic or otherwise, that relate to Catalyst. Paragraph 5 of this
    order provided:

THIS COURT FURTHER ORDERS that Moyse shall turn over any
    personal computer and electronic devices owned by him or within his power of
    control (the Devices) to his counsel, Grosman, Grosman and Gale LLP, (GGG)
    for the taking of a forensic image of the data stored on the Devices (the Forensic
    Image), to be conducted by a professional firm as agreed to between the
    parties.

[5]

Catalyst brought a motion for a declaration that Mr. Moyse was in
    contempt of the consent order.

MOTION JUDGE FOUND NO CONTEMPT

[6]

The motion judges reasons set out a lengthy review of the evidence. He
    was unable to find beyond a reasonable doubt that Catalyst had established
    that Mr. Moyse was in contempt. His specific findings are relevant to
    Catalysts argument on this motion to quash.

[7]

With respect to Mr. Moyses actions in deleting the personal browsing
    history from his computer, the motion judge found, at para. 69: there is no
    evidence to establish, beyond a reasonable doubt, that Moyse deleted relevant
    information as a result of deleting his personal browsing history and then
    running a registry cleaner to delete traces of the internet searches.

[8]

With respect to Mr. Moyses conduct in buying and using software to
    scrub files from his personal computer before delivering it, the motion judge
    stated, at para. 86:

I cannot find that the above evidence supports a finding,
    beyond reasonable doubt, that Moyse breached the Consent Order by scrubbing
    relevant files with the Secure Delete program. There still remained 833
    relevant documents on his computer, as well as the evidence on his computer of
    the ASO program, the Secure Delete folder, and the purchase receipts. The
    evidence is at least as consistent with Moyse's evidence that he loaded the ASO
    software and investigated the products it offered and what the use would
    entail, but he did not run the Secure Delete program.

ANALYSIS

[9]

Mr. Moyse argues that an order dismissing a contempt motion is
    interlocutory for the purpose of an appeal, and therefore lies to the Divisional
    Court, with leave, under s. 19(1)(b) of the
Courts of Justice Act
.  He
    relies on this courts brief endorsement in
Simmonds v. Simmonds,
2013
    ONCA 479, which was an appeal from an order of a motion judge dismissing a motion
    for a finding of contempt against the respondents spouse in a family dispute.
    There, the motion judge found that the respondent had complied with the
    disclosure order in question. In
Simmonds
,
this court accepted
    the respondents argument that while an order finding contempt is final, the
    dismissal of the motion for contempt was interlocutory: the motion judges
    finding was not binding on the trial judge. The court rejected the conclusion
    to the contrary found in
Pimiskern v. Brophey
,
[2013] O.J. No. 505 (S.C.).

[10]

Catalyst
    argues that the ruling precedent is this courts decision in
Sabourin and
    Sun Group of Companies v. Laiken
,
2013 ONCA 530, in which the court heard
    an appeal from a decision dismissing a contempt motion. That case was about the
    possible breach of a
Mareva
injunction. I observe that the court did
    not advert to the interlocutory/final distinction or to the question of
    jurisdiction at all. The issue appears not to have been argued.

[11]

In
    fairness to the parties, this courts decisions on the final/interlocutory
    distinction have not been models of clarity. Much ink has been spilled, and
    court and counsel time wasted in exploring the nuances. But the root principle that
    all can and do accept was expressed by Middleton J.A in
Hendrickson v.
    Kallio
, [1932] O.R. 675:

The interlocutory order from which there is no appeal is an
    order which does not determine the real matter in dispute between the parties
    -- the very subject matter of the litigation, but only some matter collateral.
    It may be final in the sense that it determines the very question raised by the
    applications, but it is interlocutory if the merits of the case remain to be
    determined.

[12]

This
    important case is one to which this court frequently returns. See, for example,
Waldman v. Thomson Reuters Canada Ltd.
, 2015 ONCA 53, MacFarland J.A.
    at para. 22. On the

Hendrickson v. Kallio
test, there can be no
    doubt that the dismissal of the contempt motion is interlocutory. The merits of
    the case remain to be determined.

[13]

But
    Catalyst drills deeper and argues that in this case the outcome of the motion
    is effectively final in a significant dimension. It submits that the important
    point for the court to keep in mind is that it would not be open to a party who
    was unsuccessful in a contempt motion to revisit the contempt motion at trial.
    Counsel argues that the motion judges decision that Mr. Moyses conduct did
    not contravene the order is
res judicata,
and Mr. Moyses conduct in
    deleting the browser history, for example, cant be re-litigated even in
    cross-examination. It is therefore final in the sense contemplated by the
Courts
    of Justice Act
.

[14]

I
    disagree. The motion judges findings are clear. He simply concluded that
    Catalyst had not proven, beyond a reasonable doubt, that Mr. Moyse
    breached Firestone J.s order. There is nothing in the motion judges decision
    that would prevent Catalyst from exploring, in Mr. Moyses cross-examination at
    discovery or at trial, what he did with his computer, when he did it, why he
    did it, who assisted him (if anyone), how he did it and for what purpose or
    purposes. While the finding that Mr. Moyse was not in contempt may not itself be
    re-litigated, barring some new revelation, all of the factual issues between
    the parties may be fully and exhaustively explored at any discovery and at the
    trial.

[15]

In
    the circumstances of this appeal, the principle in
Simmonds
applies.
    The order dismissing the contempt motion against Mr. Moyse is interlocutory,
    and therefore appealable to the Divisional Court, with leave, under s. 19(1)(b)
    of the
Courts of Justice Act
.

[16]

I
    would quash the appeal without prejudice to Catalysts right to seek leave to
    appeal to the Divisional Court. I would award Mr. Moyse costs fixed in the agreed
    amount of $5,000, all-inclusive.

Released:  November 17, 2015 AH             P. Lauwers J.A.

I
    agree Alexandra Hoy A.C.J.O.

I
    agree J. MacFarland J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Todd Brothers Contracting Limited v. Algonquin
    Highlands (Township), 2015 ONCA 737

DATE: 20151103

DOCKET: C60276

Feldman, Lauwers and Benotto JJ.A.

BETWEEN

Todd Brothers Contracting Limited

Plaintiff (Appellant)

and

Corporation of the Township of Algonquin
    Highlands

Defendant (Respondent)

Leo Klug, for the appellant

Todd Robinson, for the respondent

Heard: October 27, 2015

On appeal from the decision of Justice Stephen T. Bale of
    the Superior Court of Justice, dated March 6, 2015 with reasons reported at
    2015 ONSC 1501.

ENDORSEMENT

[1]

The motion judge granted summary judgment to the respondent dismissing
    the appellants claim on a construction contract for the refurbishment and
    extension of a small airport. The motion judge relied  heavily on a waiver
    clause signed by the appellant which provided:

And finally, further it is in this capacity that I swear and
    declare that I will not seek any compensation for damages for timing delays or
    work identified but not completed on this project in the event that the
    Township cannot proceed to any of the phases as a result of matters beyond the
    control of the Township of Algonquin Highlands or delays resulting from the
    review being completed by the CEAA [Canadian Environmental Assessment Agency]
    in a timely fashion
,
any
    other public issues/concerns
or the withdrawal of funding from
    applicable sources
. [Emphasis added.]

[2]

The respondent accepts the effect of the waiver as expressed by the
    appellant at para. 6 of its factum:

Todd Brothers executed the Compensation Waiver Acknowledgement
    and agreed not to seek compensation for damages for timing delays or for work
    identified but not completed in the event that the Township (a) cannot proceed
    to any of the phases as a result of matters beyond the control of the Township
    of Algonquin Islands, or (b) delays resulting from the review being completed
    by the CEAA in a timely fashion, or (c) as a result of any other public
    issues/concerns, or (d) as the result of the withdrawal of funding from
    applicable sources.

For practical purposes, only (c) and (d) are in issue.

[3]

The heart of the motion judges findings is set out in the following
    paragraphs of the reasons for decision:

13 CEAA completed its review in December of 2010, and provided
    a report to Township council. Although the report was not filed as evidence on
    this motion, it would appear that the airport project was approved, subject to
    the implementation of measures to mitigate any adverse environmental effects,
    and subject to certain conditions with respect to reporting. However, a newly
    elected Township council whose members were predominately opposed to the
    project passed a resolution to "defer the execution of the [CEAA report]
    until a further review of the project is conducted."

14 In January of 2011, the Ministry of Natural Resources (MNR)
    proposed a joint airport improvement project, as part of which the Ministry
    would relocate its northeastern fire management headquarters, and consolidate
    its regional operations, at the Haliburton/Stanhope airport. Pursuant to its
    contribution agreement with OMAFRA [the Ontario Ministry of Agriculture, Food
    and Rural Affairs], the Township was obliged to consider MNR's proposal; and,
    although the evidence is not entirely clear on this point, it appears that the
    joint project proceeded, rather than Parts A, B and C of the original project.

15 Todd Brothers' position on the waiver is that Township
    council should have signed off on the CEAA report in December of 2010, and that
    its failure to do so was a purely political decision. However, the political
    decision was based upon public concerns (the members elected to council had
    campaigned in opposition to the original project), and the proposal made by MNR
    in January 2011 would have intervened in any event.

16 In these circumstances, the Township is entitled to rely
    upon the written waiver in full defence to Todd Brothers' claim. The Township
    was unable to proceed with Parts A, B and C of the original project prior to
    December of 2010, because of the ongoing CEAA review. It was unable to proceed
    with those parts of the original project after December of 2010, because of the
    joint airport improvement proposal made by MNR. Had the Township failed to
    pursue the joint project with MNR, as required by the OMAFRA contribution
    agreement, it risked withdrawal of provincial funding.

[4]

The appellant argues that there was no evidence to support reliance on
    the other public issues/concerns provision in the waiver. However, the
    respondent points out that there was public outcry about the project, which was
    to extend and refurbish a small airport. The airport project was an issue in
    the 2010 municipal election, which returned a majority of councillors opposed
    to it, as the motion judge noted at para. 13.

[5]

The appellant argues that there was no evidence that a withdrawal of
    funding might occur, so as to trigger that clause in the waiver. However, the
    respondent points to the January 2011 proposal of the Ministry of Natural
    Resources as a relevant public issue for the purpose of the waiver, which
    also triggered the funding aspect. The Townships financial contribution
    agreement with the OMAFRA, under which the project was to be funded, provides:

4.10 Alternatives to Project. If the Recipient [Township]
    becomes aware of any alternatives to the Project that are more cost effective
    (for example, at area/joint servicing scheme), the Recipient shall immediately
    notify OMAFRA, in which case OMAFRA may, in its sole discretion, adjust the
    Financial Assistance. Likewise, if OMAFRA becomes aware of any alternatives to
    the Project, that are more cost effective, the Recipient will be notified and
    OMAFRA may, in its sole discretion, adjust the Financial Assistance.

[6]

The evidence supports the motion judges conclusions, at para. 14, that
    the Township was obliged to consider the joint development, and, at para 16,
    that failing to pursue the joint project risked withdrawal of provincial
    funding. There is ample support for the motions judges finding that in the
    circumstances, the Township is entitled to rely upon the written waiver in
    full defence to Todd Brothers' claim.

[7]

Finally, counsel for Todd Brothers advises that he was unable to get a
    clear explanation of why the Township failed to proceed with the original
    project, and why the appellant did not get the work on the joint project. He
    submits the motion judge should have refused summary judgment and required the
    matter to proceed to trial after discoveries. We would not give effect to this
    submission. The original project was evidently superseded by the joint project.
    Todd Brothers could have used other avenues under the
Rules of Civil
    Procedure
open to a party to a pending motion to obtain information from
    other parties, even non-parties, as to why Todd Brothers did not participate in
    the joint project, in preparing evidence to respond to the summary judgment
    motion, but did not.

[8]

The appellant has not identified any error of law, or a palpable and
    overriding error of fact, in the motion judges application of the waiver
    clause in granting summary judgment.

[9]

The appeal is dismissed with costs fixed in the amount of $8,500 all-inclusive,
    payable to the respondent.

K.
    Feldman J.A.

P.
    Lauwers J.A.

M.L.
    Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Wabafiyebazu v. Farley Smith & Murray Surveyors Ltd., 2015 ONCA 809

DATE: 20151124

DOCKET: C60811

Cronk, Epstein and Huscroft JJ.A.

BETWEEN

Germano Ngoma Wabafiyebazu

Plaintiff (Appellant)

and

Farley, Smith and Murray
    Surveying Ltd.

Defendant (Respondent)

Germano Ngoma
    Wabafiyebazu, appearing in person

Christopher L. Hluchan, for the respondent

Heard: November 13, 2015

On appeal from the judgment of Justice Rick T. Leroy of
    the Superior Court of Justice, dated October 20, 2014.

ENDORSEMENT

Introduction

[1]

The appellant appeals from summary judgment granted by the motion judge dismissing
    his action against the respondent surveying company.

[2]

This litigation arose from a dispute between the appellant and his
    neighbour regarding the location of a boundary line between their respective
    properties.  The appellant and his wife purchased their lot on June 30, 1999.
    After they acquired the property, the appellant planted a hedge along what he understood
    to be the boundary between his lot and that of his adjoining neighbour, based
    on information provided by his real estate agent.  Several years later, when a
    new owner of the adjoining lot sought to develop his property, a survey
    revealed that the appellants hedge encroached on the neighbours property.
    The neighbour reclaimed the affected land by having the hedge relocated to the
    boundary depicted on the survey.

Respondents Involvement

[3]

The pertinent background facts regarding the respondents involvement
    may be summarized in brief as follows.

[4]

In 1988, the respondent had prepared a draft reference plan in support
    of the proposed severance of the appellants lot and that of his adjoining
    neighbour.  The neighbour applied for severance to the local Committee of
    Adjustments.  In November 1989, after some amendments to the initial severance
    proposal, the Committee granted both severance and revised minor property
    variances.

[5]

The following year, the respondent prepared another reference plan
    showing the boundaries and respective land areas of the two lots.  A revised
    reference plan was filed in late September 1990 and, on November 19, 1990, was
    accepted by the Committee of Adjustments.

[6]

In October 2001, the adjoining property was sold to a new owner.  It
    remained vacant for some years.  However, in 2006, the new neighbour retained
    the respondent to survey his lot, in support of an application for a building
    permit.  The survey, dated May 30, 2006, revealed that the appellants hedge
    encroached on the neighbours lot.  The neighbour relocated the hedge to the
    boundary depicted on the final September 1990 reference plan and the May 2006
    survey.

[7]

The appellant retained counsel to investigate the boundary issue.  He
    also visited the respondents offices, asserting that the survey was incorrect
    or faulty and that he had lost property as a result.  In late August 2006, he
    obtained a copy of the final reference plan from the respondent.  The appellant
    did not accept the respondents explanation of the boundary line.  He continued
    to attend at the respondents offices on several occasions in 2006 and 2007 in
    an effort to obtain a corrected reference plan reflecting what he regarded as
    the boundary line contemplated by the Committee of Adjustments prior decision.

[8]

In November 2011, when the dispute concerning the accuracy of the survey
    and the reference plan continued, the appellant sued the respondent and the
    Association of Ontario Land Surveyors, seeking various forms of relief.  As
    against the respondent, among other things, the appellant claimed general and
    punitive damages and an order correcting the disputed survey and reference
    plan.

[9]

On March 30, 2012, the Association of Ontario Land Surveyors obtained
    summary judgment, dismissing the appellants action as against the
    Association.  That judgment is not at issue on this appeal.

[10]

The
    respondent also moved for summary judgment.  The appellant filed no evidence in
    response to the respondents motion.

[11]

The
    motion judge found there was no genuine issue requiring a trial.  He noted that
    the appellants claim as against the respondent was framed in negligence and determined
    that the claim was outside the two-year limitation period established by s. 4
    of the
Limitations Act, 2002
, S.O. 2002, c. 24, Sched. B (the
    Act).

[12]

The
    motion judge also found that: there was no evidence of negligence by the
    respondent in the performance of its survey work; the respondent was not
    responsible for the appellants mistake regarding the location of the disputed
    boundary line; and, even assuming that the respondent owed the appellant a duty
    of care, the losses claimed by the appellant were too remote from any alleged
    negligence, in any event.  On this ground, as well, the motion judge concluded
    that the appellant had no actionable claim against the respondent.

[13]

Accordingly,
    by order dated October 20, 2014, the motion judge granted summary judgment in
    favour of the respondent and dismissed the appellants action.

Discussion

[14]

We see no error in the motion judges conclusion that the appellants
    action was statute-barred.

[15]

Contrary to the appellants submission, his claim against the
    respondent, as pleaded, sounds in negligence (as reflected, for example, in paras.
    1, 34 and 35 of the statement of claim).  Consequently, the two-year limitation
    period provided for under s. 4 of the Act applied.

[16]

On
    the uncontradicted evidence before the motion judge, the appellant knew, by the
    summer of 2006, of the encroachment of his hedge on his neighbours property and
    of the boundary dispute.  Critically, the appellant acknowledged before the
    motion judge that, after conducting his own enquiries and attending at the
    respondents offices on several occasions, he had sufficient information by
    September 2008 to conclude that he had a cause of action against the respondent.

[17]

In
    these circumstances, the limitation period commenced to run by no later than
    September 2008 and expired by no later than September 2010.  The appellant did
    not commence his action against the respondent until November 2011, after
    expiry of the limitation period.  Accordingly, his action was statute-barred.

[18]

Before
    this court, the appellant argues that the motion judge had no jurisdiction to
    proceed with the summary judgment motion because, at the time of the motion, his
    action had already been set down for trial.  Further, the appellant says that
    he did not consent to the scheduling of a long motion for argument of the
    summary judgment motion.

[19]

These
    arguments do not assist the appellant.  We are satisfied that the respondent
    was entitled to bring a summary judgment motion under r. 20 of the
Rules of
    Civil Procedure
, R.R.O. 1990, Reg. 194 when it did.  Further, any
    procedural irregularity in the scheduling of a long motion does not undercut
    the reality that, as a matter of law, the limitation period in this case had
    run by the time the appellant started his action.

[20]

The
    appeal is therefore dismissed.  The respondent is entitled to its costs of the
    appeal, fixed in the amount of $7,500, inclusive of disbursements and all
    applicable taxes.

E.A. Cronk J.A.

Gloria Epstein
    J.A.

Grant Huscroft
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Wilson (Re), 2015 ONCA 787

DATE: 20151119

DOCKET: C60351

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

BETWEEN

Stewart Jared Kent Wilson

Appellant

(Respondent)

and

Paddon & Yorke, Trustees in Bankruptcy

Respondent

(Applicant)

Paul Alexander Robson, for the appellant Wilson

Brandon Jaffe, for the respondent Paddon & Yorke

Heard:  November 16, 2015

On appeal from the order Justice L. Pattillo of the Superior
    Court of Justice, dated April 10, 2015.

ENDORSEMENT

[1]

The appellant appeals the preservation order of the motion judge,
    ordering that the appellant deliver up the possession of certain luxury
    vehicles to the respondent trustee in bankruptcy or, if he no longer has
    possession of the vehicles, deliver up particulars concerning their sale and
    any bank accounts into which any monies received for the sale were deposited.
    The motion judge also ordered that the appellants bank accounts be frozen but
    provided that the appellant could return to court to rescind or vary the order
    once he provided the respondent with the requested information.

[2]

The appellant argues that the motion judge made multiple errors. In our
    view, his arguments are without merit. We address only two arguments, as they
    are dispositive of this appeal.

[3]

The appellants underlying argument is that the motion judge erred in
    finding that the appellant had a beneficial interest in the vehicles at the
    time of his bankruptcy, based on a June 8, 2010 trust agreement. He argues that
    but for that error, the motion judge would not have made the preservation
    order. The appellant says he only acquired an interest in the vehicles on March
    3, 2015, when Gray J. declared that that the trust agreement was valid and the
    appellant was the true owner of the vehicles. He deposes that before that date,
    he received no benefit from his alleged beneficial ownership of the vehicles:
    his estranged spouse would not even let him drive any of the vehicles.

[4]

We reject this argument.

[5]

The trust agreement  signed less than a year before the appellant made
    an assignment in bankruptcy  provided that the assets of 2246519 Ontario Inc. (Ontario)
    were the sole and exclusive ownership of [the appellant] and although held in
    the name of Ontario, Ontario has no right or ownership of the said assets.  The
    appellant did not disclose the trust agreement or his interest in the vehicles
    in his statement of affairs on his bankruptcy. The appellants estranged spouse
    subsequently claimed that she had an interest in the vehicles and the trust
    agreement was invalid. The appellant successfully opposed her application. On
    March 3, 2015, Gray J. found that the trust agreement was valid and that the
    appellant was the beneficial owner of the vehicles. However, he directed that a
    copy of his endorsement be sent to the respondent, who brought a motion before
    the motion judge for preservation of the vehicles and ancillary relief.

[6]

The motion judges finding that the appellant had a beneficial interest
    in some of the vehicles at the time of his bankruptcy is unassailable. The
    appellants interest in the vehicles is affirmed by the trust agreement. It did
    not arise as a result of Gray J.s declaration several years later. The fact  if
    true  that the appellants estranged wife would not even let him drive the
    vehicles before Gray J. made his order does not mean that he was not, at law,
    the beneficial owner of the vehicles.

[7]

The appellant also argues that the terms of the preservation ordered by
    the motion judge are heavy handed. The appellant points to no error in
    principle. We note that the motion judge provided that the appellant could
    return to court to rescind or vary the order once he provided the respondent
    with the requested information. We are not persuaded that the motion judge
    erred in the exercise of his discretion.

[8]

This appeal is accordingly dismissed.

[9]

The respondent shall be entitled to its costs of the appeal, fixed at $7450,
    inclusive of disbursements and HST. We are advised that pursuant to the May 22,
    2015 order of Lauwers J.A., the appellant paid $10,000 into court as security
    for costs. The parties agree that such amount shall be paid out the respondent,
    first, in satisfaction of the costs of this appeal, and, as to the balance, in
    partial satisfaction of the outstanding costs ordered by this court (Lauwers
    J.A., on May 22, 2015; Hourigan J.A. on June 30, 2015; and Sharpe J.A. on
    August 31, 2015.).

Alexandra
    Hoy A.C.J.O.

E.E.
    Gillese J.A.

David
    Brown J.A.