COURT OF APPEAL FOR ONTARIO

CITATION: Friendly v. Elkind, 2014 ONCA 406

DATE: 20140520

DOCKET: C58057

Gillese, van Rensburg and Hourigan JJ.A.

BETWEEN

Lynda
    Friendly and

Lynda Friendly &
    Associates

Applicants (Respondents)

and

Manuel Elkind
and

1671379 Ontario Inc.

Respondents (
Appellant
)

Gary S. Joseph and Kristy Maurina, for the appellant

Elliott S. Birnboim and Gargi Chopra, for the respondent

Heard: May 6, 2014

On appeal from the order of Justice Nancy L. Backhouse of
    the Superior Court of Justice, dated November 22, 2013 and on leave to appeal
    the cost order of Justice Nancy L. Backhouse of the Superior Court of Justice,
    dated January 9, 2014.

ENDORSEMENT

[1]

This is an appeal from the order of Backhouse J. dated November 22,
    2013, granting summary judgment requiring the appellant to repay the sum of
    $195,538.98 to the parties joint line of credit, and payment of $10,000 plus
    interest to the corporate respondent. The appellant also seeks leave to appeal
    a costs award in the sum of $40,000.

[2]

The appellant Manuel Elkind and the personal respondent Lynda Friendly
    are engaged in matrimonial proceedings. Ms. Friendly owns the matrimonial home
    at 56A Oriole Road, Toronto, against which is registered a joint line of
    credit. Pursuant to a marriage contract, Mr. Elkind has the right to be paid
    his proven contribution to the matrimonial home plus one half of any balance
    after Ms. Friendlys initial contribution and the balance due on the line of
    credit, and Ms. Friendly has the right to require a buyout of her 40% interest
    in 1671379 Ontario Inc. (167), which is owned 40% by each of the parties and
    20% by the appellants children. The major asset of 167 is a development property
    located on Welland Avenue, St. Catharines.

[3]

Between 2008 and 2012 the appellant withdrew funds from the joint line
    of credit for his personal and business uses, at times without Ms. Friendlys
    knowledge or consent. He signed a number of documents promising to repay the
    amounts, and it is in respect of these debts, as well as a promissory note in
    favour of the corporate respondent, that summary judgment was sought by the
    respondents and granted by the motion judge.

[4]

The appellant does not contest the source and amount of the funds he
    received (except with respect to the sum of $10,000 stated to be repayable to
    the corporate respondent). He concedes that he intended to repay to the joint
    line of credit, what he had borrowed, in the amounts reflected in the
    documents. At issue is whether the repayment obligations have matured, whether
    there is any defence to any of the promises to pay, and whether summary
    judgment should have been refused on the basis that there are other financial
    issues outstanding between the parties in their matrimonial proceedings.

[5]

For the reasons that follow, the appeal is dismissed.

[6]

First, we agree with the conclusion of the motion judge that each of the
    repayment obligations has matured.

[7]

By written agreement dated July 27, 2012, Mr. Elkind agreed to repay the
    sum of $65,000 on the earliest of certain specified events, including written demand.
    The commencement of these proceedings constituted a written demand, such that
    payment is due. A promissory note dated August 5, 2009 required payment of
    $10,000 plus interest to the corporate respondent by April 1, 2010; repayment was
    extended by the parties to April 1, 2013 by a handwritten, signed and witnessed
    addendum. Both of these payment obligations have matured.

[8]

A document entitled Loans Made to Manny Elkind and 1671379 Ontario Inc.
    from 56A Oriole Road (Lynda Friendly) and dated July 26, 2010 references three
    loans between June 2008 and July 2010 for a total of $52,208.98, as well as the
    August 2009 note in favour of the corporate respondent, for $10,000. The
    document states: All of these funds are to be paid back to Lynda Friendly from
    funds that come from the sale of 583 Welland Avenue, St. Catharines in first
    position, whether paid by Manny Elkind or 1671379 Ontario Inc.

[9]

In December 2012, 167 entered into an agreement for the sale of 583
    Welland Avenue, St. Catharines and received an initial deposit of $500,000, of
    which $250,000 was to be paid to 167, to be used for its own purposes. The appellant
    contends that, because the sale of 583 Welland Avenue, St. Catharines was
    conditional upon the completion and delivery of fully serviced lots, which had
    not yet occurred, there is no obligation to repay the amounts referenced in the
    July 2010 document.

[10]

The
    motion judges conclusion that the repayment obligation had matured was based
    on the uncontradicted evidence that the sale, although conditional, had
    generated funds in the form of the deposit. We agree with the motion judges conclusion
    that the document provided for an unconditional promise to pay at a
    determinable time. As soon as funds were received from the sale, the payment
    obligation was triggered; this intention was apparent from the provision that
    the respondent was to be in first position.

[11]

The
    fact that there was a subsequent court order directing the payment of the funds
    to various purposes did not affect the maturity of the payment obligation. The
    motion judge was satisfied that the appellant had access to some of the
    proceeds, and she noted that he had used the deposit on the sale of the
    property in part to repay his own shareholder loans. We see no error in her
    conclusion with respect to the July 2010 loan document.

[12]

Between
    September 2010 and March 2011, Mr. Elkind made withdrawals totalling $78,330 from
    the joint account and signed four documents in which he agreed to repay the
    monies referred to in the notes along with other funds he had withdrawn from
    the joint line of credit when the funds [were] available from [him] or [his]
    estate, upon [his] death. The motion judge rejected the appellants contention
    that it was up to him to decide whether he had funds available or whether to postpone
    the payment until after his death. She concluded that funds had become available
    to the appellant, and that the loans were therefore payable.

[13]

The
    appellant argues that there were in fact no funds available in part as a
    result of the various orders obtained by Ms. Friendly in the litigation, which
    have restricted the ability of 167 to make payments, except in the ordinary
    course of business. He contends that at least there was contradictory evidence
    on the issue and that summary judgment ought not to have been granted.

[14]

There
    was clearly evidence of funds being available to the appellant when 167
    received the deposit on the conditional sale of the St. Catharines property,
    and as a result of the management fee he negotiated when he increased 167s
    mortgage. In an endorsement of August 20, 2013, among other things, enjoining
    167s ability to make further payments, mortgage draws or commitments without
    further order of the court or Ms. Friendlys consent, Paisley J. concluded that
    the appellant had received repayment of shareholder loans, payment of personal
    legal fees and mortgage commitment fees, all in breach of an earlier order that
    any payments be approved by Ms. Friendly. This was a prior finding of the court
    with respect to funds that had been available to the appellant. Accordingly,
    the payment obligations of the appellant under the four documents he signed
    between September 2010 and March 2011 had matured.

[15]

The
    motion judge also rejected, on the evidence, the appellants contention that he
    was vulnerable and had been taken advantage of by Ms. Friendly. This was a bald
    allegation unsupported by any evidence. The appellant had legal counsel or
    access to counsel throughout. In any event he had been refused leave to amend
    his answer to plead unconscionability.

[16]

The
    appellant argues on appeal that he has a claim for set-off with respect to the
    amounts secured by the promissory notes, and that any liability on the
    promissory notes is inextricably bound up with his claims in the matrimonial
    proceedings. There is no right to set-off as a matter of law or fact. At best,
    the appellant has a claim in the matrimonial proceedings that he has yet to establish,
    that he made a contribution toward the matrimonial home for which he should
    receive credit under the parties marriage contract. This claim, like Ms.
    Friendlys claim for payment of her share of the value of 1671379 Ontario Inc.,
    remains outstanding, and is not affected by the requirement that the appellant
    repay his obligations to the joint line of credit.

[17]

The
    appellant conceded his obligation to repay funds that were taken from the parties
    joint line of credit. He signed promissory notes and other documents confirming
    his intention to repay the amounts. The terms of repayment were clear from the
    documents, and the appellant established no triable issue in defence to his
    repayment obligations. Accordingly, summary judgment was properly granted and
    the appeal to this court is dismissed.

[18]

As
    the appellant acknowledges, his motion for leave to appeal costs depends on his
    success in the appeal. As the appeal has been dismissed, leave to appeal costs
    is denied.

[19]

Accordingly,
    the appeal is dismissed, with costs to the respondents fixed in the amount of $10,000
    inclusive of disbursements and HST.

E.E. Gillese J.A.

K.
    van Rensburg J.A.

C.W.
    Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Gibson (Re), 2014 ONCA 435

DATE: 20140529

DOCKET: C57954

Rosenberg, MacPherson and Lauwers JJ.A.

IN THE MATTER OF:  MATTHEW GIBSON

AN APPEAL UNDER PART XX.1 OF THE
CODE

Matthew Gibson, appearing in person

Anita Szigeti,
amicus curiae

Mary Ellen Hurman, for the Crown

Janice Blackburn, for the person in charge of St.
    Josephs Healthcare Hamilton

Heard: May 27, 2014

On appeal against the disposition of the Ontario Review
    Board dated, November 14, 2013.

ENDORSEMENT

[1]

The appellant, Matthew Gibson, appeals the Disposition Order of the
    Ontario Review Board (ORB) dated November 14, 2013, with reasons dated
    January 6, 2014, pursuant to which he was discharged subject to a number of
    conditions, including that he reside in approved accommodation and report to
    the person in charge of St. Josephs Healthcare, Hamilton, or his or her
    designate, not less than twice per month.

[2]

The appellant, assisted by
amicus
, contends that the ORB erred
    in failing to grant an absolute discharge.  His principal argument in support
    of this submission is that the ORB erred by concluding that he represents a
    significant threat to public safety, and that a Conditional Discharge is least
    onerous and least restrictive in the circumstances to manage the threat that he
    represents.

[3]

We do not accept this submission.  The ORB carefully considered the
    appellants mental state and behaviour and the hospital administrators report
    written by Dr. Padgett, who said that, absent the control offered by his
    current conditional discharge order, the accused would become a significant
    risk to many individuals in the community.  We see no basis for interfering
    with the ORBs unanimous disposition order.

[4]

The appeal is dismissed.

M. Rosenberg J.A.

J.C. MacPherson J.A.

P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Goldentuler v. Mercedes-Benz Canada Inc., 2014 ONCA
    361

DATE: 20140505

DOCKET: C57353

Juriansz, Tulloch and Strathy JJ.A.

BETWEEN

Edward Goldentuler

Plaintiff/Appellant

and

Mercedes-Benz Canada Inc.,
    Francisco Pereira, Chris Cowle, Robert Buschman and Scott McEdwards

Defendants/Respondents

Karl Girdhari, for the appellant

Anthony E.C. Bak, for the respondents

Heard: April 29, 2014

On appeal from the order of Justice Mark L. Edwards of
    the Superior Court of Justice, dated June 17, 2013, with reasons reported at
    2013 ONSC 4150.

ENDORSEMENT

[1]

The appellant, a lawyer, brought an action in the Superior Court of
    Justice in relation to service he received at two Mercedes-Benz dealerships. He
    sued two service managers and two mechanics, at the dealerships, as well as
    Mercedes-Benz Canada Inc., claiming damages for breach of contract and
    negligence in the replacement of his brakes. In addition, he alleged the respondents
    conspired to avoid replacing a defective brake rotor, making the vehicle
    unsafe. He claimed $2,000 in special damages, and $1 million in punitive,
    exemplary and aggravated damages.

[2]

On the respondents summary judgment motion, the motion judge found the
    appellant had failed to produce any evidence to support the allegations of
    conspiracy. Referring to the well-known line of authority in this court, the
    motion judge also found that the appellant was not entitled to sit back and
    rely on the possibility that more favourable facts may develop at trial: see
Combined
    Air Mechanical Services Inc. v. Flesch
, 2011 ONCA 764, 108 O.R. (3d) 1, at
    para. 56, affd on other grounds 2014 SCC 7; see also
Canada (Attorney
    General) v. Lameman
,
2008 SCC 14, [2008] 1 S.C.R. 372,

at
    para.11.

The motion judge therefore dismissed the conspiracy claim.

[3]

The other claims with respect to the allegedly defective repair work,
    and the claim for punitive damages, were permitted to proceed to trial. The
    motion judge granted the respondents costs of $17,500, plus disbursements.

[4]

The appellant submits the motion judge erred by not drawing an inference
    of conspiracy based on the defendants conduct. We do not accept this
    submission. The motion judge considered all the evidence, including the
    affidavit evidence of the four individual defendants, who were not
    cross-examined, and concluded that the appellant had not proven the existence
    of a conspiracy.  The conduct the appellant points to was consistent with
    breach of contract or negligence. It was open to the motion judge to find that
    this evidence, when viewed together with all the evidence, including the
    respondents explanation, did not establish a conspiracy.

[5]

We would therefore dismiss the appeal.

[6]

The standard of review as to costs is high  a costs award should only
    be set aside if the trial judge has made an error in principle or if the costs
    award is plainly wrong:
Hamilton v. Open Window Bakery Ltd.
, 2004 SCC
    9, [2004] 1 S.C.R. 303, at para. 27;
McDowell v. Barker
, 2012 ONCA 827,
    at para. 17. No such circumstances have been identified. We would therefore
    dismiss the appeal as to costs.

[7]

The respondents are entitled to their costs of this appeal, on a partial
    indemnity basis, fixed at $10,000 inclusive of disbursements and all applicable
    taxes.

R.G.
    Juriansz J.A.

M. Tulloch
    J.A.

G.R.
    Strathy J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Great Atlantic & Pacific Company of Canada
    Limited v. Economical Mutual Insurance Co., 2014 ONCA 350

DATE: 20140501

DOCKET: C58087

MacPherson, Blair and Pepall JJ.A.

BETWEEN

The Great Atlantic & Pacific Company of
    Canada Limited

Applicant (Respondent)

and

Economical Mutual Insurance Co.

Respondent (Appellant)

Alan Rachlin, for the appellant

James C. Simmons, Q.C. and P. Peter Diavolitsis, for the
    respondent

Heard: April 25, 2014

On appeal from the judgment of Justice
Patricia
    C.

Hennessy of the Superior Court of Justice, dated
    November 28, 2013.

APPEAL BOOK ENDORSEMENT

[1]

The appellant appeals from the judgment of Hennessy J. of the Superior
    Court of Justice dated November 28, 2013, ordering that the appellant indemnify
    the respondent for costs incurred in defending a slip and fall suit brought by
    a customer who slipped in one of its stores.

[2]

The appellant contends that the application judge erred by finding that
    issue estoppel did not bar the respondents claim and erred by concluding that
    the claims brought by the plaintiffs in the lawsuit did trigger a duty on the
    part of the appellant to defend the respondent.

[3]

On both of these issues, we agree with the application judges
    conclusions and, in large part, with her reasons for reaching these
    conclusions.

[4]

The appeal is dismissed.

[5]

The respondent is entitled to its costs of the appeal fixed at $9000,
    inclusive of disbursements and HST.


COURT OF APPEAL FOR ONTARIO

CITATION:
Green v. Canadian Imperial Bank of Commerce, 2014 ONCA
    344

DATE: 20140501

DOCKET: C55832, C55982, C56252

Doherty, Feldman, Cronk, Blair and Juriansz JJ.A.

C55832

BETWEEN

Howard Green and Anne Bell

Plaintiffs (Appellants)

and

Canadian Imperial Bank of Commerce, Gerald
    McCaughey, Tom Woods, Brian G. Shaw, and Ken Kilgour

Defendants (Respondents)

C55982

BETWEEN

Marvin Neil Silver and Cliff Cohen

Plaintiffs (Respondents)

and

IMAX Corporation, Richard L. Gelfond, Bradley J.
    Wechsler, Francis T. Joyce, Neil S. Braun, Kenneth G. Copland, Garth M. Girvan,
    David W. Leebron and Kathryn A. Gamble

Respondents (Appellants)

C56252

BETWEEN

Trustees of the Millwright Regional Council of
    Ontario Pension Trust Fund

Plaintiffs (Respondents)

and

Celestica Inc., Stephen W. Delaney and Anthony P.
    Puppi

Defendants (Appellants)

AND BETWEEN

Nabil Berzi

Plaintiffs (Respondents)

and

Celestica Inc., Stephen W. Delaney and Anthony P.
    Puppi

Defendants (Appellants)

AND BETWEEN

Huacheng Xing

Plaintiffs (Respondents)

and

Celestica Inc., Stephen W. Delaney and Anthony P.
    Puppi

Defendants
    (Appellants)

R. Paul Steep and Dana M. Peebles, for the appellants IMAX
    Corporation, Richard L. Gelfond, Bradley J. Wechsler, Francis J. Joyce, Neil S.
    Braun, Kenneth G. Copland, Garth M. Girvan, David W. Leebron and Kathryn A.
    Gamble

William V. Sasso, A. Dimitri Lascaris, Serge Kalloghlian
    and Daniel E. Bach, for the respondents Marvin Neil Silver and Cliff Cohen

Joel P. Rochon, Peter R. Jervis, Sakie Tambakos, John
    Archibald and Remissa Hirji, for the appellants Howard Green and Anne Bell

James C. Tory and Sheila Block, for the respondent
    Canadian Imperial Bank of Commerce

Benjamin Zarnett and David Conklin, for the respondents Gerald
    McCaughey, Tom Woods, Brian G. Shaw, and Ken Kilgour

Nigel Campbell and Ryan A. Morris, for the appellants
    Celestica Inc., Stephen W. Delaney and Anthony P. Puppi

Kirk M. Baert, Celeste Poltak, Michael Mazzuca, Peter
    Prozanski and Trent Morris, for the respondents Trustees of the Millwright
    Regional Council of Ontario Pension Trust Fund, Nabil Berzi, Huacheng Xing

Anna Perschy, for the intervenor Ontario Securities
    Commission

Alan L.W. D'Silva, Mark E. Walli and Lesley Mercer, for
    the intervenor Insurance Bureau of Canada

Margaret L. Waddell, for the intervenor Canadian
    Foundation for Advancement of Investor Rights

Jonathan Bida, for the intervenor Shareholder
    Association for Research and Education

Heard: May 13, 14, 15, 16, 2013

On appeal from the order of Justice G.R. Strathy of the
    Superior Court of Justice, dated July 3, 2010, with reasons reported at 2012
    ONSC 3637 (C55832); and on appeal from the order of Justice K.M. van Rensburg
    of the Superior Court of Justice, dated August 27, 2012, with reasons reported
    at 2012 ONSC 4881 (C56252); and on appeal from the order of Justice P.M. Perell
    of the Superior Court of Justice, dated October 15, 2012, with reasons reported
    at 2012 ONSC 6083 (C56252).

COSTS ENDORSEMENT

Feldman J.A.:

[1]

At the conclusion of the Reasons for Decision released February 3, 2014,
Green v. Canadian Imperial Bank of Commerce
, 2014 ONCA 90, 118 O.R.
    (3d) 641, the parties in each of the three appeals were given the opportunity
    to either agree on costs or to make brief written submissions with respect to
    the costs of their respective appeals. The court has received submissions on
    costs in two of the appeals.

Green
and Bell v. CIBC et al

[2]

The successful appellants bill of costs for this appeal sets out
    $503,333.50 in fees (plus HST) on the partial indemnity scale, plus
    disbursements, inclusive of HST, of $14,504.87. However, the appellants reduced
    their claim for costs to $125,000 for fees (plus HST), and $10,000 for
    disbursements, for a total costs award of $151,250.

[3]

The respondents do not oppose an award of costs of the appeal to the
    appellants on the partial indemnity scale. Their objection is to the amount
    claimed. They suggest an award of $50,000, inclusive of disbursements and HST.

[4]

The respondents make four submissions to support their position.

[5]

The first is that the appellants lawyers spent too much time on the
    appeal (1783.8 hours in total). In contrast, the respondents lawyers spent
    1097.40 total hours.

[6]

It appears that appellants counsel recognized that the number of hours
    actually spent could not reasonably be used as the basis for a costs award,
    because they reduced their fee claim by approximately 75%. They also reduced
    the amount claimed for disbursements, although the court was not given details
    of the disbursements.

[7]

The respondents second submission is that they should not be expected
    to bear the extra costs incurred because on the courts own motion, the appeal
    was adjourned to be argued with the two other appeals before the five-judge
    panel. I do not accept this submission. Any additional costs incurred were part
    of the process necessary to address the important legal issue regarding the
    tolling of the limitation period for class action plaintiffs under s. 28 of the
Class Proceedings Act
,
1992
, S.O. 1992, c. 6. As discussed in
    the Reasons for Decision, that issue has a direct impact on access to justice
    for class members, particularly in the context of class actions under Part
    XXIII.1 of the
Securities Act,
R.S.O. 1990, c. S.5. In any event, the
    appellants reduction in the amount claimed for costs essentially removes the
    effect on costs of the additional procedure.

[8]

The respondents third submission is that because the appeal
    involved matters of public interest, a costs factor under s. 31(1) of the
Class
    Proceedings Act
, the amount of costs to the successful party should be
    reduced. The respondents cite this courts decision in
McCracken v.
    Canadian National Railway Company
, 2012 ONCA 797, where the court reduced
    the costs of the successful defendant, Canadian National Railway, because the
    appeal raised novel issues and engaged the access to justice rationale of the
Class
    Proceedings Act
.

[9]

In my view,
McCracken
is distinguishable from the
    present appeal. In
McCracken
, because the defendant was successful,
    the costs were to be paid by the class action representative plaintiff and the
    Class Proceedings Fund of the Law Foundation of Ontario. In
McCracken
,
    the court determined that access to justice considerations were implicated when
    either a class plaintiff or the Law Foundation of Ontario is  required to pay
    costs awards imposed on these litigants. The amount of the award was moderated
    as part of those considerations. By contrast, in
Pearson v. Inco

Ltd
.
    (2006), 79 O.R. (3d) 427 (C.A.), at para. 8, the court found that the fact that
    the issue on the appeal was a matter of public interest and engaged s. 31(1) of
    the
Class Proceedings Act
was a factor that favoured a
more

significant costs award to the
    successful class plaintiffs.

[10]

The fourth submission is that because this court overruled
    its own prior holding, there should be no costs award. That was the result in
David
    Polowin Real Estate Ltd. v. Dominion of Canada General Insurance Co.
, 2008
    ONCA 703, 93 O.R. (3d) 257. In that case, the unsuccessful plaintiffs argued
    that because they had brought class actions in reliance on an earlier ruling of
    the court that was later overruled after their actions had commenced, they
    should therefore receive an award of costs. The court declined to do so. It
    then considered whether the successful insurers should receive their costs from
    the unsuccessful plaintiffs and the Law Foundation of Ontario in accordance
    with the normal rule, and concluded that in the circumstances where the class
    actions had been instituted based on the courts prior ruling, and because the
    appeal was a test case that settled the law for everyone, it was appropriate to
    make no costs order.

[11]

The factors that applied in
Polowin
are not
    applicable in this case. There were no steps taken by any of the parties to
    these appeals in detrimental reliance on this courts decision in
Sharma v.
    Timminco Ltd.,
2012 ONCA 107, 109 O.R. (3d) 569. As the respondents have
    properly acknowledged, the successful appellants are entitled to their costs
    here. The issue is what constitutes a fair and reasonable award:
Boucher v.
    Public Accountants Council for the Province of Ontario
(2004), 71 O.R.
    (3d) 291 (C.A.).

[12]

In my view, the appellants have acted reasonably in significantly
    reducing their claim for fees and disbursements, to reflect the fact that the
    number of hours spent by the number of lawyers involved does not represent a
    reasonable amount to be paid by the respondents. The amount claimed by the
    appellants is fair and reasonable in light of the costs factors set out in rule
    57.01(1) of the
Rules of Civil Procedure
,
R.R.O. 1990, Reg. 194
.
The proceedings were
    complex, and the issue on the appeal was a matter of public interest that
    affects access to justice for class action plaintiffs, particularly for claims
    under s. 138.3 of the
Securities Act
. I would award the amount
    claimed: $151,250.00, inclusive of disbursements and HST.

Silver and Cohen v. Imax et al.

[13]

The successful respondents claim costs of the appeal of $100,000.00,
    inclusive of disbursements and HST. This represents a significant reduction of
    the actual partial indemnity bill of $329,702.39.

[14]

The
    appellants submit that there should either be no costs of the appeal, or if
    costs are awarded to the successful party, then a fair and reasonable amount is
    $55,000, inclusive of disbursements and HST.

[15]

The
    appellants main submission is that the respondents over-lawyered the case.
    They spent over 1100 hours, while the appellants spent only 259.9 hours.

[16]

On
    the motion, the motion judge accepted the law as set out in
Sharma v.
    Timminco Ltd.
and extended the limitation period by applying the doctrine
    of
nunc pro tunc
. It was this latter finding that the appellants
    appealed. However, in this court, the appeal turned on the reconsideration of
Sharma
    v. Timminco
only. The appellants point to the significance of the case for
    them. It was clearly significant for all parties and for securities class
    action practice generally. The respondents and all parties had to address not
    only the issue raised by the decision of the motion judge but also the issue
    raised by the court.

[17]

In
    my view, in these unusual circumstances, the amount claimed by the respondents
    is fair and reasonable. It is also comparable to the amount set out in the
    appellants own bill of costs for the appeal, which indicates that the
    appellants incurred fees on a partial indemnity basis in the amount of
    $98,007.16, inclusive of HST.

[18]

I
    would award the amount claimed for costs of $100,000, inclusive of
    disbursements and HST.

Kathryn Feldman J.A.

I agree. Doherty J.A.

I agree. E.A. Cronk
    J.A.

I agree. R.A. Blair
    J.A.

I agree. R.G. Juriansz
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Hansen v. Strone Corporation, 2014 ONCA 385

DATE: 20140512

DOCKET: C58060

Laskin, Rouleau and Lauwers JJ.A.

BETWEEN

Jack Hansen and Susan Hansen operating as Otter
    Creek Farm

Plaintiffs (Respondents)

and

Strone Corporation, Strone Inc., Strone
    Management Services Inc. and Michael Macciocchi

Defendants (Appellants)

Chantal Brochi, for the appellants

D. Dooley and E. Durant, for the respondents

Heard: May 1, 2014

On appeal from the order of Justice Pierce of the Superior
    Court of Justice, dated November 18, 2013.

APPEAL BOOK ENDORSEMENT

[1]

We agree with the reasons of the motion judge.  Accordingly, the appeal
    is dismissed with costs of $10,000 all in.


COURT OF APPEAL FOR ONTARIO

CITATION: Hurontario Travel Centre v. Brennan, 2014 ONCA 405

DATE: 20140515

DOCKET: C57366

Doherty, Epstein and Benotto JJ.A.

BETWEEN

Hurontario Travel Centre and Michael King

Appellants (Plaintiffs)

and

Deirdre Brennan

Respondent (Defendant)

Michael King, appearing in person

Abel Fok and W.J. Manuel, for the respondent (defendant)

Heard: May 14, 2014

On appeal from the decision of Justice T. McEwen of the Superior
    Court of Justice, dated June 20, 2013.

APPEAL BOOK ENDORSEMENT

[1]

We agree with the motion judges
res judicata
analysis (paras.
    17-26).  The action was properly dismissed.

[2]

Costs to the respondent in the amount of $6,000, inclusive of disbursements
    and taxes.


COURT OF APPEAL FOR ONTARIO

CITATION: JBN Medical
    Diagnostic Services Inc. v. 1527877 Ontario Inc.,

2014 ONCA 413

DATE: 20140521

DOCKET: C57602

Weiler, Hourigan and Pardu JJ.A.

BETWEEN

JBN
    Medical Diagnostic Services Inc.,

Jojaz Holdings Inc. and
    William Nisker Holdings Inc.

Plaintiffs (Respondents)

and

1527877
    Ontario Inc., 1449312 Ontario Inc.,

Fausto
    Carnicelli, Werner Dingfeld,

Halton
    Family Health Centre Inc.

and
    Stresa Gruppo Inc.

Defendants (Appellants)

AND BETWEEN

1449312
    Ontario Inc.,

Fausto
    Carnicelli, Werner Dingfeld,

Halton
    Family Health Centre Inc.

And Stresa Gruppo Inc.

Plaintiffs by Counterclaim

(Appellants)

and

JBN
    Medical Diagnostic Services Inc.,

Jojaz
    Holdings Inc., William Nisker Holdings Inc.,

Joseph Berlingieri and
    William Nisker

Defendants by Counterclaim (Respondents)

Howard W. Reininger, for the appellants

Stuart M. Law, for the respondents

Heard: May 14, 2014

On appeal from the judgment of Justice Robert J. Nightingale
    of the Superior Court of Justice, dated August 21, 2013.

ENDORSEMENT

[1]

This appeal concerns the interpretation of a settlement agreement that
    resulted from a lawsuit about the personal appellants misappropriation of a
    business they owned jointly with the respondents. In accordance with the
    settlement agreement, the respondents obtained an accounting that indicated
    that the appellants owed an additional $528,113. The appellants disputed this
    accounting. As a result, the respondents brought a motion seeking an order that
    the appellants pay this amount under the settlement agreement. In the court
    below, Nightingale J. found in favour of the respondents and ordered the
    appellants to pay the additional $528,113 and partial indemnity costs for the
    entirety of the proceedings. The appellants now appeal.

[2]

The appellants grounds of appeal relate to the motion judges
    acceptance of the evidence from the respondents expert, an accountant named
    Mr. Mastroluisi. The appellants submit that the motion judge erred in finding
    there are additional monies owing to the respondents for:

1)

management fees,

2)

professional fees,

3)

benefits when payments
    were made by Halton Financial Health (HFH) from loans to HFH from the
    appellants.

[3]

In addition the appellants submit that the motion judges costs award
    should be varied and that the costs allowed for the expert should be varied as
    well.

[4]

We would not give effect to any of the appellants arguments. The issues
    raised are factual issues and deference is owed to the trial judges findings.
    The appellants submissions focus entirely on the alleged partiality of Mr.
    Mastroluisi and alleged frailties with his evidence. The appellants did not
    object to the admissibility of Mr. Mastroluisis report in the court below. While
    the appellants complain that the requirements of r 53.03(1) of the
Rules of
    Civil Procedure
concerning the admissibility of Mr. Mastroluisis report
    were not met, given that there was no objection to the admissibility of the
    report, the rule has no applicability here. The motion judge devoted
    considerable attention to assessing Mr. Mastroluisis credentials. Mr. Mastroluisis
    report was the only expert report adduced on the motion. The appellants chose not
    to file any expert report. The motion judge had a discretion as to how much
    weight to give to Mr. Mastroluisis report. He exercised that discretion and
    the appellants have not shown any error in principle on the part of the motion judge.
    The motion judge did not err in preferring Mr. Mastroluisis evidence to the
    evidence of Mr. Dingfeld, an interested party. The motion judges conclusions
    of fact are entitled to deference in the absence of palpable and overriding
    error. The appellants have in essence reargued the motion before us and have
    not pointed to any palpable and overriding error on the part of the motion judge.
    Similarly, the motion judge made no error in his award with respect to costs or
    expert fees.

[5]

Accordingly the appeal is dismissed. Costs of the appeal are to the
    respondents fixed in the amount of $18,000 inclusive of all disbursements and applicable
    taxes.

Karen
    M. Weiler J.A.

C.W.
    Hourigan J.A.

G.
    Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Kazakevicius v. Kazakevicius, 2014 ONCA 429

DATE: 20140526

DOCKET: C58128

Doherty, Simmons and Tulloch JJ.A.

BETWEEN

Janet Kazakevicius

Applicant (Appellant)

and

John Murray Kazakevicius and Christine Elizabeth Kazakevicius

Respondents (Respondents)

Paul S. Pellman and Dana Lue, for the applicant
    (appellant)

Allison Thornton and Scott Scambler, for the respondents
    (respondents)

Heard:  May 23, 2014

On appeal from the judgment of Justice Parayeski of the
    Superior Court of Justice, dated December 6, 2013.

APPEAL BOOK ENDORSEMENT

[1]

We think this was an appropriate case for summary judgment.

[2]

The appellant argues that the motion judge erred in holding that he did
    not have to determine who was to blame for the dysfunctional relationship
    between the appellant (grandmother) and the respondents (parents) to decide the
    motion.

[3]

In our view, the motion judge properly concluded that the assignment of
    blame would not assist in determining the best interests of the children.  That
    was of course the only question to be determined on the application.

[4]

The motion judges findings at paras. 7-11 were findings that could
    properly be made on this record having regard to the powers of a motion judge
    under Rule 16 of the
Family Law Rules
.  Those findings fully justified
    the dismissal of the application for access.

[5]

The appeal is dismissed.

[6]

Costs to the respondents in the amount of $6,000, inclusive of
    disbursements and relevant taxes.


COURT OF APPEAL FOR ONTARIO

CITATION: Kotecha v.
    Affinia Canada ULC, 2014 ONCA 411

DATE: 20140520

DOCKET: C57512

Doherty, Cronk and Hourigan JJ.A.

BETWEEN

Niranjan Kotecha

Plaintiff/Respondent

and

Affinia Canada ULC

Defendant/Appellant

Christopher A. Chekan, for the appellant Affinia Canada
    ULC

Pamela Krauss, for the respondent Niranjan Kotecha

Heard and released orally: April 24, 2014

On appeal from the orders of Justice P. B. Hambly of the Superior
    Court of Justice, both dated July 18, 2013.

ENDORSEMENT

[1]

The respondent, who worked for 20 years for the appellant, an auto
    manufacturer, commenced a simplified proceeding arising out of the termination
    of his employment.

[2]

The primary issue in the proceeding was the appropriate length of
    notice.  The motion judge granted the respondents motion for summary judgment
    and awarded 22 months pay in lieu of notice, in addition to the working notice
    provided.

[3]

On the issue of the actual working notice, we agree with the position of
    the appellant that the period of working notice was 11 weeks.

[4]

The appellant argues before this court that the motion judge erred in
    disregarding the unreported judgment of Taylor J. of the Superior Court in
Sharma
    v. Affinia Canada
and notes that on almost identical facts, the motion
    judge in
Sharma
awarded 13 months reasonable notice.  According to
    the appellant, the motion judge was bound by the doctrine by
stare decisis
to award a similar period of reasonable notice in this case.

[5]

We reject this ground of appeal. The principle of
stare decisis
requires that courts render decisions that are consistent with the previous
    decisions of higher courts:
Bedford v. Canada
, 2012 ONCA 186, at para.
    56. While other decisions of the Superior Court are persuasive, they are not
    binding as the appellant seems to suggest. Moreover, the determination of the
    appropriate notice period is a very fact-specific exercise and is calculated in
    accordance with numerous factors as set out in
Bardal v. Globe and Mail Ltd
.,
    [1960] O.J. No. 149, being the character of employment, the length of service,
    the age of the employee and the availability of other similar employment.

[6]

In the case at bar, the appellant had worked at the company for 20
    years, whereas, Ms. Sharma had worked there for 16 years. The appellant in this
    case was also eight years older than the plaintiff in the
Sharma
case.

[7]

The motion judge was entitled to consider the period of reasonable
    notice owing to the respondent on the basis of the facts before him, rather
    than blindly following a case with different facts.

[8]

Notwithstanding the foregoing, the court should strive to ensure that
    notice periods, which are inherently individual, are consistent with the case
    law. That was not done in this case.

[9]

In our view, the notice period in this case, totalling 24 and one-half
    months, is excessive and there are no exceptional circumstances that would
    justify this award.  However, we do not accept the appellants position that a
    13-month notice period is appropriate.

[10]

Having
    regard to the fact that the respondent is older than Ms. Sharma, that he
    has no realistic possibility of obtaining similar employment and that he had a
    longer tenure of service than Ms. Sharma, but considerably less than the
    plaintiff in
Di Tomaso v. Crown Metal Manufacturing Packaging Canada LP
,
    2010 O.J. No. 4414, we conclude that an appropriate notice period is 18 months.
    From this notice period, the 11 weeks working notice must be deducted.

[11]

The
    appeal is granted in part to adjust the notice period to 18 months, less the
    working notice of 11 weeks. We trust that the parties can calculate the
    appropriate adjustments to damages where necessary based on the foregoing.

[12]

With
    respect to the issue of costs, having regard to the history of the matter, the
    position taken by the employer, and given that the amount of notice determined
    to be appropriate in this case is far in excess of the position maintained by
    the appellant, we are of the view that nominal costs are appropriate in the
    circumstances. We award the appellant costs of the appeal in the amount of
    $2,500.00 inclusive of HST and disbursements.

[13]

After
    the hearing of this appeal, the appellant made a written submission that
    because the parties posthearing calculation of damages totalled $44,720.95,
    the respondent did not better his offer to settle of $50,000 served prior to the
    motion and, therefore, the motion judges award of costs on a substantial
    indemnity basis should be set aside.

[14]

It
    is evident from a review of the motion judges ruling on costs that, while he
    made reference to the offer to settle, he found that the conduct of the
    appellants counsel was unreasonable and awarded substantial indemnity costs
    pursuant to R. 20.06, which permits,
inter alia
, a motion judge to fix
    costs on a substantial indemnity basis where a party has acted unreasonably in
    responding to a motion for summary judgment. Accordingly, we decline to
    interfere with the motion judges costs award.

Doherty J.A.

E.A. Cronk J.A.

C.W. Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Landrus (Re), 2014 ONCA 371

DATE: 20140509

DOCKET: C57719

Laskin, Watt and Hourigan JJ.A.

IN THE MATTER OF: BENJAMIN LANDRUS

AN APPEAL UNDER PART XX.1 OF THE
CODE

Benjamin Landrus, appearing in person

Joseph Di Luca,
amicus curiae

Karen Papadopoulos, for the Crown

Barbara Walker-Renshaw, for the Person in charge of the
    Ontario Shores Centre for Mental Health Sciences

Heard: April 15, 2014

On appeal against the disposition of the Ontario Review
    Board dated, August 14, 2013.

By the Court:

A.

Overview

[1]

The appellant Benjamin Landrus was found not criminally responsible on
    account of mental disorder for a charge of aggravated assault.  He was admitted
    to Ontario Shores, where he is currently detained on the hospitals secure
    forensic unit.

[2]

On August 1, 2013, Mr. Landrus had an initial disposition hearing before
    the Ontario Review Board.  He represented himself, though he was assisted by
amicus
.
    He asked for an absolute discharge.  The hospital sought a hybrid disposition
    by which it would detain Mr. Landrus on the secure forensic unit with
    discretion to transfer him to the general forensic unit if appropriate.  The
    Crown opposed the hybrid disposition.

[3]

The Board released its disposition in mid-August, followed by written
    reasons in early September.  The Board rejected an absolute discharge, as it
    concluded that Mr. Landrus was a significant threat to the safety of the
    public.  The Board also rejected the hospitals request for a hybrid
    disposition.  Instead, it ordered that Mr. Landrus be retained on the secure
    forensic unit, but with privileges that include supervised access to the
    community.

[4]

In this court, Mr. Landrus accepted that an absolute discharge is not
    justified. However, he asked that he be placed on the general forensic unit,
    which would entitle him to greater privileges, including more access to the
    outdoors.
Amicus
submits that the Board erred in failing to make the
    hybrid disposition sought by the hospital for two reasons:

(1)

The Board failed to explain why a
    hybrid disposition was contrary to public safety; and

(2)

In rejecting a hybrid disposition,
    the Board improperly relied on Mr. Landruss request for an absolute discharge
    as evidence of his dangerousness.

B.

Background

[5]

Mr. Landrus is 30 years old.  He is a very intelligent young man.  He
    functions in the very superior range of mental ability, at the 99.9
    percentile.  He had a largely happy childhood.  He was raised by his parents,
    both of whom worked for the Toronto District School Board as psychologists.

[6]

Concerns about Mr. Landruss mental health first surfaced in 2006.  He
    was diagnosed with psychosis, then with schizophrenia, paranoid type.

[7]

The index offence, which is described in detail in the Boards reasons,
    occurred on November 3, 2012.  Mr. Landrus attacked his father and hit him with
    a cricket bat.  Mr. Landrus told us that this is the only time he has acted
    violently.

[8]

Since Mr. Landrus has been at Ontario Shores, he has been treated by Dr.
    Coleman, who testified at the Board hearing.  In her opinion, Mr. Landrus posed
    too high a risk to be transferred to the general forensic unit; he needed the
    support available to him on the secure forensic unit.  She was concerned that
    if Mr. Landrus came into contact with his father, Mr. Landrus would harm him.
    She hoped that Mr. Landrus would benefit from his medication but did not expect
    him to be in complete remission or even see significant improvement until he was
    on a higher dose for a longer period of time.

[9]

The hospital report notes that Mr. Landrus variably endorsed auditory
    hallucinations, stating that he heard his fathers voice or a number of voices
    that cause him anxiety.  The report also notes that Mr. Landrus maintained
    fixed delusions of his father controlling him by sound or radio waves externally
    and raping and murdering people.  The clinical risk assessment in the hospital
    report indicates that the appellant continues to harbor paranoid delusions
    that his father, the victim of the index offence, is murdering and raping
    others.  The hospital report concludes that Mr. Landrus is at a high risk for
    further violence.

C.

Discussion

[10]

We
    agree with the Boards finding that Mr. Landrus continues to pose a significant
    threat to the safety of the public.  Moreover, although Mr. Landrus asked for a
    transfer to the general forensic unit, we are satisfied that the evidence
    before the Board fully supports his detention on the secure forensic unit.
    Thus, the only issue before us is whether the Boards rejection of the hybrid
    disposition sought by the hospital was unreasonable.  We therefore turn to the
amicus
s
    two submissions on this issue.

(1)

Did the Board fail to explain why a hybrid disposition was contrary to
    the safety of the public?

[11]

The
    Board concluded that a hybrid disposition was premature.  It said:

The Board agrees with counsel for the Attorney General that it
    is much too early to grant Mr. Landrus the benefit of a Hybrid Order given the
    fact [that] he has only recently started to take medications and his treatment
    is in very early stages. Mr. Landrus has been a reluctant participant in
    treatment and the doctor in her evidence said it was possible he might well
    discontinue taking medications.

[12]

In
    our view, the Boards finding was reasonable and therefore entitled to
    deference from this court.  The Board was entitled to come to its own
    conclusion about whether a non-hybrid disposition on the secure forensic unit
    was the least onerous and least restrictive disposition.  In reaching its
    conclusion, the Board was justified in taking into account that Mr. Landrus was
    in the early stages of treatment.  The prematurity of a hybrid disposition was
    a valid reason for not granting it.

[13]

Moreover,
    in practice, the difference between the Boards disposition and the disposition
    sought by the hospital is negligible.  Mr. Landrus has not yet shown the
    improvement that would justify even contemplating a transfer to the general
    forensic unit.  And his hearing date (his annual review) is but a few months
    away.  For these reasons, the Boards disposition was reasonable.

(2)

Was the Boards reliance on Mr. Landruss request for an absolute
    discharge improper?

[14]

After
    rejecting the hybrid disposition sought by the hospital, the Board said the
    following:

It remains to be seen whether or not Mr. Landrus will
    participate in psycho-educational programs and cooperate with respect to
    treatment at Ontario Shores and it is noteworthy that his application for an
    Absolute Discharge at this stage of his hospitalization shows a complete lack
    of judgement or understanding with respect to his situation or his mental
    illness.  Mr. Landrus at the hearing repeatedly asked for evidence with respect
    to his symptomatology notwithstanding the fact that he has sought out
    medications for same and that his symptoms are well documented in the various
    reports and clearly expressed at the hearing by Dr. Coleman.

[15]

As
amicus
submitted and the Crown fairly acknowledged, these comments
    were improper.  Mr. Landrus was entitled to ask for an absolute discharge and
    was entitled to ask for the evidence that supported the hospitals position.
    The Board was not justified in relying on the position Mr. Landrus took at the
    hearing to buttress its findings.  Although the Board erred in doing so, its
    error was of no consequence as it had already determined that it would not
    grant a hybrid disposition  a determination we have found to be reasonable.

[16]

Accordingly,
    the appeal is dismissed.

Released: May 9, 2014 (J.L.)

John Laskin J.A.

David Watt J.A.

C.W. Hourigan J.A.