COURT OF APPEAL FOR ONTARIO

CITATION:

Burgiss v. Canada (Attorney General), 2013 ONCA 16

DATE: 20130111

DOCKET: C55897

MacPherson, Cronk and Lauwers JJ.A.

BETWEEN

Robert Burgiss

Plaintiff/Appellant

and

Attorney General of Canada

Defendant/Respondent

Robert Burgiss, in person

Michael J. Sims, for the respondent

Heard: January 11, 2013

On appeal from the order of Justice Donald J. Gordon of
    the Superior Court of Justice, dated July 24, 2012.

APPEAL BOOK ENDORSEMENT

[1]

The appellant appeals from the order of Gordon J. of the Superior Court
    of Justice, dated July 24, 2012, striking his amended statement of claim,
    without leave to amend.

[2]

We see no basis for appellate interference with the motion judges
    ruling.  The appellants pleading fails to disclose any reasonable cause of
    action in law against the respondent or any material facts sufficient to
    support his claims of negligent investigation and misfeasance in public office
    by the Royal Canadian Mounted Police arising from the police failure to
    investigate the appellants various criminal complaints.  The police owed no
    private or public law duty to the appellant to exercise their discretion in
    favour of investigating his complaints.  The motion judge, therefore, did not
    err in striking the appellants pleading, without leave to further amend.

[3]

The appeal is dismissed.  This is not an appropriate case for an award
    of the costs of the appeal.


COURT OF APPEAL FOR ONTARIO

CITATION:
Bushy
    (Re), 2013 ONCA 46

DATE: 20130125

DOCKET: C55917

Laskin, LaForme and Hoy JJ.A.

In the Matter of the Proposal of Owen Scott
    Bushey

BETWEEN

Andre Tardiff Agency Limited

Appellant

and

Burlingham Associates Inc., Administrator of the
    Proposal of Owen Scott Bushey

Respondent

Jonathan H. Wigley, for the appellant

No one appearing for the respondent

Heard and released orally: January 9, 2013

On appeal from the order of Justice H.M. Pierce of the Superior
    Court of Justice, dated July 13, 2012.

ENDORSEMENT

[1]

The appellant appeals the motion judges order of July 13, 2012
    dismissing its request that the Notice of Disallowance of its claim in the Consumer
    Proposal of Owen Scott Bushey be set aside.

[2]

We agree with the motion judge that the appellants motion should have
    been brought before the Court of Queens Bench of Saskatchewan in Saskatoon
    where the Consumer Proposal was filed.  See ss. 43(5) and 66.4 of the
Bankruptcy
    and Insolvency Act
(the BIA) and
Sam Levy & Associates Inc. v.
    Azco Mining Inc.
, (2001) SCC 92, at para. 27.

[3]

In our view, however, the motion judge erred by failing to consider
    whether she should exercise her discretion under s. 187(10) of the BIA to
    transfer the motion to the proper court, namely the Court of Queens Bench of
    Saskatchewan in Saskatoon.  Section 187(10) provides:

Nothing in this section invalidates any proceedings by reason
    of their having been commenced, taken or carried on in the wrong court, but the
    court may at any time transfer the proceedings to the proper court.

[4]

Her failure to do so appears to have resulted from her conclusion, which
    we do not endorse, that the appellants motion was in any event out of time
    because it was not heard by her within 30 days after the appellant was served
    with a Notice of Disallowance as required by s. 135(4) of the BIA.

[5]

In the result, we set aside the motion judge order and transfer the
    appellants motion to the Court of Queens Bench of Saskatchewan in Saskatoon.
    We make no determination as to the effect of the failure of the appellant to
    file its motion with the proper court within the 30-day period prescribed by s.
    135(4) of the BIA.

John Laskin J.A.

H.S. LaForme J.A.

Alexandra Hoy J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Catford
    v. Catford, 2013 ONCA 56

DATE: 20130130

DOCKET: C55867 & C55868

Doherty, Laskin and Blair JJ.A.

Roderick Roland Catford

Plaintiff (Appellant)

and

Peter Catford
,
Ellen Catford
, the County of Simcoe and Jamie Moran

Defendants (Respondents)

Roderick Catford, appearing in person

Timothy Flannery, for the plaintiff (appellant)

Kara E. Hamilton and D. Lex Arbesman, for the defendants
    (respondents), Peter Catford and Ellen Catford,

Peter Krysiak, for the defendants (respondents), County
    of Simcoe and Jamie Moran

Heard and released orally:  January 15, 2013

On appeal from the order of Justice S. Healey of the
    Superior Court of Justice, dated July 13, 2012.

ENDORSEMENT

[1]

The recusal motion was, in our view, properly dismissed.  The
    correspondence with the case management judge from the solicitor for one of the
    respondents may well have been improper and inaccurate in several of the
    comments made about the appellant who was acting for himself in this
    proceeding.  There is, however, no basis upon which a reasonable, informed
    member of the public, aware of the deeply embedded and longstanding tradition
    of judicial impartiality in this country, could possibly have concerns about
    the impartiality of the case management judge based on the comments made in the
    correspondence.

[2]

In our view, there was no basis upon which the motion judge should
    recuse herself and she properly dismissed the motion.

Doherty J.A.

John I. Laskin J.A.

R. A. Blair J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Catford
    v. Catford, 2013 ONCA 57

DATE:  20130130

DOCKET: C55868

Doherty, Laskin and Blair JJ.A.

Roderick Roland Catford

Plaintiff (Appellant)

and

Peter Catford
,
Ellen Catford
, the County of Simcoe and Jamie Moran

Defendants (Respondents)

Roderick Catford, appearing in person

Timothy Flannery, for the plaintiff (appellant)

Kara E. Hamilton and D. Lex Arbesman, for the defendants
    (respondents), Peter Catford and Ellen Catford

Peter Krysiak, for the defendants (respondents), County
    of Simcoe and Jamie Moran

Heard and released orally:  January 15, 2013

On appeal from the order of Justice S. Healey of the
    Superior Court of Justice, dated July 13, 2012.

ENDORSEMENT

[1]

The appellant argues that the motion judge erred in granting summary
    judgment in favour of the Catford defendants on the intentional infliction of
    mental suffering claim.  The motion judge concluded, having reviewed the
    extensive material before her on the summary judgment motion, that the
    appellant had failed to demonstrate a genuine triable issue on the question of
    whether the appellant had suffered a visible illness as a result of the
    defendants conduct.  There is no question but that this is an essential
    element of the claim advanced by the appellant.

[2]

In argument before us, the appellant referred to a comment he made in an
    email sent to his brother, the defendant, about his mental health and a comment
    made by his then girlfriend about an increase in the appellants medication.
    In our view, neither of these comments suffices to establish a genuine issue
    for trial on the question of whether the appellant suffered a visible
    injury.  As the trial judge correctly observed:

The appellant has not given evidence that he ever sought
    medical care or treatment arising out of the allegation made against these
    defendants in his claim.

[3]

The motion judge properly dismissed this claim and we would dismiss the
    appeal as against the Catford defendants.

[4]

During submissions as to the costs of the appeal, the court was advised
    that it had failed to consider the appellants appeal from the costs order made
    in favour of the Catford defendants on the motion.  We see no grounds upon
    which to interfere with that order.

Doherty J.A.

John I. Laskin J.A.

R. A. Blair J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Catford
    v. Catford, 2013 ONCA 58

DATE: 20130130

DOCKET: C55867

Doherty, Laskin and Blair JJ.A.

Roderick Roland Catford

Appellant

and

Peter Catford, Ellen Catford, the County of Simcoe
    and Jamie Moran

Respondents

Roderick Catford, appearing in person

Timothy Flannery, for the appellant

Kara E. Hamilton and D. Lex Arbesman, for the respondents,
    Peter and Ellen Catford,

Peter Krysiak, for the County of Simcoe and Jamie Moran

Heard and released orally:  January 15, 2013

On appeal from the order of Justice S. Healey of the
    Superior Court of Justice, dated July 13, 2012.

ENDORSEMENT

[1]

As against the County and its employee Mr. Moran, the appellant seeks to
    pursue only the defamation claim.  We will assume without deciding that by
    putting the relevant documents into the Ontario Works file, the respondents
    could be said in law to have published the contents of those documents for the
    purposes of a defamation claim.

[2]

The appellant acknowledges that the gathering of the material in
    question by the County and Mr. Moran attracts qualified privilege.  To succeed
    in this claim, the appellant must establish malice.  The motion judge reviewed
    the record before her and concluded there is simply no evidence of malice.  In
    this court, counsel for the appellant argued that the respondent Morans
    failure to investigate allegations made in three letters sent by the appellant
    to Moran demonstrated recklessness and, therefore, raised a genuine issue for
    trial on the question of malice.

[3]

On the evidence before the motion judge, Moran examined the claim put
    forward by the appellants daughter with Ontario Works in accordance with the
    procedures and criteria established by Ontario Works.  He concluded that under
    those procedures and criteria the daughter was eligible for financial
    assistance.  Moran received the three letters referred to by the appellant and
    on the evidence considered those letters.  The fact that Mr. Moran does not
    appear to have accepted the position advanced by the appellant in those three
    letters is simply not capable of supporting any inference of malice.   We agree
    with the motion judges assessment of the evidence as it relates to the issue
    of malice.  The defamation claim was properly dismissed by the motion judge,
    and the appeal as against the County and Mr. Moran is dismissed.

[4]

On the question of costs as it relates to the County and Mr. Moran, the
    motion judge awarded costs on a solicitor and client basis.  She did so
    because, in her view, the appellant had made unsubstantiated allegations of
    fraud and other forms of serious misconduct against the County and Mr. Moran.
    Unproven allegations of fraud and similar misconduct are a well-recognized
    basis upon which to award costs on a substantial indemnity basis.  We see no
    reason to interfere with the motion judges exercise of her discretion in this
    regard.  We also would not interfere with the quantum awarded by the motion
    judge.

[5]

The appeal as it relates to costs is also dismissed.

[6]

In all the circumstances, costs of this appeal and the appeal in C55868 are
    awarded in favour of the County and Moran in the amount of $12,000, inclusive
    of disbursement and all applicable taxes.  Costs of the appeal are also awarded
    in favour of the Catford defendants in the same amount.

Doherty J.A.

John I. Laskin J.A.

R. A. Blair J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Direk v. Kryshtalskyj, 2013
    ONCA 14

DATE: 20130111

DOCKET: C55857

Weiler, Blair and Rouleau JJ.A.

BETWEEN

Ural Direk; Kemal Direkoglu

Plaintiffs (Appellants)

(Disabled [with Medical-Conditions)

and

Nina Kryshtalskyj, M.D., C.C.F.P.; Zellers Drug
    Stores Ltd. Zellers Pharmacy #223, carried on as High Park Zellers Pharmacy;
    John H. Wait, M.D., F.R.C.S. (C); Aberfoyle Health Centre; St. Josephs Health
    Centre - Toronto

Defendants (Respondents)

Ural Direk and Kemal Direkoglu, self-represented

Julie Parla, for the respondents Nina Kryshtalskyj, John
    H. Wait, and Aberfoyle Health Centre

Danielle Stone, for the respondent Zellers

Daniel Girlando, for the respondent St. Josephs Health
    Centre

Heard and released orally: January 7, 2013

On appeal from the order of Justice J. Patrick Moore of
    the Superior Court of Justice, dated July 10, 2012.

ENDORSEMENT

[1]

The appellants initially sought an adjournment of their appeal  they
    referred to it as a standby - pending disposition of an International Court
    decision regarding a letter to that Court sent in September 2012 and pending a
    decision of the Supreme Court of Canada on their request for a reconsideration
    of its dismissal of their appeal in an another action and pending the
    determination of certain administrative law proceedings before the Law Society
    of Upper Canada, the Canadian Judicial Council and a Canadian Police Forces
    Tribunal.

[2]

We refuse this request. We see no reason why a decision on whether the
    statement of claim in the action under appeal should or should not be struck
    should be postponed at this stage.

[3]

With respect to the appeal itself, we see no merit in it. Mr. Direkoglu
    chose to make no submissions on the merits. Mr. Direk made submissions with the
    assistance of an interpreter. In our view, however, the motion judge made no
    error in striking the amended statement of claim. We agree that the amended
    statement of claim contains a long list of overly broad and sweeping statements
    of conclusion without the necessary supporting factual foundation. The
    conclusary allegations assert a wide-ranging conspiracy and fraud and claims of
    negligence against the respondents and many other non-parties.

[4]

We accept that Mr. Direk and Mr. Direkoglu may firmly believe these
    conclusions, but the conclusary allegations are not supported by material facts
    in the amended statement of claim, are not properly pleaded, and fail to
    disclose a cause of action against the respondents, with the exception noted by
    the Motion Judge concerning the hospital. Many of the allegations are simply
    attempts to re-litigate issues that have already been determined against the
    appellants in other proceedings.

[5]

We also agree with the Motion Judge that the problems with the pleading
    cannot be cured by granting the appellants, once again, leave to amend.

[6]

The appeal is therefore dismissed and the order of the Motion Judge
    confirmed in all respects.

[7]

Costs are fixed to the respondent doctors and Aberfoyle Health Centre in
    the amount of $6000; to St. Josephs Health Centre  Toronto in the amount of
    $1500; and to Zellers in the amount of $1500, all inclusive of disbursements
    and applicable taxes.

K.M. Weiler J.A.

R.A. Blair J.A.

Paul Rouleau J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
El
    Dali v. Panjalingam, 2013 ONCA 24

DATE: 20130118

DOCKET: C53417

Laskin, MacPherson and Gillese JJ.A.

BETWEEN

Walid El Dali
and
    Rajaa El Dali

Plaintiffs (
Appellant
)

and

Sothinathan Panjalingam and Pauchanathan
    Panjalingam

Defendants (Respondents)

Joseph Obagi and Elizabeth A. Quigley, for the appellant

Peter Cronyn and Patricia Lawson, for the respondents

Heard: November 28, 2012

On appeal from the judgment of Justice Hugh R. McLean of
    the Superior Court of Justice, dated February 11, 2011.

Laskin
    J.A.:

A.

OVERVIEW

[1]

On December 11, 2005, the appellant Walid El Dali was injured in a car
    accident.  The accident occurred on an icy, slippery road in Ottawa.  The
    respondent driver Pauchanathan Panjalingam lost control of his car, crossed the
    centre line of the road, and collided with El Dalis car.

[2]

El Dali sued Panjalingam for damages for negligence and the case was
    tried before McLean J. and a jury.

[3]

Although available to do so, Panjalingam did not testify to explain his
    driving.  Nonetheless, in answer to the question whether Panjalingams
    negligence caused or contributed to the accident, the jury responded no.  El
    Dalis action was therefore dismissed.  The jury did assess El Dalis damages:
    $35,000 for general damages, $55,000 for past loss of income, but zero damages
    for future loss of income.

[4]

El Dali appealed both liability and damages.  He argued four grounds of
    appeal:

(1)

The jurys verdict on liability was unreasonable and unsupported by the
    evidence.

(2)

The trial judge failed to instruct the jury properly on negligence and
    contributory negligence.

(3)

Defence counsels jury address, both on liability and damages, was
    misleading and inflammatory.  And the trial judge erred by failing to correct
    defence counsels misstatements.

(4)

The trial judge erred by failing to grant the appellants mistrial
    motion brought because the defence withheld certain documents relevant to El
    Dalis loss of future income claim.

[5]

We called on the respondents only on grounds 1 and 2.  In our view,
    defence counsels closing was neither misleading nor inflammatory.  It was
    simply forceful advocacy.  Further, the trial judge did not err in exercising
    his discretion not to declare a mistrial.  Overall, we are satisfied that the
    jurys damages award was reasonably supported by the evidence.

[6]

However, I would set aside the jurys verdict on liability and order a
    new trial on that issue.  In the absence of any explanation for Panjalingams
    driving or any evidence that he exercised reasonable care, the jurys verdict
    was unreasonable.

B.

Facts

(1)

The Accident

[7]

The accident occurred on Prince of Wales Drive in Ottawa.  Weather
    conditions the day of the accident were poor.  The road was icy and slippery.

[8]

El Dali and Panjalingam were travelling in opposite directions towards
    one another.  El Dali was driving at about 10-20 kilometres per hour.  From about
    300 to 500 feet away, El Deli saw Panjalingam lose control of his car and cross
    the centre line of the road.  El Dali pulled over to the right side of the road
    and stopped  seemingly a prudent thing to do.  Still, Panjalingams car struck
    El Dalis car.  El Dali sustained injuries to his shoulders and knees.

[9]

A police officer was called to the scene of the accident.  She spoke to
    both drivers.  At trial, she testified that Panjalingam admitted losing control
    of his car.  She also testified that he was not impaired.  She decided not to
    lay charges under the
Highway Traffic Act
, R.S.O. 1990, c. H.8, due
    to poor road conditions.

(2)

The Trial

[10]

The
    trial took four weeks.  Panjalingam did not testify and the defence called no
    other evidence to explain his driving.

[11]

In
    closing submissions, counsel for El Dali argued that Panjalingam was 100 per
    cent at fault for the accident.  In her closing submissions, Panjalingams
    counsel implicitly acknowledged that her clients negligence at least
    contributed to the accident:

When you are given the questions by His Honour to answer  and
    there will be 10 questions  we ask that you say the following: Responsibility
    for this action is shared between the plaintiff and the defendant.

The defendant did lose control of his vehicle on an icy road so
    he may be partially responsible, but Mr. El Dali was not travelling fast, he
    saw the object or vehicle from 300 to 500 feet away and took no steps to avoid
    the collision[Mr. El Dali] is at least 50% responsible for this accident.

[12]

Instead
    of arguing that Panjalingam was not negligent, she emphasized that El Dali
    could have taken steps to avoid the accident, and urged the jury to find her
    client only 50 per cent at fault.

[13]

The
    first question the jury was asked to decide was the following:

Was there any negligence on the part of the defendant,
    Pauchanathan Panjalingam, which caused or contributed to the motor vehicle accident
    on December 11, 2005?

[14]

The
    jury answered No.

C.

analysis

(3)

The Applicable Standard of Review

[15]

The
    standard of appellate review of a civil jury verdict is well established.   Where
    the trial judges charge is fair and accurate, the jurys verdict will be set
    aside only where it is so plainly unreasonable and unjust as to satisfy the Court
    that no jury reviewing the evidence as a whole and acting judicially could have
    reached it:
McCannell v. McLean
, [1937] S.C.R. 341, at p. 343.

[16]

Although
    the standard requires appellate courts to treat jury verdicts deferentially, it
    does not require that they treat them with awe:
Olmstead v. Vancouver-Fraser
    Park District
, [1975] 2 S.C.R. 831, at p. 839.  Juries are not infallible.
     Occasionally they make mistakes.  When they do, an appellate court should
    intervene.  This is one of those cases where appellate intervention is called
    for.

(4)

The Jurys Verdict on Liability Was Unreasonable

[17]

By
    crossing the centre line of the road, Panjalingam breached s. 148(1) of the
Highway
    Traffic Act
, which provides:

Every person in charge of a vehicle on a highway
    meeting another vehicle shall turn out to the right from the centre of the
    roadway, allowing the other vehicle one-half of the roadway free.

[18]

When
    a driver breaches s. 148(1) and an accident occurs, the driver is held to be
prima
    facie
negligent.  The driver then bears the onus of explaining that the
    accident could not have been avoided by the exercise of reasonable care.  Charron
    J.A. set out this proposition in
Levesque v. Levesque
(2001), 151
    O.A.C. 227, at para. 6:

It is my view that the overwhelming weight of the evidence
    established that the respondent, at the time of the collision, did not leave
    one-half of the road clear for the appellants vehicle, as he was required to
    do pursuant to the Highway Traffic Act, R.S.O. 1990, c. H-8, ss. 148 and 149.
    Hence, on this circumstance alone, a prima facie case of negligence was made
    out, and it became incumbent upon the respondent to explain that the accident
    could not have been avoided by the exercise of reasonable care. [Citations
    omitted.]

[19]

The
    explanation need not come from the defendant driver, but it must come from
    someone.  Otherwise, the defendant will be found negligent and at least partly
    responsible for the accident.

[20]

Further,
    as Cory J.A. explained in
Graham v. Hodgkinson
(1983), 40 O.R. (2d)
    697 (C.A.), at p. 703, where the situation (such as driving on the wrong side
    of the road) necessarily calls for an explanation by a party and that partys
    explanation fails to demonstrate that he was not acting in a negligent manner,
    a jurys verdict that the party was not negligent may be set aside as
    unreasonable.

[21]

That
    is precisely this case.

[22]

We
    have no explanation for Panjalingams driving.  We have no evidence about why
    he crossed the centre line and struck El Delis car when it was parked on the
    side of the road; no evidence about Panjalingams driving before he lost
    control of his car; no evidence about what caused him to lose control of his
    car; no evidence about what rate of speed he was driving; and no evidence about
    whether he took any steps to avoid the accident, and if so what they were.
    Absent any explanation, the jurys verdict that no negligence on the part of
    Panjalingam contributed to or caused the accident was unreasonable. That it was
    unreasonable is supported by defence counsels closing submission in which she
    asked the jury to find Panjalingam only 50 per cent at fault. Although not
    binding on the jury, defence counsels assessment of the record strongly
    suggests that the jurys verdict was unreasonable.

[23]

I
    expect the jury may have concluded that the accident was unavoidable and not
    due to Panjalingams negligence, perhaps relying on the police officers
    evidence and the condition of the road. If so, the jurys conclusion is
    unsupportable and amounts to nothing more than speculation.

[24]

The
    officer did not witness the accident.  Moreover, she was investigating whether
    a
Highway Traffic Act
charge should be laid, not whether Panjalingam
    was negligent.  That she exercised her discretion not to lay a charge has no
    bearing on whether Panjalingam drove his car with reasonable care.  And
    whatever statement she took from Panjalingam about his driving was not tendered
    in evidence.

[25]

The
    poor driving conditions do not support the jurys verdict.  The mere slippery
    or icy condition of a road does not permit a trier of fact to infer that an
    accident was unavoidable and not caused by a drivers negligence.  Rutherford
    J. made this point in
Rydzik v. Edwards
(1982), 38 O.R. (2d) 486
    (H.C.J.), at p. 489, relying on the Supreme Court of Canadas judgment in
Gauthier
    & Co. v. The King
, [1945] S.C.R. 143:

It was said in Gauthier by Kellock J. at pp. 55-58 D.L.R.:

Skidding of a vehicle on the highway by itself is a neutral
    fact, equally consistent with negligence or no negligence.

When the onus of explanation lies on the defendants by the
    application of the breach of a statutory duty, an explanation that the accident
    occurred from skidding upon an icy roadway is not a sufficient explanation
    because of this neutrality, or in the context of the Gauthier case, at p. 56
    D.L.R.:

Accordingly, for the respondent [The King] in the
    circumstances of this case to go no farther than to show that the accident was
    occasioned by the skidding of the [vehicle], was not to show a way in which
    the accident may have occurred without negligence

[26]

In
    the case before us, that El Dali was able to control his own car is some evidence
    that the road conditions alone did not disprove negligence on Panjalingams
    part or point to unavoidable accident.

[27]

Before
    concluding, I will briefly address the Supreme Court of Canadas decision in
Fontaine
    v. British Columbia,
[1998] 1 S.C.R. 424, which the respondents relied on
    heavily.  They submit that
Fontaine
precludes this court from finding
    a
prima facie
case of negligence where a car has crossed the centre
    line of a road.  I disagree.

[28]

Fontaine
marked the end of
res ipsa loquitur
in Canadian law.  The maxim r
es
    ipsa loquitur
 the thing speaks for itself  in some circumstances
    permitted a court to infer that a defendants negligence caused an accident in
    the absence of an explanation from that defendant.  Even where the plaintiff
    had no direct or positive evidence to prove the defendants negligent, the
    plaintiff could lead circumstantial evidence to raise a
prima facie
case for the defendant to answer.

[29]

In
Fontaine
, Major J. wrote at para. 27, [t]hat the law would be better
    served if the maxim was treated as expired...  Instead, the trier of fact
    should simply weigh the direct and circumstantial evidence to determine whether
    the plaintiff has established, on a balance of probability, a
prima facie
case of negligence against the defendant.  If the plaintiff has done so, then
    the defendant must lead evidence to negate the evidence of the plaintiff.  If
    the defendant does not do so, the plaintiff will succeed.

[30]

Fontaine
does not assist the respondents.  El Dali does not rely on
res ipsa
    loquitur
.  The appellant led direct evidence that Panjalingam crossed the
    centre line and struck El Dalis car after it was stopped.  This courts
    decision in
Levesque
, which was decided after
Fontaine
, holds
    that evidence of this sort establishes a
prima facie
case of
    negligence.  As Panjalingam did not negate this evidence, he must be found
    negligent.  The jurys verdict holding otherwise is unreasonable.

[31]

For
    these reasons, I conclude that the jurys verdict on liability was unreasonable.
    It is therefore not necessary to deal with the appellants second ground of
    appeal concerning the trial judges charge to the jury.  In a civil case, an appellate
    court may order a new trial where there has been a substantial wrong or
    miscarriage of justice has occurred:
Courts of Justice Act
, R.S.O.
    1990, c. C.43, s. 134(6).  The judgment dismissing this action was unjust in the
    light of the jurys unsupported finding that Panjalingam was not negligent.  I
    would therefore order a new trial on the issue of liability only.

D.

conclusion

[32]

I
    would allow the appeal, set aside the judgment at trial, and order a new trial
    on liability only. The parties may make brief written submissions on the costs
    of the appeal and the trial within two weeks of the release of these reasons.

Released: Jan. 18, 2013                               John
    Laskin J.A.

JL                                                                     I
    agree J.C. MacPherson J.A.

I
    agree E.E. Gillese J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:

Fifth Third
    Bank v. O'Brien, 2013 ONCA 5

DATE: 20130110

DOCKET: C55094

MacPherson, Cronk and Lauwers JJ.A.

BETWEEN

Fifth Third Bank

Plaintiff (Respondent)

and

Ronald Edward OBrien,
Paul Gustav Morton

and
Cinitel Corp.

Defendants (Appellants)

Robert D. Malen and Robert J. Drake, for the appellants

Douglas O. Smith and Caitlin R. Sainsbury, for the
    respondent

Heard: January 7, 2013

On appeal from the judgment of Justice Michael A. Penny of
    the Superior Court of Justice, dated August 10, 2011.

BY THE COURT:

I.        Background

[1]

The appellants, Paul Gustav Morton (Morton) and Cinitel Corp.
    (Cinitel), guaranteed loan facilities provided by the respondent, Fifth Third
    Bank (the Bank), to MPI Packaging Inc. (MPI).  Following default by MPI on
    its loan obligations, the Bank obtained a court order appointing a receiver.
    With court approval, the receiver sold MPIs assets and remitted the net
    proceeds to the Bank.  The Bank also made demand on the appellants guarantees
    and sued Morton and Cinitel for satisfaction of the shortfall between the
    amounts recovered by the receiver and the amount of MPIs indebtedness to the
    Bank.

[2]

By judgment dated August 10, 2011, M. A. Penny J. of the Superior Court
    of Justice granted summary judgment in favour of the Bank in the amounts of
    $5,406,484.74 (CDN) and $10,238.15 (USD), plus costs in the amount of
    $150,000.  Morton and Cinitel appeal from that judgment.

[3]

On appeal, the appellants renew their arguments, advanced before the
    motion judge, that: (1) the Bank failed to act in a commercially reasonable
    manner in its dealings with its security by failing to allow the sale of MPI as
    a going concern; and (2) after the date of their guarantees, material
    alterations or variations in the terms of MPIs loan facilities were made as
    between the Bank and MPI without Morton and Cinitels consent, thereby
    discharging their liabilities under the guarantees.

[4]

For the reasons that follow, we conclude that the appeal must be
    dismissed.

II.       Discussion

[5]

Although the appellants submit that summary judgment was not available
    in this case, they advance virtually no argument and provide essentially no
    particulars in support of this submission.  Further, there is no suggestion
    that the motion judge failed to appreciate the applicable test for granting
    summary judgment.

[6]

The motion judges reasons regarding liability are considered and
    thorough, spanning some 58 pages.  The reasons indicate that the record
    permitted him to have a full appreciation of the issues and the evidence required
    to make dispositive findings by way of summary judgment.  In particular, the
    reasons confirm that the motion judge addressed, directly and in detail, both
    grounds of appeal now raised by the appellants in light of the evidentiary
    record before him.

[7]

We have no hesitation in concluding that the motion judge was
    well-positioned to determine the Banks summary judgment motion on the merits,
    without the necessity of a trial, and that he properly applied the governing
    summary judgment test: see
Combined Air Mechanical Services Inc. v. Flesch
,
    2011 ONCA 764, 108 O.R. (3d) 1, leave to appeal to S.C.C. granted, [2012]
    S.C.C.A. No. 48.

[8]

Moreover, the motion judges key findings are dispositive of this
    appeal.  He held that: (1) the Bank absent express contractual obligations to
    the contrary or equitable principles...has no duty to forbear from calling its
    loans when it has the legal right to do so; (2) the appellants complaints, at
    heart, constituted a collateral attack on the Banks decision to seek the
    appointment of a receiver, rather than continue to extend credit to MPI while
    efforts were undertaken to sell it as a going concern; and (3) the relevant contractual
    arrangements did not oblige the Bank to continue to extend credit to MPI during
    the attempted sale process.

[9]

We agree with these findings, which are amply supported by the record.
    They ground the motion judges holding that the Banks conduct in realizing on
    its security was not commercially unreasonable in the circumstances.  We note
    that, before this court, there is no direct attack on the commercial
    reasonableness of the Banks actual realization on its security, as effected by
    the court-appointed receiver and eventually approved by the court.

[10]

Given
    our conclusion that the motion judges findings regarding the commercial
    reasonableness of the Banks conduct are sustainable, it follows that it is
    unnecessary to address the appellants additional argument that the motion
    judge erred in his interpretation of the guarantees by holding that, in any
    event, the Bank had contracted out of its common law obligation to conduct any
    realization on its collateral in a commercially reasonable manner.

[11]

That
    said, we appreciate that the appellants argue that the Bank had a discrete
    obligation to them, as guarantors, distinct from its obligations to MPI, to
    protect and preserve MPIs assets.  This obligation, they say, required that
    the Bank continue to forbear on the enforcement of its security and to advance
    credit to MPI until it was sold as a going concern.  In the circumstances of
    this case, we disagree.

[12]

The
    motion judge considered and rejected this argument, stating:

I do not think the concept of commercial
    reasonableness can or should be extended beyond collateral realization.  It
    cannot be made to apply to the ability of the lender to insist on the debtors
    strict compliance with its obligations to the [Bank] under the agreements
    between them.

I agree with the [Bank] that to extend the duty of
    the [Bank] to act in a commercially reasonable manner when selling the debtors
    collateral to the [Banks] decision to rely on its contractual rights when
    making decisions
whether
to extend or
whether
to continue to
    extend credit, would be a fundamental change in the law and have a chilling
    effect [on] the willingness of financial institutions to extend credit.  In any
    event, I do not understand how reliance on strict legal rights in the context
    of commercial lending between sophisticated parties who have been represented
    by counsel, absent intervening principles of equity such [as] estoppel and the
    like, could be regarded as commercially  unreasonable.  That is what the
    parties bargained for.

[13]

We
    agree.  There was no requirement here that the Bank continue to extend credit
    to MPI, thereby increasing the Banks exposure on its credit facilities, when
    its loan agreements with MPI had expired and MPIs indebtedness to the Bank
    remained unpaid.

[14]

We
    note that, unlike
Bank of Montreal v. Wilder
, [1986] 2 S.C.R. 551 and
    related authorities relied on by the appellants, no agreement was concluded in
    this case with the Bank whereby the Bank agreed to continue to finance MPI
    while efforts were undertaken to dispose of MPI as a going concern.

[15]

Nor,
    in our opinion, is this case analogous to
Moase Produce Limited v. Royal
    Bank
, (1986) 59 Nfld. & P.E.I.R. 168 (P.E.I.S.C.  Gen. Div.),
    additional reasons at 66 Nfld. & P.E.I.R. 196 or
Bauer v. Bank of
    Montreal
, [1980] 2 S.C.R. 102.

[16]

In
Moase
, it was held that the defendant bank had misled the corporate
    debtor into believing that it had accepted a reorganization plan for the debtor
    at a time when, unbeknownst to the debtor, the bank was secretly planning a
    receivership.  That is not this case.  Again, there was no agreement or
    representation by the Bank in this case that it would continue to support MPI
    financially while sale efforts were undertaken.  Further, unlike the situation
    in
Bauer
, there is no suggestion here that the Bank would have been
    unable, by reason of its conduct, to deliver its security to the appellants
    prior to the receivers disposition of MPIs assets had the appellants paid
    MPIs debt to the Bank.

[17]

Finally,
    the motion judge held that the material variation rule discussed in
Holmes
    v. Brunskill
, [1987] 3 Q.B.D. 495

and
Manulife Bank of Canada
    v. Conlin
, [1996] 3 S.C.R. 415 does not apply here as the changes made to
    MPIs loan facilities were authorized by the principal loan agreements and
    guarantees.  Having reviewed the agreements in question, we see no basis on
    which to interfere with this holding.

[18]

This
    is not a case where the guarantors were uninvolved in the efforts to
    resuscitate and sell MPIs business.  Nor were they unaware of the Banks
    contractual arrangements with MPI or the terms of the guarantees.  On the
    contrary, the guarantors were intimately involved throughout.  The forbearance
    offered by the Bank after the expiry of MPIs credit facilities clearly
    benefitted the guarantors as it staved off the commencement of enforcement
    measures by the Bank and prevented, at least for a time, MPIs collapse and
    calls on the guarantees.

[19]

We
    therefore agree with the motion judge that there is no genuine issue requiring
    a trial with respect to the commercial reasonableness of the Banks dealings
    with its collateral or the appellants liability under the terms of their
    guarantees.

III.      Disposition

[20]

The
    appeal is dismissed.  The Bank is entitled to its costs of the appeal, on the
    substantial indemnity scale as agreed by the parties in the relevant guarantees.
    We fix those costs in the amount of $24,000, inclusive of disbursements and all
    applicable taxes.

Released:

JCM                                                J.C.
    MacPherson J.A.

JAN 10 2013                          E.A. Cronk J.A.

P. Lauwers
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Fletcher v. Bullock, 2013
    ONCA 12

DATE: 20130111

DOCKET: C55723

MacPherson, Cronk and Lauwers JJ.A.

BETWEEN

Linda Fletcher

Applicant (Appellant)

and

Juliana Bullock as Estate Trustee during
    Litigation for the Estate of Benjamin Bob Bullock, deceased, The Public
    Guardian and Trustee and Juliana Bullock (formerly Matychuk)

Respondent (Respondent)

Richard Anka, Q.C., for the appellant

John Kranjc, for the respondent

Heard and released orally: January 9, 2013

On appeal from the order of Justice Alan C. R. Whitten of
    the Superior Court of Justice, dated June 12, 2012.

ENDORSEMENT

[1]

The appellant Linda Fletcher appeals from the Order of Whitten J. of the
    Superior Court of Justice dated June 12, 2012 granting summary judgment and
    dismissing the appellants application for guardianship of her father, and
    awarding costs to the respondent Juliana Bullock of $56,234.45 on a substantial
    indemnity basis.

[2]

The appellant appeals on two grounds.

[3]

First, the appellant submits that the motion judge erred by proceeding
    with the motion hearing in the absence of the appellants counsel.

[4]

We disagree. There is an important contextual fact at play here: the
    subject of the appellants guardianship application  her father  died more
    than 14 months before the motion hearing. The application was, therefore, as
    the motion judge stated, moot. In any event, it is clear that the court
    administration in Hamilton took appropriate steps to inform the appellants
    counsel of the hearing and that appellants counsel, a sole practitioner, did
    not have a proper office system in place to ensure that he became aware of the
    hearing.

[5]

Second, the appellant contends that the costs award against her was
    excessive and that the scale of costs  substantial indemnity  was
    inappropriate.

[6]

We disagree. The motion judge provided full reasons for both the scale
    and amount of his costs award. We see no error in principle in his award nor is
    it plainly wrong. Accordingly, we see no basis for interfering with this discretionary
    award.

[7]

The appeal is dismissed. The respondent is entitled to her costs of the
    appeal fixed at $3250 inclusive of disbursements and applicable taxes.

J.C.
    MacPherson J.A.

E.A. Cronk
    J.A.

P. Lauwers
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Haliburton
    (County) v. Gillespie, 2013 ONCA 40

DATE: 20130125

DOCKET: C54563

Goudge, Sharpe and Gillese JJ.A.

BETWEEN

The Corporation of the County of
    Haliburton

Respondent

and

David L. Gillespie

Appellant

Tyler Hodgson, for the appellant

Neil Abbott and Sirpal Randhawa, for the respondent

Heard: November 16, 2012

On appeal from the judgment of Justice Lorne E. Chester
    of the Ontario Court of Justice, dated September 8, 2011, allowing an appeal
    from the judgment of Justice of the Peace D. Jackson, dated January 6, 2011.

Sharpe
    J.A.:

[1]

While driving an all-terrain vehicle (ATV), the appellant, David L.
    Gillespie, was stopped at a
RIDE
program within the boundaries of the
    common area of Harcourt Park.

[2]

He was charged with contravening s. 19(1) of the
Off-Road Vehicles
    Act
, R.S.O. 1990, c. O.4, which makes it an offence to drive or ride an
    off-road vehicle without wearing a helmet.

[3]

The issue on this appeal is whether the appellant, as a lessee and
    member of Harcourt Park, is an occupier of the land comprising the common
    area of Harcourt Park and therefore exempt from the ordinary obligation imposed
    on the operator of an ATV to wear a helmet pursuant to s. 19(2) of the
Off-Road
    Vehicles Act
.

[4]

Harcourt Park, a 7000-acre parcel of land in the County of Haliburton,
    is owned by Harcourt Park Inc. (the Corporation), a non-share capital
    corporation. Harcourt Park is private property to which the public is not
    permitted entry except on invitation from a leaseholder. The Corporation leases
    582 half-acre, individual, lake-front parcels to leaseholders, including the
    appellant, who are also members of the Corporation. Some parcels are combined
    and there are approximately 540 lessees. As a lessee, the appellant enjoys
    exclusive possession of his own parcel and shares with the other leaseholders
    the right to use the common area of Harcourt Park.

[5]

The appellant was acquitted by the Justice of Peace who found that the
    appellant was an occupier of the common area of Harcourt Park for the purposes
    of the
Off-Road Vehicles Act
. On appeal to the Ontario Court of
    Justice, the appeal judge disagreed and found that the Corporation, not the
    individual lessees, has responsibility and control over the common area and that
    the appellant was not an occupier and therefore not exempt from the
    provisions of the
Off-Road Vehicles Act.
The appeal judge entered a
    conviction and imposed a suspended sentence. The appellant appeals to this
    court with leave. For the following reasons, I would dismiss the appeal and
    uphold the conviction.

FACTS

[6]

Harcourt Park contains 45 km of private roads intended for the use of
    the lessees and their invitees. Harcourt Park is private property and routine
    government and municipal services such as road maintenance, snow clearance,
    mail delivery, and garbage collection are not available. Signs at the only two
    entrances to Harcourt Park from public roads are marked: Harcourt Park
    Incorporated. Private Property. No Trespassing. Private Drive. Trespassers will
    be prosecuted. No Exit.

[7]

The 582 individual leased parcels comprise about 4% of the total area of
    Harcourt Park. Lessees, who are also members of the non-share capital
    Corporation, have exclusive possession of their leased parcels and access to
    the common area for recreational activities including fishing, hiking, skiing
    and snowmobiling. Lessees pay an annual fee for the upkeep of the common area
    and routinely volunteer to perform maintenance work.

[8]

The Corporations by-laws, approved by the membership at an annual
    general meeting, regulate the activities permitted in the common area. The by-laws
    provide that to enter Harcourt Park, a non-member must be invited by a member.
    Members are permitted to invite two guests at any one time. Guests are required
    to carry guest cards and the by-laws stipulate that members are responsible to
    ensure that their guests comply with the by-laws. It is the practice for
    members to escort uninvited non-guests to the property line. Two members are
    employed as part-time security officers to enforce the by-laws and escort
    trespassers from the property.

[9]

In the belief that some provincial legislation, including the
Off-Road
    Vehicles Act
, does not apply within the property, the Corporation enacted
    by-laws mimicking that and other legislation. By-law 48 provides that off-road
    vehicles must be operated as required by the
Off-Road Vehicles Act
and
    specifically requires the driver of such vehicles to wear a helmet.

LEGISLATION

[10]

The
    offence and exemption at issue on this appeal are found in s. 19 of the
Off-Road
    Vehicles Act
:

19
(1)
    No person shall drive an off-road vehicle or ride on an off-road vehicle or on
    a conveyance towed by an off-road vehicle unless he or she is wearing a helmet
    that complies with the regulations, securely fastened under his or her chin
    with a chin strap.

(2)This section does not apply to a person driving or
    riding on an off-road vehicle or on a conveyance towed by an off-road vehicle
    where the owner of the off-road vehicle is the occupier of the land.

[11]

Occupier
    is defined in s. 1:

occupier includes,

(a) a person who is in physical possession of the
    land, or

(b) a person who has responsibility for and
    control over the condition of land or the activities there carried on, or
    control over persons allowed to enter the land,

even if there is more than one occupier of the same
    land; (occupant)

[12]

The
    French version of the definition is:

«occupant» Sentend de :

a) celui qui a la possession
    matérielle du bien-fonds;

b) celui qui a la responsabilité
    et la surveillance de létat du bien-fonds, des activités qui y sont exercées
    ou le contrôle des personnes admises à pénétrer sur le bien-fonds,

peu importe quil y ait plus dun
    occupant sur le même bien-fonds.
(«occupier»)

[13]

The
    same or virtually the same definition of occupier is found in the
Occupiers
    Liability Act
, R.S.O. 1990, c. O.2, s. 1 and the
Trespass to Property
    Act
, R.S.O. 1990, c. T.21, s. 1:

occupier includes,

(a) a person who is in physical possession of
    premises, or

(b) a person who has responsibility for and
    control over the condition of premises or the activities there carried on, or
    control over persons allowed to enter the premises,

despite the fact that there is more than one
    occupier of the same premises; (occupant) [
The Trespass to Property Act
provides even if there is more than one occupier of the same premises.]

JUDICIAL HISTORY

Trial before the Justice of
    the Peace

[14]

The
    Justice of the Peace found that Harcourt Park was private property not
    accessible to the general public. As the Corporation is the occupier of the
    common area, it followed that as a member of the Corporation, the appellant was
    an occupier of the common area and therefore exempt from the helmet
    requirement.

Appeal to the Ontario Court
    of Justice

[15]

The
    appeal judge rejected the submission that as the Corporation owns and controls
    the use of the common areas and as the members control the Corporation, it
    follows that a member meets the definition of occupier. The appeal judge
    applied the well-established principle that a corporation is distinct from its
    members or shareholders. He held that as one of the lessee-members, the
    appellant did not have physical possession or control for the purposes of the
    statutory definition. It is the Corporation, and not its individual members, that
    has responsibility for and control over the condition of the land constituted
    by the common areas.

ANALYIS

Principles of Statutory Interpretation

[16]

This case poses a question of statutory interpretation. In
Bell
    ExpressVu Limited Partnership v. Rex
, [2002] 2 S.C.R.
    559, 2002 SCC 42, at paras. 26 and 27, the Supreme Court of Canada set out the
    preferred approach, derived from
Elmer Driedgers definitive
    formulation, found at p. 87 of his
Construction of Statutes
(2nd ed.
    1983): Today there is only one principle or approach, namely, the words of an
    Act are to be read in their entire context and in their grammatical and
    ordinary sense harmoniously with the scheme of the Act, the object of the Act,
    and the intention of Parliament. The preferred approach is buttressed by
    the
Legislation Act, 2006
, S.O. 2006, c.21, Schedule F, s. 64(1),
    which provides that every enactment
shall be interpreted as being remedial and shall be given such
    fair, large and liberal interpretation as best ensures the attainment of its
    objects.

[17]

The
    preferred approach also recognizes the important role that context must
    inevitably play when a court construes the written words of a statute and
    stipulates that where the provision under consideration is found in an Act
    that is itself a component of a larger statutory scheme, the surroundings that
    colour the words and the scheme of the Act are more expansive:
Bell
    ExpressVu
,

at para. 27.

This gives rise to what was
    described in
R. v. Ulybel Enterprises Ltd.
, [2001] 2 S.C.R. 867, 2001
    SCC 56, at para. 52, as the principle of interpretation that presumes a
    harmony, coherence, and consistency between statutes dealing with the same
    subject matter.

[18]

I
    note here that there appear to be no cases interpreting the definition of
    occupier in the
Off-Road Vehicles Act
, but several cases dealing
    with the definition under the
Occupiers Liability Act
.

Interpreting occupier in the
Off-Road
    Vehicles Act

[19]

I
    begin with an assessment of the
Off-Road Vehicles Act
as a whole. The
    Act contains various provisions for licensing and identifying the owners of
    off-road vehicles and making owners responsible for damage caused by their
    vehicles. The Act requires drivers of off-road vehicles to have a permit (s. 3)
    and provides for number plates on such vehicles (s. 5(3)). Drivers of off-road
    vehicles must be insured (s. 15) and the owner of an off-road vehicle is
    jointly and severally liable for any damages caused by a non-owner driver (s.
    12). Similarly, the owner may be charged and convicted of any offense for which
    the driver is liable (s. 14). Other provisions relate to records (s. 5(6)),
    regulations regarding permits and permit numbers (s. 5(7)), change of ownership
    (s. 8) and address (s. 6(2)), and uses and display of permits (ss. 7, 8, 10,
    11).

[20]

Certain
    provisions, including the helmet requirement at issue on this appeal, relate to
    public safety. These include the mandatory insurance requirement, which
    protects injured persons as well as owners of property damaged. Other public
    safety provisions are the offence of careless driving (s. 16) and the minimum
    age of 12 for drivers (s. 4).

[21]

Where
    an off-road vehicle is used on land occupied by the owner of the vehicle, the
    following requirements imposed on owners and drivers of off-road vehicles do
    not apply: the need for a permit (s. 3(3)); the minimum age of 12 for drivers
    (s. 4(2)); the mandatory insurance requirement (s. 15(9)); and the mandatory
    helmet requirement (s. 19(2)).

[22]

The
Off-Road Vehicles Act
would appear to have a two purposes or objects:
    first, the identification and control of such vehicles; and second, public
    safety. We were provided with the Ministers statement when introducing the
Off-Road
    Vehicles Act
in the legislature in 1983: Ontario, Legislative Assembly,
Official
    Report of Debates (Hansard),
32nd Parl, 3rd Sess, Vol. 2, (7 June 1983), at
    p. 1455 (James Snow). The Minister summarized the intention of the bill as
    being to encourage the safe driving of these vehicles and provide a method of
    control and identification. The Minister indicated that municipalities had
    urged the adoption of provincial licensing and regulation of such vehicles to
    allow for the identification of drivers and control of damage to public
    property.

[23]

I
    turn to the specific provision that concerns us on this appeal, namely, the
    definition of occupier. Under the statutory definition, there are four ways a
    person can be an occupier:

1.

be in physical
    possession of the land;

2.

be responsible
    for and have control over the condition of the land;

3.

be responsible
    for and have control over the activities there carried on; or

4.

have control
    over persons allowed to enter the land.

See
Moody v. Toronto (City)
(1996), 31 O.R.
    (3d) 53 (Gen. Div.) and
Lemieux v. Porcupine

Snowmobile Club of
    Timmins Inc.
(1999), 120 O.A.C. 292 (C.A.); both cases deal with the
Occupiers
    Liability Act
and adopt this four-part classification.

[24]

The
    appellant concedes that he does not qualify as an occupier as a person who
    is in physical possession of the land.

[25]

His
    primary submission is that because only lessees and their guests are allowed on
    the common area, as a lessee, he has control over persons allowed to enter the
    land and thus meets the definition of occupier.

[26]

I
    am unable to accept that submission. The right, shared with other lessees, to
    invite guests to be on the common area does not, on the facts of this case, amount
    to having control over persons allowed to enter the land. When used in
    conjunction with occupier, the word control suggests, at a minimum, the
    capacity to determine who may and who may not be on the property. The appellant
    does not have that capacity in any meaningful sense. There are approximately 540
    lessees, each of whom is entitled to have his or her own family members on the
    common area and to invite two guests at a time to be on the common area. Each
    guest is permitted to include his or her spouse and children. This means that there
    could be thousands of people on the common area. Of that number, the individual
    lessee would control only himself and his two guests. He would have no say whatsoever
    as to the other lessees, their family members, their invitees and the family
    members of their invitees. In my view, that does not amount to having control
    over persons allowed to enter the land.

[27]

The
    appellant also submits that he fits the definition of occupier as he has
    responsibility for and control over the condition of the land or the activities
    there carried on.

[28]

I
    disagree with that submission. It is clear from the record that the legal
    entity that owns and has responsibility for and control over the condition of
    the common area and the activities there carried on is the Corporation. The
    appellant, as a lessee and member of the Corporation, has the right to
    participate in the affairs of the Corporation and to vote on by-laws dealing
    with the condition and maintenance of the common area and the activities
    permitted thereon.  However, as the appeal judge stated, referring to
Salomon
    v. Salomon
, [1897] A.C. 22, a corporation is a separate legal entity
    distinct from the shareholders or members of the corporation and:

It is the corporation through its managers or special guards who
    has control over the conditions of the land and control over the persons
    allowed to enter the lands. It is Harcourt Park Inc., not its members or its
    individual members, who have responsibility for and control over the condition
    of the land.

[29]

I
    will return to this aspect of the definition of occupier when I discuss the
Occupiers
    Liability Act
.

[30]

To
    hold that the appellant is an occupier would, in my opinion, be inconsistent
    with both remedial purposes of the
Off-Road Vehicles Act
. As the
    helmet requirement is one of the provisions that have public safety as their purpose,
    it is appropriate to ask whether that public safety purpose would be fostered
    or frustrated by interpreting occupier as broadly as advocated by the
    appellant. The answer to that question is clear. When driving his ATV on the
    common area, the appellant is on a large tract of land shared with a large
    number of fellow lessees and their guests. His own safety and that of his
    fellow lessees, their families and their guests is at risk. I see no reason to
    grant him an exemption that would require a strained interpretation of the
    definition of occupier. There is a clear public safety interest in requiring
    him to wear a helmet, to be insured and to ensure that drivers of his vehicle
    are over 12 years old.

[31]

I
    reach a similar conclusion when the other purpose of the statute is considered,
    namely to provide for a method of control and identification. The interpretation
    urged by the appellant would exempt him from the obligation to have a permit
    for his ATV when on the common area. The common area is expansive, and a large
    and diffuse group of lessees and invitees are permitted on it. There is every
    reason to insist that drivers of such vehicles should comply with the permit
    requirements to allow for their identification and control.

[32]

I
    add here that it is no answer to say that the Corporation has adopted by-laws
    that mimic the provisions of the
Off-Road Vehicles Act
. The
    Corporation could just as easily repeal those by-laws. Regardless, its members
    do not have a choice whether to abide by the laws of Ontario.

Cases
Interpreting occupier in the
Occupiers
    Liability Act

[33]

My
    conclusion on the interpretation of occupier in the
Off-Road Vehicles Act
is significantly fortified when I consider the need to interpret that
    definition in a manner consistent and harmonious with the use of the virtually
    identical definition in the
Occupiers Liability Act
. Section 3 of that
    statute imposes on occupiers a legal duty to take such care as in all the
    circumstances of the case is reasonable to see that persons entering on the
    premises, and the property brought on the premises by those persons are
    reasonably safe while on the premises. Failure to satisfy that duty will
    result in civil liability to any person who suffers injury as a result.

[34]

Interpreting
    occupier for the purposes of the
Occupiers Liability Act
requires
    the court to consider and weigh competing notions with respect to liability.
    The judge must determine when it is reasonable to impose a duty to those who
    suffer harm while on the property. Given the obligations attached, it is not
    surprising that the courts have consistently held that more than simply the
    right to use the land and the right to invite guests onto the land will be
    required to impose the duty of care of an occupier.

[35]

It
    has been held that having the right to use land does not make a person an
    occupier: see
Davies v. Clarington (Municipality)
(2006), 266 D.L.R.
    (4th) 375 (Ont. S.C.), holding that an adjacent landowner who had a
    right-of-way over the area in question was not an occupier. Several cases regarding
    slip and fall injuries deal with the liability of tenants who enjoy the right
    to use common areas in shopping malls and parking lots. Such tenants often have
    the right to invite patrons to use or park in the common areas and may exercise
    some control over the common areas and the activities carried on there. These
    cases typically turn on the terms of the lease agreements between the mall
    owners and the mall tenants that determine which party has responsibility for
    upkeep, what rights the tenants have to use the common areas, and how many
    other tenants have the right to use or control the use of that space.

[36]

Generally,
    the tenants right to use parts of the common areas (including a parking lot)
    is seen to be separate and distinct from the tenants rights regarding its own
    leased premises. The rights enjoyed in relation to common areas ordinarily do not
    make the tenant an occupier of those areas:
Crisostimo v. Rosenthal
(1988), 65 O.R. (2d) 43 (H. Ct. J.);
Werden v. Windview Investments Inc.
,
    [1995] O.J. No. 4692 (Ont. Ct. Gen. Div.);
Cress v. Beauregard Enterprises
    Ltd.
, [2000] O.J. No. 205 (S.C.). Even where a tenant had assumed enough
    control voluntarily to pay for and organize snow removal, the court did not
    find sufficient evidence of control to make the tenant an occupier:
Crisostimo
.
    The right to have some (although not exclusive) use of the parking lot to allow
    customers of the tenant to park their cars is not sufficient to constitute
    occupation, particularly where there are other tenants who also have the same
    right regarding their customers.

[37]

While
    clearly not on all fours with the facts of this case, these authorities suggest
    that the right to use the land and to invite others to do so will not be
    sufficient to make the right-holder an occupier. While the right to allow
    certain individuals (like guests) onto the land will point somewhat toward
    occupation, if others also have that right then occupation is less likely. Stronger
    control over precisely who is permitted or excluded or over the state of the
    land or the activities carried on there will be required to establish liability
    as an occupier.

CONCLUSION

[38]

Accordingly,
    I conclude that the appellant does not meet the definition of occupier in the
Off-Road Vehicles Act
, when the definition is read in the entire
    context of the Act and the words of the definition are given their grammatical
    and ordinary sense, interpreted harmoniously with the scheme and object of that
    Act, the intention of the legislature, and the other two statutes that employ
    the same language.

[39]

For
    these reasons, I would dismiss the appeal and affirm the decision of the appeal
    judge convicting the appellant.

Robert J. Sharpe
    J.A.

I agree S.T. Goudge
    J.A.

I agree E.E. Gillese
    J.A.

Released:
January 25, 2013


COURT OF APPEAL FOR ONTARIO

CITATION:
Metropolitan
    Toronto Condominium Corporation No. 1352 v.
Newport Beach Development Inc., 2013 ONCA 52

DATE: 20130129

DOCKET: C54462

Winkler C.J.O., Laskin and Watt JJ.A.

BETWEEN

Metropolitan Toronto Condominium Corporation No.
    1352

Plaintiff (Respondent)

and

Newport Beach Development Inc.,
    Canderel Stoneridge Equity Group Inc., Tarion Warranty Corporation
, Enersys
    Engineering Group Inc., Eric Pun a.k.a. E.P.K. Pun and
Salvatore
    Spampinato a.k.a. Sal Spampinato

Defendants (
Appellants/Respondent
)

Irving Marks and Carla Lubell, for the appellants

David Outerbridge, for the respondent Tarion Warranty Corporation

Blaine Fedson, for the respondent Metropolitan Toronto Condominium Corporation No. 1352

Heard: April 2, 2012

On appeal from the order of Justice Katherine B. Corrick
    of the Superior Court of Justice, dated September 16, 2011, with reasons
    reported at 2011 ONSC 5445.

COSTS ENDORSEMENT

[1]

The plaintiff, Metropolitan Toronto Condominium Corporation No. 1352, is
    entitled to its costs of the appeal, but on a partial indemnity basis.  A fair
    and reasonable award is $30,000, inclusive of disbursements and applicable
    taxes.

[2]

In our view, Tarion Warranty Corporation is also entitled to its costs.
    The appellant Newport Beach Development Inc. sought relief against Tarion and
    was unsuccessful.  The amount Tarion requests, in round numbers $11,000,
    inclusive of disbursements and applicable taxes, is reasonable.

Warren K.
    Winkler C.J.O.

John Laskin
    J.A.

David Watt J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Mortazavi v. University of Toronto, 2013 ONCA
66

DATE: 20130130

DOCKET: M41960 (C56058)

Laskin J.A. (In Chambers)

BETWEEN

Houman Mortazavi and Mojgan Yousefi

Plaintiffs (Appellants/Moving Parties)

and

The University of Toronto, Adonis Yatchew, Martin
Osborne, Arthur Hosios, Jon Cohen, Berry Smith, Brian Corman, Heather Kelly,
Elizabeth Smyth, Jane Alderdice, Ralph Scane, Edith Hillan, Jill Matus, Cheryl
Misak, Ellen Hodnett, Angela Hildyard, Hamish Stewart, Joan Foley, and Isfahan
Merali

Defendants (Respondents/Responding Parties)

Houman Mortazavi, acting in person

Mojgan Yousefi, acting in person

Robert A. Centa, for the
responding parties, The University of Toronto, Adonis Yatchew, Martin Osborne,
Arthur Hosios, Jon Cohen, Berry Smith, Brian Corman, Heather Kelly, Elizabeth
Smyth, Jane Alderdice, Ralph Scane, Edith Hillan, Jill Matus, Cheryl Misak,
Ellen Hodnett, Angela Hildyardm, Joan Foley, and Isfahan Merali

Eric S. Baum, for the responding party, Hamish Stewart

Heard: December 4, 2012

On appeal from the order of Justice Edward Belobaba of
the Superior Court of Justice, dated August 27, 2012 and on a motion for an
extension of time to perfect the appeal.

Laskin J.A.:

Overview

[1]

The appellants, Houman Mortazavi and Mojgan Yousefi, were both doctoral
students in the University of Torontos Department of Economics.  They are
married.  Early in their studies, they sought accommodation from the University
when Mortazavis father became ill and they returned to Iran to care for him.
Though some accommodation was made, they received failing grades in five
classes and were required to pay tuition for classes they did not attend.

[2]

They appealed these decisions through three levels of internal academic
appeals.  Their final appeal was dismissed and they were left with two failing
grades.  They did not seek judicial review.  Instead, on May 1, 2012, they filed
a claim against the school and several of its administrators and employees. On
August 27, 2012, the claim was struck by a motion judge under rules 25.06 and
25.11 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194, without
leave to amend.

[3]

On September 27, 2012, the appellants filed a notice of appeal of the
motion judges decision.  However, they have not yet perfected their appeal.
They now seek an extension of time to do so.   In this case, whether that extension
should be granted depends on whether the appeal has any merit.

A.

Facts

(1)

Background

[4]

The appellants were admitted to the Ph.D. program in Economics for the
2007-2008 academic year.  Shortly after they were admitted, Mortazavis father,
who lived in Iran, became seriously ill.  They returned to Iran to care for
him, and contacted the University to request a one-year deferral.  The
appellants say that their request was initially denied, and that they were told
to re-apply to the program, without a guarantee of re-admission.

[5]

The appellants then say that, after some back-and-forth with the
University, only Yousefis deferral was approved.  Mortazavis deferral was
still declined.  Finally, according to the appellants, they incurred
approximately $5,000 to fly back to Canada to resolve the status of their
registration.  Upon attending at the graduate directors office in person, they
say they were granted a deferral in less than 3 minutes.

[6]

In the fall of 2008, the appellants began their studies. According to
the appellants, the financial terms of their new offer of admission were varied
from the previous year.  For example, they say that an entrance award due to
each of the appellants in the amount of $5,000 had been retracted.
Nonetheless, they attended classes throughout September.

[7]

Then, in early October 2008, Mortazavi and Yousefi learned that
Mortzavais fathers illness had suddenly progressed.  They flew back to Iran
to care for him.  During October and November, they exchanged a series of
emails with the graduate director about potential accommodations.  The appellants
eventually requested a leave of absence for the fall 2008 term.

[8]

The University says there was confusion over what period of time the
leave of absence would apply to, and the request was eventually cancelled; the
appellants say it was arbitrarily refused.  Ultimately, the appellants did not
attend any more classes or take exams during the fall 2008 term.  As a result,
they received three failing grades.

[9]

The appellants returned to the program for the winter 2009 term with a
modified schedule to reflect the classes they had missed in the fall.  They
attended classes and completed some assignments.  Then, in March 2009, Mortazavis
father died.  Both Mortazavi and Yousefi returned to Iran to make funeral
arrangements.

[10]

The
appellants did not return to classes, and they did not sit their exams in April
2009.  As a result, they received two more failing grades.  The appellants say that
they gave notice of Mortazavis fathers death to the University.  The
University says the appellants did not communicate with the school until May
2009, when the appellants were informed that the Department would be seeking to
terminate their registration.

[11]

During
the summer and fall of 2009, the appellants and the Department continued to
negotiate about the terms of the appellants studies.  The appellants were
permitted to audit three courses in the fall 2009 term and to write two exams,
despite not being formally registered and not having paid tuition.  However,
their exams were not graded.

[12]

The
appellants eventually appealed their academic record to the Graduate Department
Academic Appeals Committee (GDAAC), which unanimously dismissed the appeal.
They next appealed that decision to the Graduate Academic Appeals Board (GAAB),
which directed that the three failing grades in the fall 2008 semester be
marked as withdrawals and recommended that the fees attributable to that term
be waived.  The three grades were changed; however, the school declined to
follow the GAABs recommendation on the fees.

[13]

In
early 2012, the appellants appealed the decision of the GAAB to the Academic
Appeals Committee (AAC).  They submitted, among other things, that the GAAB
should have ordered that their two winter 2009 failing grades be marked
withdrawn and that their two fall 2009 tests be graded.   Those appeals were
dismissed.  The appellants were therefore left with two failing grades from the
winter 2009 term.

[14]

The
record is unclear on which fees have been paid by the appellants to the
University and which scholarships and disbursements have been paid by the
University to the appellants.  The appellants appear to owe the University
arrears for unpaid tuition from the fall of 2008, plus accumulated interest.
They say the University unfairly forwarded their debts to a collection agency
during the appeals process.  As a consequence of their lapsed status as
students, the appellants have also lost their employment as teaching
assistants.

(2)

The Appellants Allegations

[15]

As
I said, instead of seeking judicial review, the appellants filed a statement of
claim against the University of Toronto; the Dean of the School of Graduate
Studies (SGS) (Brian Corman); two Vice-Deans of the SGS (Berry Smith and
Elizabeth Smyth); two directors of the SGS (Jane Alderdice and Heather Kelly); three
professors in the Department of Economics (Arthur Hosios, Adonis Yatchew, and
Martin Osborne); two vice-provosts of the University (Edith Hillan and Jill
Matus); two vice-presidents of the University (Cheryl Misak and Angela Hildyard);
the chair of the Academic Board (Ellen Hodnett); the chair of the GDAAC (Jon
Cohen); the chair of the GAAB (Ralph Scane); the chair of the AAC (Hamish
Stewart); the University Ombudsperson (Jane Foley); and the manager of the
Anti-Racism and Cultural Diversity Office at the University (Isfahan Merali).

[16]

The
statement of claim is 187 pages.  The appellants seek approximately 80 million
dollars.  For the purpose of this motion, I rely on the appellants listed claims
at p. 5 of their statement of claim.  The allegations can be grouped in the
following way:

1.

Collective agreement claims arising from the appellants employment as
teaching assistants (only against the University);

2.

Breach of the appellants ss. 2(b), 2(d), 7, 12, and 15 rights under the
Canadian Charter of Rights and Freedoms
and breach of the appellants
rights under the
Canadian Human Rights Act
and the
Canada Labour
Code
;

3.

Violations of procedural fairness and natural justice (including the
creation of a capricious and prejudicial complaint process, abuse of
procedure, and bias);

4.

Conspiracy to injure;

5.

Misfeasance in public office;

6.

Breach of fiduciary duty;

7.

Negligence;

8.

Breach of contract;

9.

Various intentional torts.

[17]

The
University defendants and Professor Hamish Stewart, who is represented by
separate counsel, moved to strike the statement of claim under Rules 21 and 25.

(3)

The Motion Judges Decision

[18]

I
agree with the respondents that the motion judge struck the claim under rules
25.06 and 25.11.  However, he also declined to grant leave to amend.  As he
describes in the excerpt below, he declined to do so because he was confident
that the claim should be struck anyway under Rule 21 as disclosing no
reasonable cause of action:

Indeed I am more than satisfied that the defendants motion to
strike without leave to amend should be granted in its entirety.

I say this primarily because at root I agree with Mr. Centa
that this is a genuine but misguided attempt by two very upset former graduate
students to re-package and re-litigate the very claims (about leave of absence
and failing grades) that were advanced and considered and argued and reasons
given before several appeal boards as provided in the university system, namely
internal appeals to various graduate boards and overarching appeal tribunals.
I note that neither plaintiff decided to seek judicial review of the
universitys decisions with regard to any of their complaints or concerns.

[19]

The
motion judge also specifically struck the allegations pleaded against
Professors Scane and Cohen on the principle of adjudicative immunity, and found
that the court had no jurisdiction over disputes arising under the appellants
collective agreement as teaching assistants for the University.  Finally, the
motion judge struck the claims against all individual defendants as an abuse of
process.

(4)

The Appeal

[20]

The
appellants argue that the motion judge erred in dismissing the action because
the claim, or parts of it, disclosed reasonable causes of action falling within
the jurisdiction of the Superior Court of Justice.  They further submit that,
once the claim was struck, the motion judge erred in declining to grant the
appellants leave to amend.  The appellants also suggest that the motion judge exhibited
bias against them during the motion hearing.

B.

Principles and analysis

[21]

The
overriding principle the court must consider in deciding whether to grant a
party an extension of time to perfect an appeal is whether the justice of the
case requires it.  In applying this principle, the court typically takes into
account the following four factors:

1.

Whether the appellant formed an intention to appeal within the relevant
period;

2.

The length of the delay and explanation for the delay;

3.

Any prejudice to the respondent;

4.

The merits of the appeal.

See
Issasi v. Rosenzweig
, 2011 ONCA 112, at para. 4.

[22]

The
respondents acknowledge that the appellants had a timely intention to appeal,
the length of the delay is short, and a brief extension would cause them no
actual prejudice.  However, they argue that the justice of the case does not
require an extension, because the appellants have not provided a reasonable
explanation for the delay and because the underlying appeal has no merit.

(a)

Explanation for the Delay

[23]

The
appellants say they were erroneously advised by their counsel at the time that
they would have sixty days to perfect the appeal from the date they received
the motion transcript.  Emails in the motion record confirm their belief that
they were not subject to the thirty-day timeframe.  I accept the appellants
statements.  They provide a reasonable explanation for the delay.

(b)

Merits of the Appeal

[24]

I
must consider whether the appellants case has so little merit that this court
could reasonably deny the important right of an appeal:
Issasi v.
Rosenzweig,
at para. 10.

[25]

As
a preliminary matter, I reject the appellants contention that the motion judge
exhibited bias towards them.  Nothing in the transcript of the proceedings
before the motion judge supports this contention.

[26]

I
also see no merit to the appeal of the striking of the claim under Rule 25.
Rule 25.06 requires that every pleading shall contain a concise statement of
the material facts on which the party relies for the claim or defence  Rule
25.11 allows a judge to strike out a pleading, with or without leave to amend,
if the pleading (a) may prejudice or delay the fair trial of the action; (b)
is scandalous, frivolous or vexatious; or (c) is an abuse of process of the
court. The appellants statement of claim was 187 pages long and, in the words
of the motion judge, replete with evidence being repeated over and over
again.  Without doubt it violated Rule 25 and was properly struck.

[27]

The
only serious question is whether the motion judge was justified in refusing to
grant leave to amend.  His reason for doing so was his confidence that the
claim should be struck anyway under Rule 21 because it disclosed no reasonable
cause of action.  The legal benchmark for striking a claim for failing to
disclose a reasonable cause of action is whether it is plain and obvious that
the claim will fail:
Hunt v. Carey Canada Inc.
,

[1990] 2
S.C.R. 959.  Therefore, in determining whether the appeal of the motion judges
decision not to grant leave to amend has any merit, I must consider whether there
is any force in the appellants argument that it was not plain and obvious that
their claims would fail.

[28]

Largely for the reasons set out by the motion judge, I
believe that the following claims were bound to fail: all claims relating to the
appellants employment as teaching assistants; all claims alleging breaches of
the appellants rights under the
Canadian Charter of Rights and Freedoms
,
the
Canadian Human Rights Act
, the
Canada Labour Code
; all
claims relating to violations of procedural fairness, natural justice, or the
Statutory
Powers Procedure Act
, R.S.O. 1990, c. S.22, including those made
personally against Professors Scane, Cohen, and Stewart as chairs of the
internal appeals bodies; all claims alleging misfeasance in public office,
conspiracy to injure, and other miscellaneous intentional torts; and all claims
alleging breach of fiduciary duties.  If these were the only claims set out in
the appellants statement of claim, I would decline to grant an extension of
time.

[29]

I
am not prepared, however, to say the statement of claim does not disclose a
reasonable cause of action for negligence or breach of contract.  In
particular, I am not persuaded that the appellants claims arising from the
Universitys conduct in relation to the following events  subject, as they may
be, to statutory time limitations  are bound to fail:

·

The  appellants deferral in 2007  specifically, the Universitys
allegedly arbitrary delay in granting each party a deferral, and resulting damages;

·

The appellants requests for accommodation in the fall 2008
academic term  specifically, the Universitys alleged mismanagement of the
appellants request for a leave of absence, and resulting damages;

·

The appellants dispute with the University over unpaid tuition
and fees  specifically, the Universitys failure to adopt the GAABs
recommendation that the school waive the fall 2008 tuition owing and the Universitys
alleged management of the arrears during the appeals process, and resulting
damages.

[30]

This
court has held that judicial review is the appropriate option when the desired
legal remedy aims to reverse an internal academic decision made by university
authorities.  However, the court has also held that where the plaintiff
alleges factors that constitute a cause of action based on torts or a breach of
contract, while claiming damages, the court has jurisdiction, even if the
dispute stems from academic or educational activities of the university in
question:
Gauthier v. Saint-Germain
, 2010 ONCA 309, 325 D.L.R. (4th)
558, at para. 46.

[31]

Even
where a court is found to have jurisdiction, a plaintiff must still plead the requisite
elements of the cause of action.  In
Gauthier
, at paras. 47-49, Rouleau
J.A. discussed the limited ways in which a student can establish a cause of
action against a university in relation to academic decisions:

[B]y registering at a university, it is understood that the
student is subject to the discretion of that institution for the resolution of
academic issues, namely for the evaluation of the quality of the students
work, the structure and implementation of the university programsThis
discretion is very broad

To establish a cause of action for a breach of contract, the
student must show that the university failed to meet its express or implicit
obligation to which the institution committed by approving the students
registration

[I]n order to establish a cause of action based on
negligencethe student must submit specific facts to show that the behaviour of
the university, or the professor in question, constituted an intentional
tortor was outside the discretionary scope granted to the university and its
professors.

[32]

Rouleau
J.A. also discussed the two circumstances in which a court may strike a cause
of action in cases of this nature, at para. 50:

First, if the lawsuit for a tort or a breach of contract is but
an indirect attempt to appeal an internal academic decision when the proper
procedure is a judicial review (for instance, the decision to yield a specific
result, to require a specific task, to refuse admission to a program, or to
fail to grant a diploma), the option to strike will be available to the court.
Second, if the submission does not provide the necessary details to show that
the university or its employees went beyond the scope of their discretionary
power, the court may strike the cause of action.

[33]

The
appellants are not asking the court to reverse an internal academic decision
they are not asking for their grades to be changed or to be readmitted to the
program.  They are asking for damages arising from the Universitys alleged
failure to comply with its contractual obligations and the duty of care it owed
to the appellants as students.

[34]

Further,
a judge considering a motion under Rule 21 must assume that all facts in the
statement of claim are proven.  Taking the appellants allegations as true, I
cannot say that it is plain and obvious that the university did not breach its
implied obligations or exceed its discretionary power in dealing with the
appellants requests for accommodation  specifically with respect to the 2007
deferral, the fall 2008 academic term, and the appellants unpaid tuition (over
which the internal appeals bodies appear to have lacked jurisdiction).

[35]

This
court has also recently granted student-plaintiffs in similar circumstances an
opportunity to revise their statements of claim to pinpoint an implied or
express contractual term or applicable standard of care from which the
university or its employee deviated: see
Gauthier v. Saint-Germain
;
Jaffer
v. York University
, 2010 ONCA 654, 268 O.A.C. 338, leave to appeal
refused, [2010] S.C.C.A. No. 402.  I am therefore unwilling at this juncture to
deny the appellants their right of appeal of the motion judges decision.  The
justice of the case entitles the appellants to an extension of time to perfect
their appeal.

C.

Conclusion

[36]

The
appellants also seek leave to file the transcript of the submissions made
before the motion judge and an interim decision made by the Ontario Human
Rights Tribunal in relation to this case.  The respondents do not oppose this
request, and neither do I.

[37]

I
grant the appellants thirty days from the release of this decision to perfect
their appeal.  If the appeal is not perfected within this thirty-day period,
the respondents may bring a motion without notice before the registrar to have
the appeal dismissed.  As the appellants obtained only limited success on the
motion and were asking for an indulgence from the court, I order that there be
no costs of the motion.

Released: Jan 30, 2013                                                   John
Laskin J.A.

JL


COURT OF APPEAL FOR ONTARIO

CITATION:

Naeli v. Ghaeinizadeh, 2013
    ONCA 2

DATE: 20130104

DOCKET: C55766

LaForme and Watt JJ.A. and Lederman J. (
ad hoc
)

BETWEEN

Ila Naeli

Applicant (Respondent on Appeal)

and

Pedram Ghaeinizadeh
and
    Payam Ghaeinizadeh

Respondent (Appellant on Appeal)

Heather Hansen, for the
    appellant

Daryl Gelgoot and Brittany Twiss, for the respondent

Heard: December 10, 2012

On appeal from the order of Justice Victor Paisley of the
    Superior Court of Justice, dated July 10
th
, 2012.

ENDORSEMENT

Introduction

[1]

The father appeals from orders made pursuant to urgent motions brought
    by the respondent mother.  Among other things, the mother sought temporary
    custody of the parties child  who was physically present in Ontario at the
    time of the application  child and spousal support, a preservation order, and
    a Certificate of Pending Litigation against title to the Matrimonial Home.

[2]

On the motion the father argued, as he does on appeal, that the Superior
    Court lacked jurisdiction to make any of the requested orders.  The motion
    judge concluded that the court had jurisdiction and that he ought to deal with
    the urgent issues on an interim basis.

[3]

In assuming jurisdiction, the motion judge cited the undisputed fact
    that the parties resided together in Ontario for a substantial period of time, namely
    from July 2011 to April 2012, and resided in Ontario with the child at the time
    of separation. He also cited the undisputed fact that the child was enrolled in
    preschool in Toronto, that the mother had been the childs primary caregiver
    since birth, and that the parties are Canadian citizens.

[4]

The motion judge granted the mother temporary custody of the child, and
    ordered the father to make a one-time support payment in the amount of $5,000
    to be credited against any future orders for support. The motion judge also
    ordered the issuance of a Certificate of Pending Litigation against the
    Matrimonial Home, a non-depletion order and ordered that the father maintain
    the payments on the home and a car.

[5]

The issues of access, exclusive possession of the Matrimonial Home,
    child and spousal support and
forum conveniens
were adjourned to be
    discussed at the case conference.

Facts

[6]

There are many facts the husband and wife do not agree on such as the
    nature and extent of their stay in Canada.  In addition there are allegations
    of abuse between the husband and wife.  However, there are also facts not in
    dispute, including that: the husband and wife were married in 2006 and are
    citizens of Canada; the husband is a business development consultant in
    Thailand; the wife is a stay-at-home mother and an entrepreneur; and, the
    parties have a son who was born in Thailand in 2008.

[7]

Additionally, it is not disputed that the parties have spent
    considerable time in Canada since July 2011; t
he child was
    present in Ontario at the time of separation and when the mother commenced her application;
    and, the child was enrolled in preschool in Ontario in September
2010.

Positions of the Parties

[8]

The husband takes the position that the motion judge erred in assuming
    jurisdiction in a summary manner and in making the orders he did where
    jurisdiction was in dispute.

[9]

In oral argument, counsel emphasized that in the face of a
    jurisdictional challenge, no substantive orders should have been made.  In
    particular, it is argued that in order to avoid prejudice to the husband, only
    access, rather than custody, should have been ordered on a temporary basis.

[10]

The
    wifes position is that no error was made.

Analysis

[11]

Appellate
    courts are to give considerable deference to custody and access decisions made
    at first instance.  An appellate court will not overturn a custody order in the
    absence of a material error, a serious misapprehension of the evidence or an
    error in law.  See
Van de Perre v. Edwards
, [2001] 2 S.C.R. 1014
    at paras. 11-12.

[12]

In
    this case, temporary orders were made both under the
Family Law Act
,
    R.S.O. 1990, c.F.3, as am. (the
FLA
) for bridge support and to
    preserve the wifes other claims under that Act, and the
Childrens Law
    Reform Act
, R.S.O. 1990, c.C.12 as am. (the
CLRA
).

(1)

Jurisdiction
    to make the orders
under the
FLA

[13]

Since
    the
FLA
does not specifically address the question of jurisdiction
    simpliciter, the common law real and substantial connection test applies.

[14]

As
    the Supreme Court recently explained in
Club Resorts Ltd. v. Van Breda
,
    2012 SCC 17, 343 D.L.R. (4
th
) 577 at para. 82, a real and
    substantial connection must be established on the basis of objective factors
    that connect the legal situation or the subject matter of the litigation with
    the forum. The following factors were identified as presumptive connecting
    factors that,
prima facie
, entitle a court to assume jurisdiction over
    a tort dispute: the defendant is domiciled or resident in the province; the
    defendant carries on business in the province; the tort was committed in the
    province; and a contract connected with the dispute was made in the province.

[15]

The
    list must of course be modified in the family context. Here the judge relied on
    a number of factors including that the parties resided together in Ontario for
    a substantial period of time, that they resided in Ontario with the child at
    the time of separation, that the child is enrolled in a preschool program in
    Toronto, and that the applicant and respondent are Canadian citizens.

[16]

While
    the husband objects to the determination of jurisdiction in a summary fashion, as
    the court observed at para. 72 of
Van Breda
, this is not at all
    unusual:

A particular challenge in this respect lies in the fact that
    court decisions dealing with the assumption and the exercise of jurisdiction
    are usually interlocutory decisions made at the preliminary stages of
    litigation. These issues are typically raised before the trial begins. As a
    result, even though such decisions can often be of critical importance to the
    parties and to the further conduct of the litigation, they must be made on the
    basis of the pleadings, the affidavits of the parties and the documents in the
    record before the judgeIssues of fact relevant to jurisdiction must be settled
    in this context, often on a
prima facie
basis.

[17]

We
    accordingly find no error in the motion judges assumption of jurisdiction for
    the purpose of making preservation orders on an urgent motion while adjourning
    the question of whether the court should exercise that jurisdiction for the
    purposes of the subject application to a later date.

(2)

Jurisdiction
    to make the orders
under the
CLRA

[18]

Section
    22 of the
CLRA
sets out the only circumstances in which a court shall
    exercise its jurisdiction to make an order for custody of or access to a child:

(1)
A
    court shall only exercise its jurisdiction to make an order for custody of or
    access to a child where,

(a) the child is habitually resident in Ontario at the
    commencement of the application for the order;

(b) although the child is not habitually resident in Ontario,
    the court is satisfied,

(i) that the child is physically present in Ontario at the
    commencement of the application for the order,

(ii) that substantial evidence concerning the best interests
    of the child is available in Ontario,

(iii) that no application for custody of or access to the
    child is pending before an extra-provincial tribunal in another place where the
    child is habitually resident,

(iv) that no extra-provincial order in respect of custody of
    or access to the child has been recognized by a court in Ontario,

(v) that the child has as real and substantial connection
    with Ontario, and

(vi) that, on the balance of convenience, it is appropriate
    for jurisdiction to be exercised in Ontario.

[19]

While
    the motion judge did not specifically address each of the criteria listed under
    s. 22(1)(b), we are satisfied that on his findings, the minimum criteria to
    establish jurisdiction
simpliciter
were met: the child was living in
    Toronto at the time of the application; the child had been living in Toronto
    with his parents for many months; there was no application for custody or
    access made elsewhere at the time of the motion; there was no extra-provincial
    order relating to custody or access recognized in Ontario; the child having
    lived for several months in Ontario and being enrolled in preschool had a real
    and substantial connection with Ontario; and on the balance of convenience it
    was in the childs best interests for jurisdiction to be exercised in Ontario
for
    the purposes of the urgent motion
. For the purpose of the application for
    substantive relief, the question of whether Ontario should be the one to
    exercise jurisdiction was adjourned to a later date.

[20]

We
    would also stress that it is clear from the reasons of the motion judge that his
    primary concern was the best interests of the child, in all the urgent
    circumstances.

Disposition

[21]

We
    see no error in the orders made and the appeal is dismissed.  We agree with the
    motion judge that the question of
forum conveniens
is still to be
    determined either on consent or upon a full hearing of the evidence.

[22]

The
    wife is awarded her costs of the appeal fixed in the amount of $10,000
    inclusive of disbursements and HST.

H.S. LaForme
    J.A.

David Watt J.A.

S. Lederman J. (
ad hoc
)


COURT OF APPEAL FOR ONTARIO

CITATION:
N.G. v. J.T.W., 2013
    ONCA 4

DATE: 20130109

DOCKET: C55699

MacPherson, Cronk and Lauwers JJ.A.

BETWEEN

N.G.

Applicant (Respondent)

and

J.T.W.

Respondent (Appellant)

No one appearing for the appellant

Steven A. Fried, for the respondent

Heard and released orally: January 7, 2013

On appeal from the orders of Justice Stanley J. Kershman
    of the Superior Court of Justice, dated May 30, 2012.

ENDORSEMENT

[1]

The appellant did not appear for the hearing. However, he sent a letter
    inviting the court to hear the appeal on the existing record.

[2]

The appellant appeals the Orders of Kershman J. dated May 30, 2012.
    Although the first order dealt with several matters, the key component
    challenged by the appellant on this appeal is the one relating to the
    appellants access to his eight year old daughter. Kershman J. varied the order
    of Linhares de Sousa J. dated December 12, 2008 to provide that the appellant
    have supervised access to the child until such time as he provides a
    satisfactory mental health evaluation indicating that he is fit to care for the
    child on an unsupervised basis. The second order was a restraining order.

[3]

The appellant appeals on two grounds.

[4]

First, the appellant contends that the motion judge failed to consider
    key medical, police and other evidence in his consideration of the mental
    health of the appellant.

[5]

We do not accept this submission. The appellant explicitly chose not to
    attend the hearing. He said that he was content to have the motion proceed on
    the basis that his position was set out in his written material. It is obvious
    from the motion judges comprehensive 83 paragraph judgment that the motion
    judge carefully considered the appellants position. Importantly, the question
    of the appellants mental health was canvassed in some detail in the motion
    judges reasons.

[6]

Second, the appellant submits that the motion judge failed to consider the
    best interests of the child.

[7]

We do not agree. The best interests of the eight year old child were the
    central focus of the motion judges reasons. He carefully and comprehensively
    reviewed the appellants mental health and his increasingly bizarre behaviour
    through the prism of this question: what is their effect, actual and potential,
    on this child? On the basis of the record before him, we see no error in the
    motion judges approach, analysis and conclusion on this issue.

[8]

The court was advised by respondents counsel that the appellant has now
    undergone a medical assessment and that, based on that assessment, the
    respondent is now prepared to accept that there is no longer a need for a
    restraining order against the appellant and that unsupervised access is now
    appropriate. We note that this could be the subject of a consent order in
    superior court in Ottawa.

[9]

The appeal is dismissed. The respondent is entitled to her costs of the
    appeal fixed at $10,000 inclusive of disbursements and applicable taxes.

J.C. MacPherson J.A.

E.A. Cronk J.A.

P. Lauwers J.A.