COURT OF APPEAL FOR ONTARIO

CITATION: Rossman v. Canadian Solar Inc., 2019 ONCA 992

DATE: 20191217

DOCKET: C66458

MacPherson, Pepall and Lauwers JJ.A.

BETWEEN

Noah Rossman

Plaintiff (Respondent)

and

Canadian Solar Inc. and Canadian Solar Solutions
    Inc.

Defendants (Appellants)

Sean G. Foran and Aisling Flarity, for the appellants

Eytan Rip, for the respondent

Heard: October 24, 2019

On appeal from the order of Justice Marc R. Labrosse of
    the Superior Court of Justice, dated December 14, 2018, with reasons reported
    at 2018 ONSC 7172.

MacPherson J.A.:

A.

introduction

[1]

The issue in this appeal is the enforceability of a termination clause
    in a written contract of employment. On a motion for summary judgment, Labrosse
    J. held that the termination clause in Noah Rossmans operative employment
    agreement was void and unenforceable because it was ambiguous and potentially
    contravened the
Employment Standards Act, 2000
, S.O. 2000, c. 41 (
ESA
).
    Accordingly, the motions judge determined that Mr. Rossman was entitled to
    termination in accordance with common law principles which he fixed at five
    months. The employer, Canadian Solar Inc. and Canadian Solar Solutions Inc. (collectively,
    Canadian Solar), appeals.

B.

facts

(1)

The parties and events

[2]

Mr. Rossman began his employment with Canadian Solar in May 2010. The
    parties entered into an employment agreement on May 6, 2010 (the 2010
    Employment Agreement). Mr. Rossman started as a Regional Sales Manager with a
    base salary of $67,000 and entitlement to sales commissions.

[3]

On August 22, 2012, Canadian Solar sent Mr. Rossman a new employment
    contract (the 2012 Employment Agreement) that transferred him to a project management
    role. The new salary was $82,500 with benefits and a potential bonus
    entitlement up to a maximum of 20 per cent of his base salary. There was no
    commission component in this second contract.

[4]

Prior to signing the 2012 Employment Agreement, Mr. Rossman received
    advice from a lawyer and discussed the contract with his brother-in-law, who
    was an in-house counsel at a corporation. Mr. Rossman signed this contract on
    August 29, 2012.

[5]

Both the 2010 Employment Agreement and the 2012 Employment Agreement
    included the same termination clause (the Termination Clause):

9. Termination of Employment

9.01 The parties understand and agree that employment pursuant
    to this agreement may be terminated in the following manner in the specified
    circumstances:

(c) by the Employer, after the probation period, in its
    absolute discretion and for any reason on giving the Employee written notice
    for a period which is the greater of:

(i) 2 weeks, or

(ii) In accordance with the provisions of the
Employment
    Standards Act (Ontario)
or other applicable legislation,

or on paying to the Employee the equivalent termination pay in
    lieu of such period of notice. The payments contemplated in this paragraph
    include all entitlement to either notice of pay in lieu of notice and severance
    pay under the
Employment Standards Act Ontario
.
In
    the event the minimum statutory requirements as at the date of termination
    provide for any greater right or benefit than that provided in this agreement,
    such statutory requirements will replace the notice or payments in lieu of
    notice contemplated under this agreement
. The Employee agrees to accept
    the notice or pay in lieu of notice as set out in this paragraph as full and
    final settlement of all amounts owing by the Employer on termination, including
    any payment in lieu of notice of termination, entitlement of the Employee under
    any applicable statute and any rights which the Employee may have at common
    law, and the Employee thereby waives any claim to any other payment or benefits
    from the Employer.
Benefits shall cease 4 weeks from the
    written notice
. [Emphasis added.]

[6]

Canadian Solar terminated Mr. Rossman without cause on February 12,
    2014. Mr. Rossman commenced an action against Canadian Solar, seeking damages
    for wrongful dismissal and the payment of a significant amount in commissions
    he claims Canadian Solar owes him.

[7]

The parties brought competing motions for summary judgment.

[8]

Canadian Solar moved first seeking the dismissal of the action or, in
    the alternative, judgment against Canadian Solar in favour of Mr. Rossman in
    the amount of $16,560.

[9]

Mr. Rossman brought a cross-motion seeking an order for partial summary
    judgment on his claim for damages for lost wages based on a reasonable notice
    period.

(2)

The motions judges decision

[10]

Canadian Solar raised three issues before the motions judge  the
    applicability of the Entire Agreement Clause in the 2012 Employment Agreement, Mr.
    Rossmans entitlement to commissions, and the enforceability of the Termination
    Clause in the 2012 Employment Agreement. The third issue was also in play on Mr.
    Rossmans cross-motion for summary judgment.

[11]

The motions judge found that the first two issues raised by Canadian
    Solar were not properly addressed in a summary judgment motion and were
    important issues requiring a trial. However, the motions judge granted partial
    summary judgment for Mr. Rossman on the third issue of the enforcement of the
    Termination Clause. He found the Termination Clause to be void and
    unenforceable for the following reasons:

This final sentence [Benefits shall cease 4 weeks from the
    written notice] is clearly either ambiguous as it flies in the face of the
    rest of the provision or it is an attempt to contract out of the minimum
    standards under the
ESA
by limiting benefits to four weeks regardless
    of the term of employment.

[12]

Accordingly, applying common law principles, the motions judge
    determined that Mr. Rossman was entitled to five months reasonable notice of
    his termination.

[13]

Canadian Solar appeals from this component of the motions judges
    decision. It does not say that this issue can only be determined following a
    trial. It does say that the decision is wrong in law.

C.

issue

[14]

There is a single issue on this appeal: did the motions judge err by
    holding that the Termination Clause was void and unenforceable?

D.

analysis

[15]

In my view, the motions judge did not err. The Termination Clause was
    void at the outset, which alone suffices to dispose of the appeal. Even if that
    were not the case, the Termination Clause contains genuine ambiguity, and is
    therefore void and unenforceable.

(1)

Leading umbrella cases in employment law

[16]

Before engaging with the substance of the appeal, the fundamental
    principles underpinning employment law bear repeating. The issue raised in this
    appeal is an important one. It is of personal significance to Mr. Rossman, and
    it is of central importance to employees, who need to know with certainty when
    an employer may terminate their employment:
Machtinger v. Hoj Industries
    Ltd.
, [1992] 1 S.C.R. 986, at pp. 990-91.

[17]

At common law, there is a longstanding presumption that an employer
    cannot terminate employment without reasonable notice. This presumption is
    rebutted if the contract of employment clearly specifies some other period of
    notice, whether expressly or impliedly:
Machtinger
, at p. 998. To
    rebut this presumption, in Ontario, employers and employees are free to
    contractually agree to any notice period, provided the agreement respects the
    minimum standards stipulated in the
ESA
. Explaining this point, Laskin
    J.A. emphasized that if the contractual notice period runs afoul of the
ESA
,
    then the presumption is not rebutted, and the employee is entitled to
    reasonable notice of termination:
Wood v. Fred Deeley Imports Ltd.
,
    2017 ONCA 158, at para. 16. Should that occur, an employee would be entitled to
    pay in lieu of notice for the reasonable period under the common law:
Andros
    v. Colliers Macaulay Nicolls Inc.
, 2019 ONCA 679, at para. 18;
Amberber
    v. IBM Canada Ltd.
, 2018 ONCA 571, at para. 40.

[18]

The
ESA
specifies the minimum employment standards that
    employers are obligated to follow: ss. 1(1), 5(1), and 57. Unless a provision
    provides a greater benefit to an employee, parties cannot contract out of
    these employment standards:
ESA
, s. 5(2); see also
Andros
, at
    para. 19. As this court has stressed repeatedly, if a provision within a
    termination clause conflicts with the minimum standards prescribed by the
ESA
,
    it is not open to this court to simply strike out the offending provision. In
    that situation, the entire termination clause is void. If even one provision
    contravenes the
ESA
and fails

to [substitute] a greater
    benefit, that alone will render the termination clause void and unenforceable:
Wood
, at para. 21;
Andros
, at para. 20.

[19]

This point is a central consideration in the present appeal because it
    concerns an employment contract for an indefinite period. On that basis, the
    Termination Clause must be read together with s. 57(h) of the
ESA
,
    which stipulates that employees are entitled to a notice period of eight weeks
    for employment of eight years or more, to determine its validity and
    enforceability. I will return to this point in my reasons below.

[20]

It is well-established, as Laskin J.A. reiterated in
Wood
, that
    courts interpret employment agreements differently from other commercial
    agreements: at para. 26. There are significant reasons for this distinction.

[21]

First, work is a vital aspect of the human condition. Dickson C.J.
    captured its fundamental import in
Reference re Public Service Employee
    Relations Act (Alberta)
, [1987] 1 S.C.R. 313, at p. 368:

Work is one of the most fundamental aspects in a persons life,
    providing the individual with a means of financial support and, as importantly,
    a contributory role in society. A persons employment is an essential component
    of his or her sense of identity, self-worth and emotional well-being.

[22]

Second, employees are most vulnerable at the moment of termination. As
    expressed by Iacobucci J. in
Wallace v. United Grain Growers Ltd.
,
    [1997] 3 S.C.R. 701, at para. 95:

The point at which the employment relationship ruptures is the
    time when the employee is most vulnerable and hence, most in need of
    protection.

[23]

This crucial fact led Laskin J.A. in
Wood
to enunciate several
    considerations relevant to the interpretation and enforceability of a
    termination clause, at para. 28:

·

When employment agreements are made, usually employees have less
    bargaining power than employers. Employees rarely have enough information or
    leverage to bargain with employers on an equal footing.

·

Many employees are likely unfamiliar with the employment
    standards in the
ESA
and the obligations the statute imposes on
    employers. These employees may not seek to challenge unlawful termination
    clauses.

·

The
ESA
is remedial legislation, intended to protect the
    interests of employees. Courts should thus favour an interpretation of the
ESA
that "encourages employers to comply with the minimum requirements of the
    Act" and "extends its protections to as many employees as
    possible", over an interpretation that does not do so.

·

Termination clauses should be interpreted in a way that
    encourages employers to draft agreements that comply with the
ESA
. If
    the only consequence employers suffer for drafting a termination clause that
    fails to comply with the
ESA
is an order that they comply, then they
    will have little or no incentive to draft a lawful termination clause at the
    beginning of the employment relationship.

·

A termination clause will rebut the presumption of reasonable
    notice only if its wording is clear. Employees should know at the beginning of
    their employment what their entitlement will be at the end of their employment.

·

Faced with a termination clause that could reasonably be
    interpreted in more than one way, courts should prefer the interpretation that
    gives the greater benefit to the employee. [Citations omitted.]

[24]

Additional principles guide the court in situations of ambiguity. In the
    present appeal, the parties disagree on whether the Termination Clause is
    ambiguous. The motions judge found that the last sentence of the Termination
    Clause was clearly either ambiguous as it flies in the face of the rest of the
    provision or it is an attempt to contract out of the minimum standards under
    the
ESA
. If the final sentence renders the Termination Clause
    ambiguous, then the
contra proferentem
rule requires this court to adopt
    an interpretation favourable to Mr. Rossman. However, the
contra
    proferentem
rule will only apply if there is genuine ambiguity. Competing
    interpretations alone fail to satisfy this threshold:
Amberber
, at
    para. 45. Rather, the court must undertake an objective analysis of whether at
    least two reasonable interpretations exist:
Amberber
, at para. 45.

(2)

The Termination Clause is void and unenforceable

(a)

Intention to contract out of the
ESA

[25]

I agree with the motions judge that the Termination Clause was void at
    the outset. On its face, the Termination Clause contravened the notice
    provisions of the
ESA
. The appropriate focus of this inquiry is the
    nature of the employment contract at the time of execution. If the Termination
    Clause is not onside with notice provisions  of the [ESA] at the outset, then
    it is void and unenforceable.
Potential violation in the
    future is sufficient
 (emphasis added):
Garreton v. Complete
    Innovations Inc.
, 2016 ONSC 1178, at para. 27.

[26]

The impugned provision in the present appeal states, Benefits shall
    cease 4 weeks from the written notice (the four-week benefits clause). On
    its face, this language flies in the face of the
ESA
.

[27]

Canadian Solar submits that the four-week benefits clause provided Mr.
    Rossman with more generous benefits than those statutorily prescribed if he were
    terminated in the first three years of his employment. In addition, Canadian
    Solar acknowledges that a problem would arise if it had terminated Mr. Rossman
    after four (or more) years of employment. However, Canadian Solar terminated
    Mr. Rossman just under two years after he signed the 2012 Employment Agreement
    and even only three years and nine months after he signed the 2010 Employment
    Agreement. Hence there is no
prima facie
or possible violation of the
    notice periods in the
ESA
.

[28]

In my view, it is not open to this court to save the impugned provision
    of the 2012 Employment Agreement with the benefit of hindsight. As Doherty J.A.
    stated, the Termination Clause must be read as a whole and in the context of
    the circumstances
as they existed when the agreement was
    created
 (emphasis added):
Dumbrell v. Regional Group of Companies
    Inc.
, 2007 ONCA 59, at para. 53.

[29]

Accordingly, it is irrelevant whether the impugned provision accords
    with the minimum employment standards in certain circumstances. The employment
    contract was for an indefinite period. As such, the benefit period needed to
    run for a minimum of eight weeks to comply with the outermost eight-week minimum
    statutory notice period:
ESA
, s. 57(h). It did not. It is therefore
    void and unenforceable.

(b)

The Termination Clause is ambiguous

[30]

The Termination Clause is ambiguous, and the ambiguity is not erased by
    the saving provision.

[31]

In making its submission on this point, Canadian Solar relies heavily on
Amberber
, a case in which this court held that a motion judge erred by
    finding ambiguity in a termination provision. In reaching this decision, relying
    on
Machtinger
, this court said that employment contracts can referentially
    incorporate the minimum notice requirements of employment standards
    legislation, or otherwise take into account later changes to such acts: at
Amberber
,
    para. 53.

[32]

In
Amberber
, the saving provision was, at para. 13:

In the event that the applicable provincial employment standard
    legislation provides you with superior entitlements upon termination of
    employment (statutory entitlements) than provided for in this offer of
    employment, IBM shall provide you with your statutory entitlements in substitution
    for your rights under this offer of employment.

[33]

In the present case, the saving provision is:

In the event the minimum statutory requirements as at the date
    of termination provide for any greater right or benefit than that provided in
    this agreement, such statutory requirements will replace the notice or payments
    in lieu of notice contemplated under this agreement.

[34]

I agree that these two saving provisions are virtually identical. There
    is, however, a crucial difference between the termination clauses in the two
    employment contracts. In the present case, there is this terse and final
    sentence in the Termination Clause: Benefits shall cease 4 weeks from the
    written notice. There is no similar language in the employment contract at
    issue in
Amberber
. Accordingly, the 2012 Employment Agreement
    contains, as the motions judge found, a genuine ambiguity created by the
    duelling language in the Termination Clause  the initial
ESA
trumps
    language versus the concluding but nothing above 4 weeks language.

[35]

Unlike the rest of the language in the Termination Clause, the four-week
    benefits clause is not future facing, nor does it express an intention to
    conform to the
ESA
. It cannot be the case that the saving provision here
     designed to make the Termination Clause compatible with future changes to the
ESA
 could reconcile a conclusory provision that is in direct
    conflict with the
ESA
from the outset.

[36]

In this regard, the motions judges interpretation of the Termination
    Clause is entitled to deference:
Wood
, at para. 17;
Creston Moly
    Corp. v. Sattva Capital Corp.
, 2014 SCC 53, at para. 54. The motions judge
    properly instructed himself to interpret the Termination Clause as a whole. He
    was attentive to the entire Termination Clause and attempted to reconcile the
    four-week benefits clause with the saving provision. In doing so, he drew an
    important distinction between language in the Termination Clause that respected
    the intention of the
ESA
and terms that indicated an intention to
    contract out of the
ESA
s minimum statutory requirements, namely, the
    four-week benefits clause.

[37]

Finally, I observe that this courts recent decision in
Andros
is directly applicable to the interpretation of the Termination Clause in the
    present appeal. In
Andros
, the motion judge found that the termination
    clause was unclear as to whether the two notice provisions respected the
    minimum statutory requirements: at para. 8. Fairburn J.A. noted that since the
    provisions breached the
ESA
, it was unnecessary for the motion judge
    to consider whether the termination clause was ambiguous. However, she
    addressed the question of ambiguity because the parties raised it. In doing so,
    she determined that the motion judge correctly found that, at best, the clauses
    were ambiguous because the employee would not have known with certainty what
    his entitlements at the end of his employment would be: at para. 31. It is a
    longstanding principle in employment law that Employees should know at the
    beginning of their employment what their entitlement will be at the end of
    their employment:
Wood
, at para. 28.

[38]

As was the case in
Andros
, when Mr. Rossman signed the 2012
    Employment Agreement, he could not have known with certainty whether the
    minimum statutory requirements would apply to the four-week benefits period,
    especially if he were terminated after four (or more) years of employment.
    Accordingly, the final sentence of the Termination Clause is ambiguous and therefore
    void and of no effect.

(3)

Policy rationale

[39]

I make a final observation. Employees need to know the conditions,
    including entitlements, of their employment with certainty. This is especially
    so with respect to an employees termination  a fragile moment of stress and
    uncertainty.

[40]

In this context, saving provisions in termination clauses cannot save
    employers who attempt to contract out of the
ESA
s minimum standards.
    Holding otherwise creates the risk employers will slip sentences, like the four-week
    benefits clause, into employment contracts in the hope that employees will
    accept the terms. This outcome exploits vulnerable employees who hold unequal
    bargaining power in contract negotiations. Moreover, it flouts the purpose of
    the
ESA
 to protect employees and to ensure that employers treat them
    fairly upon termination:
Machtinger
, at pp. 1002-3.

[41]

While employers are entitled to contractually amend the
ESA
s
    notice requirements, as long as they respect the minimum standards, they are
    not entitled to offend them. Employers must have an incentive to comply with
    the
ESA
s minimum notice requirements. They cannot be permitted to
    draft provisions that capitalize on the fact many employees are unaware of
    their legal rights and will often refrain from challenging notice provisions in
    court:
Machtinger
, at p. 1004. Attempting to reconcile the provisions
    of the Termination Clause with the benefit of hindsight runs counter to the
    remedial purpose of the
ESA
.

E.

Disposition

[42]

I would dismiss the appeal. Mr. Rossman is entitled to his costs of the
    appeal which I would fix, in accordance with the agreement of counsel, at
    $12,000, inclusive of disbursements and HST.

Released: JCM DEC 17 2019

J.C. MacPherson
    J.A.

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

I agree. P. Lauwers
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Savage v. Savage, 2019 ONCA 984

DATE: 20191213

DOCKET: C66077

Rouleau, Roberts and
    Harvison Young JJ.A.

BETWEEN

Carla Linn Savage

Applicant (Appellant)

and

Michael Anthony Savage

Respondent (Respondent)

Josh Glieberman, for the appellant

Michael H. Tweyman, for the respondent

Heard: November 13, 2019

On appeal from the order of
    Justice Susan Woodley of the Superior Court of Justice, dated September 26,
    2018.

REASONS FOR DECISION

A.

Overview

[1]

The appellant appeals an order which terminated the spousal support
    payable to her by the respondent. She appeals on the grounds that, first, the
    trial judge erred in finding that the respondents retirement had constituted a
    material change in circumstances, and second, that even if she did not err in
    so finding, the trial judge erred in terminating spousal support in the
    circumstances.

[2]

For the following reasons, the appeal is dismissed.

B.

Factual Background

[3]

The facts may be briefly summarized. The parties separated in 2012
    following an approximately 25-year marriage which produced three children who
    are now adults. In 2015, shortly before a scheduled trial, the parties settled
    the outstanding issues between them as set out in the consent order of Nicholson
    J. (the consent order). This order equalized the parties assets and provided
    for the payment of non-term limited spousal support by the respondent to the appellant
    in the amount of $1,650 per month. Notably, the order provided that either
    party could seek a change in spousal support based on material change, whether
    the change was foreseen or foreseeable, unforeseen or unforeseeable.

[4]

The respondent brought a motion to change in March 2017 on the basis
    that he intended to retire. On December 31, 2017, at age 57, the respondent retired
    with a full pension. The appellant had retired from her public service position
    in May 2017 when she was 56 and eligible for a full pension.

C.

The Reasons Below

[5]

The trial judge found that the respondents retirement constituted a
    material change in circumstances. She set out the test as whether a change had
    occurred which, if known at the time of the last order, would have resulted in
    a different outcome. Having found a material change in circumstances, she then considered
    the means and needs of the parties pursuant to s. 17 of the
Divorce Act
,
    R.S.C. 1985, c. 3 (2
nd
Supp.). Given her assessment, she terminated
    the support obligation.

D.

Law and Analysis

[6]

The appellant agrees that, in order to succeed on this appeal, she must
    demonstrate an error in principle, a significant misapprehension of the
    evidence, or that the award is clearly wrong:
Hickey v. Hickey
, [1999]
    2 S.C.R. 518, at para.  11.

(1)

The Trial Judge Did Not Err in Finding a Material Change

[7]

The appellant argues that the respondents retirement was early,
    voluntary and unreasonable and could not therefore constitute a material
    change. She argues that the fact that the original consent order did not
    reference retirement should be taken to mean that it was specifically exempt
    from consideration as a material change. She emphasizes that the respondent had
    wanted a clause that specifically provided that his retirement would constitute
    a material change in circumstances. That clause was not agreed to and was not
    included in the order.

[8]

We disagree with the appellants position. The trial judge considered
    all the evidence before her on this issue which was fully argued. She observed
    that the original consent order did not reference retirement at all. She noted,
    however, that the consent order did provide that either party could request a
    review or change to spousal support in the event of a material change, whether
    foreseen or foreseeable, unforeseen or unforeseeable. She found that in the
    circumstances of this case, the respondents retirement constituted a material
    change.

[9]

The case law cited by the appellant can be distinguished. For example,
    in
Haworth v. Haworth
, the order expressly provided for spousal
    support to be paid each and every month thereafter until the [payee] dies:
    2018 ONCA 1055, 145 O.R. (3d) 74, at para. 18, leave to appeal refused, [2019]
    S.C.C.A. No. 149. By contrast, the consent order in this case anticipated that
    the support issue could be reopened if the circumstances materially changed,
    even if this change was foreseeable.

[10]

In addition, the trial judge declined to find that the respondent had
    opted for early retirement at age 57 in order to avoid paying spousal support.
    She considered the circumstances, including the 27-year span of his teaching
    career, the drain inherent in the teaching profession and his evidence that
    retiring when he became eligible for a full pension had been a goal that had
    pushed him to continue teaching. She also found that his decision to retire
    based on eligibility for a full pension could not be said to be unreasonable in
    light of the fact that the appellant herself had retired at age 56 in 2017 on
    the same basis. She specifically noted that there was no evidence that he had
    retired to avoid spousal support. The respondent had planned to retire when he
    became eligible for a full pension upon the rule of 85 and the trial judge accepted
    his evidence (which was contrary to the appellants evidence on the point) that
    the appellant knew this.

[11]

These factual findings were open to the trial judge on the evidence
    before her. In particular, the appellants submission that the trial judge erred
    in placing insufficient weight on the absence of a reference to retirement in
    the consent order must be rejected. The trial judge considered the evidence
    before her and applied the correct law in interpreting the consent order.

(2)

The Trial Judge Did Not Err in Terminating Support

[12]

The appellant argues that the trial judge erred in terminating support. The
    heart of her argument is that five years of spousal support was insufficient
    compensation for her income (and thus pension) disadvantages that arose from their
    marriage. They had been married for over 25 years during which time the
    appellant took maternity leaves and worked part-time. She says that the trial
    judge erred in considering the net worth of the parties as part of the needs
    and means analysis. At the time of the trial, the respondent had pension income
    of $49,538 annually of which $9,572 had not been equalized. However, he had no
    capital assets. The appellants pension income was $29,300.28 annually of which
    $3,864 had not been equalized but she had approximately $500,000 in
    investments.

[13]

We see no error in the trial judges consideration of the parties
    assets and her finding that income from capital should be imputed to the
    appellant. It was relevant to an assessment of the relative incomes of the
    parties. While it might have been preferable for the trial judge to indicate
    precisely what amounts she was imputing to the appellant for income from
    capital, it is clear from the percentage figures to which she refers that the
    result of the application of a reasonable return rate would effectively
    equalize the parties pension incomes.

[14]

The trial judge also referred to the fact that the appellant has
    repartnered under the heading of Means and Needs as follows:

In addition to imputing income to
    Carla on account of her capital assets, income may be imputed to Carla on
    account of the financial benefits that she receives as a result of her re-partnering
    .

[15]

The appellant argues that this constitutes an error in that the trial
    judge imputed income to the appellant on the basis that she is living with a
    new partner, despite the fact that the new relationship was only approximately two
    and a half years old. We disagree. Viewed in context, it is apparent that the
    trial judge did no more than consider this financial benefit as a general
    factor in assessing the parties means and needs. She stated only that income
    may be imputed on this basis but there is no indication that she actually did
    so. As noted earlier, the income that the appellant can reasonably generate
    from her capital is more than sufficient to cover any disparity in the parties
    retirement income.

[16]

The appellant also argues that in terminating support, the trial judge
    failed to apply the fact that spousal support had been grounded in the
    compensatory rationale. She accepted the appellants evidence that her shorter
    work week had been for the benefit of the family and that this had given rise
    to an economic disadvantage on the breakdown of the marriage which led to lower
    income and pension payments. She also found, however, that this economic
    disadvantage had been fully compensated for by the respondent through both the
    equalization of their assets and the spousal support that had been paid by the
    time of the trial. This finding was open to her on the record, and it is not
    the role of this court to revisit such determinations absent palpable and
    overriding error. We note that this is not a case like some of those cited by
    the appellant where the recipient spouse is disabled or has no income of her
    own, or where the income disparity is very significant.

E.

Conclusion

[17]

The appellant has not demonstrated any error on the part of the trial
    judge in finding that the respondents retirement was a material change and
    that the spousal support should be terminated.

[18]

The appeal is therefore dismissed.

[19]

The appellant shall pay costs of the appeal to the respondent in the
    amount of $7,500 inclusive.

Paul Rouleau J.A.

L.B. Roberts J.A.

A. Harvison Young
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Sosnowski v. MacEwen Petroleum Inc., 2019 ONCA 1005

DATE: 20191220

DOCKET: C66914

Watt, Hourigan and Trotter JJ.A.

BETWEEN

Leslie
    Sosnowski and Theresa Sosnowski

Plaintiffs

(Appellants)

and

MacEwen Petroleum Inc.
and Richard Joseph
    Paul Bourdeau

Defendant

(
Respondent
)

Gustavo Camelino, for the appellants

Porter Heffernan and Joël Rocque, for the respondent

Heard: November 27, 2019

On appeal from the judgment of Justice Helen MacLeod-Beliveau
    of the Superior Court of Justice, dated April 11, 2019, with reasons reported
    at 2019 ONSC 1860.

Hourigan J.A.:

Introduction

[1]

At issue on this appeal is the interpretation of s. 5(1)(a)(iv) of the
Limitations
    Act
, 2002, S.O. 2002, c. 24, Sched. B, the so-called appropriate means
    provision.  That subsection provides that a claim is not discovered until the
    day on which a putative plaintiff first knows that a proceeding would be an
    appropriate means to seek to remedy an injury, loss, or damage.

[2]

The appellant commenced an action for wrongful dismissal approximately
    six years after he was dismissed for cause by his employer, the respondent,
    MacEwen Petroleum (MacEwen). On a summary judgment motion brought by MacEwen
    to dismiss the action as statute-barred, the appellant submitted that he did
    not know if an action was the appropriate means to seek a remedy until related
    criminal proceedings had been resolved. The motion judge rejected the
    appellants argument and dismissed the action. In so ruling, she distinguished
    this courts decision in
Winmill v. Woodstock (Police Services Board)
,
    2017 ONCA 962, 138 O.R. (3d) 641, leave to appeal refused, [2018] S.C.C.A. No.
    39.

[3]

On appeal, the appellant submits that the motion judge erred in
    distinguishing
Winmill
and in finding that he knew before the
    completion of the criminal proceeding that litigation was the appropriate means
    to seek redress. These reasons explain why I would dismiss the appeal.

Facts

[4]

The appellant began working as a fuel delivery truck driver for MacEwen
    in 1996. In November 2009, MacEwen received an anonymous tip that one of its
    drivers was involved in the theft of its fuel. It began an internal
    investigation that ultimately found that the appellant had committed several
    acts of theft.

[5]

On November 9, 2009, MacEwen terminated the appellant for cause. That
    day, the appellant retained counsel, the respondent Richard Bourdeau, who
    requested further details from MacEwen regarding the appellants termination.
    On May 6, 2010, the appellant retained a second lawyer who wrote to MacEwen in
    May and June of 2010, asserting that the appellant had been wrongfully
    dismissed and was entitled to damages. The appellant did not commence an action
    for wrongful dismissal at that time.

[6]

The appellant was criminally charged on July 7, 2010, and convicted on
    August 15, 2011, of three counts of theft and three counts of fraud. He
    appealed his convictions, and this court acquitted him on all counts on
    November 26, 2014. The appellant commenced an action for wrongful dismissal
    against MacEwen and in negligence against Mr. Bourdeau on July 24, 2015.
[1]

[7]

MacEwen brought a motion for summary judgment on the basis that the
Limitations
    Act
barred the appellants action. The motion hinged on whether the
    appellant knew that it was appropriate, for the purposes of s. 5(1)(a)(iv) of
    the
Limitations Act
, to commence a civil proceeding. The motion judge
    rejected the argument that the appellant did not know it was appropriate until
    the criminal proceedings had concluded. She found that the appellant knew, or
    with reasonable diligence ought to have known, that he had a claim against
    MacEwen at the time of his dismissal on November 9, 2009.

[8]

The appellant submits that until the criminal proceedings were
    completed, he did not know if he had a viable claim. If he were ultimately
    convicted, his claim for wrongful dismissal would have had little chance of
    success because it would have been proven beyond a reasonable doubt that he had
    committed multiple thefts against his employer. Therefore, according to the
    appellant, it made sense to await the outcome of the criminal proceeding before
    deciding whether to commence his action.

Analysis

[9]

In considering the appellants argument, I will review the origins of
    the current
Limitations Act
, the jurisprudence regarding the
    appropriate means provision, and this courts decision in
Winmill
. I
    will then apply the relevant legal principles to this case.

(i)

The
Limitations Act

[10]

In 1969, the Ontario Law Reform Commission in its

Report on
    Limitation of Actions

said the following about Ontarios law of
    limitations at that time, at p. 7:

To the lawyer, Ontarios limitation laws are, at the very
    least, perplexing. They introduce an element of hazard into the practice of law
    which is quite unnecessary.

To the ordinary citizen, these laws are beyond comprehension.
    It is he, of course, who really suffers in their application.

[11]

There was widespread acknowledgement in the civil bar even then that
    reform of Ontarios limitations law was long overdue. The patchwork of various
    limitations and the lack of uniformity in how they were interpreted resulted in
    uncertainty both for the bar and the public. Over the course of the next 30
    years, successive Ontario governments made efforts to reform the law. After
    many starts and stops, in 2002, the current
Limitations Act
was passed
    in the provincial legislature. It was heralded as a significant reform of the
    existing law of limitations. It was hoped that the new legislation would reduce
    the number of limitations-related motions and negligence claims against lawyers
    by bringing certainty and consistency to this area of the law.
[2]

[12]

Two of the most significant changes in the new
Limitations Act
were found in ss. 4 and 5. Section 4 introduced a new basic limitation period
    of two years:

4
Unless this Act provides otherwise, a
    proceeding shall not be commenced in respect of a claim after the second
    anniversary of the day on which the claim was discovered.

[13]

In s. 5, the legislature attempted to codify the existing jurisprudence
    on the discoverability of claims and added a new factor to the discoverability
    analysis. That section reads as follows:

5 (1)
A claim is discovered on the earlier of,

(a) the day on which the person with the claim first
    knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by
    or contributed to by an act or omission,

(iii) that the act or omission was that of the
    person against whom the claim is made, and

(iv) that,
having regard to the nature of the
    injury, loss or damage, a proceeding would be an appropriate means to seek to
    remedy it
; and

(b) the day on which a reasonable person with the
    abilities and in the circumstances of the person with the claim first ought to
    have known of the matters referred to in clause (a). [Emphasis added.]

[14]

The new factor was the appropriateness of bringing an action. It was not
    an element of the previous iteration of the
Limitations Act
or the
    common law discoverability rule. It is the interpretation of s. 5(1)(a)(iv)
    that is determinative of this appeal and to which I will next turn.

(ii)

Subsection 5(1)(a)(iv) Jurisprudence

[15]

This courts jurisprudence has developed certain principles for the
    interpretation and application of s. 5(1)(a)(iv).

[16]

First, the determination of whether a proceeding is an appropriate means
    to seek to remedy an injury, loss, or damage depends upon the specific factual
    and/or statutory setting of each case:
Nasr Hospitality Services Inc. v.
    Intact Insurance
, 2018 ONCA 725, 142 O.R. (3d) 561, at para. 46.

[17]

Second, this court has observed that two circumstances most often delay
    the date on which a claim is discovered under this subsection. The first is
    when the plaintiff relied on the defendant's superior knowledge and expertise,
    especially where the defendant took steps to ameliorate the loss. The other
    situation is where an alternative dispute resolution process offers an adequate
    remedy, and it has not been completed:
Nasr
, at para. 50.

[18]

Third, Sharpe J.A. in
Markel Insurance Company of Canada v. ING
    Insurance Company of Canada
, 2012 ONCA 218, 109 O.R. (3d) 652, at para.
    34, provided the following guidance concerning the meaning of the term
    "appropriate":

This brings me to the question of when it would be
    appropriate to bring a proceeding within the meaning of s. 5 (1)(a)(iv) of
    the
Limitations Act
. Here as well, I fully accept that parties should
    be discouraged from rushing to litigation or arbitration and encouraged to
    discuss and negotiate claims. In my view, when s. 5 (1) (a)(iv) states that a
    claim is "discovered" only when "having a regard to the nature
    of the injury, loss or damage, a proceeding would be an appropriate means to
    seek to remedy it," the word "appropriate" must mean
legally
    appropriate
. To give appropriate an evaluative gloss allowing a party to
    delay the commencement of proceedings for some tactical or other reason beyond
    two years from the date the claim is fully ripened and requiring the court to
    assess the tone and tenor of communications in search of a clear denial would,
    in my opinion, inject an unacceptable element of uncertainty into the law of
    limitation of actions. [Emphasis in original.]

[19]

In other words, appropriate means whether it is legally appropriate to
    bring an action. Appropriate does not include an evaluation of whether a civil
    proceeding will succeed.

(iii)

Winmill

[20]

Winmill
concerned an appellant who was involved in a physical
    altercation with the police. He was charged with assaulting a police officer
    and resisting arrest but was eventually acquitted of both charges. After his
    acquittals, the appellant issued a notice of action and then a statement of
    claim seeking damages for negligent investigation and battery.

[21]

The respondents brought a motion for summary judgment to dismiss the
    appellants claim on the basis that it was commenced two years and one day
    after the police altercation, and thus he had missed the limitation period by
    one day. The motion judge found that the claim for negligent investigation
    began to run on the date the appellant was acquitted. However, she dismissed
    the claim for battery because the limitation period ran from the date of the
    altercation with the police.

[22]

In
Winmill
, the majority of this court found that the appellant
    could not determine whether it was appropriate to bring an action until he knew
    the outcome of the criminal proceedings. The court stated at para. 33 that the
    criminal charges of assault and resisting arrest against the appellant and his
    tort claim of battery against the respondents are very close to being two sides
    of the same coin or mirror images of each other. Accordingly, the order
    dismissing the battery claim was set aside.

(iv)

Application of Principles

[23]

As noted, the determination of whether a civil proceeding is an
    appropriate means depends upon the specific factual and/or statutory setting of
    each case. In
Winmill
, the majority held that the civil claim and the
    criminal charges were two sides of the same coin. That finding was presumably
    made on the basis that the civil claim involved determining the appropriateness
    of the conduct of the police, who were also closely involved with the criminal
    charges. That makes
Winmill
distinguishable from the facts of the
    present case, where the polices conduct is not the subject of the civil
    proceeding. In my view, therefore, the motion judge did not err in
    distinguishing
Winmill
. The issue that remains is whether the motion
    judge otherwise erred in her analysis of s. 5(1)(a)(iv).

[24]

The appellant relies on
407 ETR Concession Co. v. Day
, 2016
    ONCA 709, 133 O.R. (3d) 762, in support of his position. However,
407 ETR
was an example of a case where an alternative administrative means of settling
    the dispute had not been completed. It has no application to the case at bar,
    where there is no alternative process.

[25]

The appellant also relies on the following statement in
Novak v.
    Bond
, [1999] 1 S.C.R. 808, 63 B.C.L.R. (3d) 41, at para. 85:

Litigation is never a process to be embarked upon casually and
    sometimes a plaintiffs individual circumstances and interests may mean that he
    or she cannot reasonably bring an action at the time it first materializes.
    This approach makes good policy sense. To force a plaintiff to sue without
    having regard to his or her own circumstances may be unfair to the plaintiff
    and may also disserve the defendant by forcing him or her to meet an action
    pressed into court prematurely. [Citation omitted.]

[26]

The factual and statutory context of that statement is important.
Novak
involved a situation where a doctor misdiagnosed a lump on the plaintiff as
    benign. It was later discovered that she had cancer. After undergoing surgery,
    it appeared that the cancer had been cured. The plaintiff considered suing her
    doctor at that point but decided instead to focus on her recovery and accept
    the diagnosis that she had fully recovered from cancer. Some years later, the
    cancer reoccurred, and she sued her original doctor.

[27]

The case considered British Columbias limitations legislation.
    Subsection 6(4)(b) of that statute provided for the postponement of the
    limitation period until a properly advised reasonable person would consider that
    the plaintiff ought, in the persons own interests and taking the persons
    circumstances into account, to be able to bring an action. That, of course, is
    a very different provision than s. 5(1)(a)(iv). In my view,
Novak
does
    not assist the appellant because the British Columbia legislation explicitly
    permitted an evaluation of whether it was in the plaintiffs interests to
    commence a proceeding.

[28]

The appellants principal submission is that he should have been
    permitted to wait until the criminal proceedings concluded so that he could
    evaluate his chances of success in litigation. He argues that litigation is an
    expensive and risky proposition, and he should not have been forced to commence
    a civil proceeding until he knew that he had a chance of success. This
    argument, of course, is precisely what this court in
Markel
said a
    plaintiff is not permitted to do.

[29]

If such an evaluative analysis could effectively stop the running of the
    limitation period, questions will necessarily follow regarding the nature of
    that analysis and the factors that could be considered. For example, is it open
    to a plaintiff to argue that he or she can await the outcome of a related
    discipline process in a professional negligence claim? May a potential
    plaintiff commence a claim many years after the events if there is a change in
    the law that increases his or her chances of success? If a critical witness
    goes missing and is later discovered, is it open to the plaintiff to assert
    that he or she did not know whether it was appropriate to bring an action until
    the witness was found?

[30]

I cite these examples, not to suggest that they should succeed under the
    appropriate means provision, but to show how far that provision might be
    expanded once plaintiffs are permitted to evaluate the strength of their claim
    before being required to commence a proceeding. This approach would introduce a
    measure of uncertainty that is contrary to the legislatures intention in
    enacting the current
Limitations Act
.
It would, in effect,
    transport the law back to the same state of uncertainty that existed before the
    changes in the legislation in 2002.

Disposition

[31]

For the foregoing reasons, I would dismiss the appeal. The respondent is entitled to its costs of the appeal payable by the appellant, which I would fix in the agreed-upon, all-inclusive sum of $10,000.

Released: D.W. December 20, 2019

C.W. Hourigan J.A.

I agree. David Watt J.A.

I agree. G.T. Trotter J.A.

[1]
Mr. Bourdeau brought a separate motion for summary judgment. Counsel advised us
    that the decision on that motion is under reserve.

[2]
For a discussion of the impetus behind reforming the
Limitations Act
, see:
    Graeme Mew,
Limitations Act

2002
: A huge reform of existing law,
    LAWPRO Magazine 2:1 (March 2003), online: <https://www.practicepro.ca/wp-content/uploads/2003/03/2003-02-full-article-limitations-act-2002.pdf>.


COURT OF APPEAL FOR ONTARIO

CITATION: Swan v. Durham
    Condominium Corporation No. 45, 2019 ONCA 1016

DATE: 20191220

DOCKET: C66287

Huscroft, Trotter and Zarnett
    JJ.A.

BETWEEN

Leslie Arthur Swan

Plaintiff (Appellant)

and

Durham Condominium Corporation
    No. 45

Defendant (Respondent)

Howard Wright, for the appellant

Sheldon Inkol, for the respondent

Heard: December 20, 2019

On appeal from the judgment of Justice Sandra
    Nishikawa of the Superior Court of Justice, dated March 8, 2019.

APPEAL BOOK ENDORSEMENT

[1]

We see no error in the motion judges conclusion that Mr. Swans claim
    for indemnification is barred on the basis that it is
res
    judicata
. Sosna J. determined that Mr. Swan was not entitled to the
    indemnity because he acted in bad faith in the exercise of his duties as director.
    His motion for leave to appeal that decision was dismissed. The motion judge
    properly concluded that his claim for indemnification is a collateral attack on
    the October 2015 decision and an abuse of process. There is no merit to the
    argument that his clear finding of bad faith is somehow undermined by the terms
    of the order the parties took out.

[2]

Nor did the motion judge err in concluding that the lien should not be
    vacated. We see no error in the motion judges analysis, particularly at paras.
    27-35 of her reasons, where she determined that the lien was valid.

[3]

There was no evidentiary basis before the motion judge that would have
    justified vacating the lien. The real issue in this case concerns the amount of
    the lien.

[4]

The order contemplates recalculation of the amount the respondent may
    claim in accordance with the reasons, provision of an updated statement to the
    appellant, discharge of the original lien amount and registration of a lien for
    the revised amount. In other words, the original lien is to be revised in
    accordance with the order, and the motion judge retained jurisdiction to
    address any matters arising in this regard. This is not a situation in which a
    new lien must be registered in accordance with the timeliness requirements of
    the Act. In the circumstances, the discharge and re-registration does not
    affect the underlying validity of the lien for the revised amount.

[5]

The appeal is dismissed.

[6]

The respondent is entitled to costs in the
    agreed amount of $7,000, inclusive of taxes and disbursements.


COURT OF APPEAL FOR ONTARIO

CITATION: Syrnyk v. Syrnyk, 2019 ONCA
    948

DATE: 20190202

DOCKET: C66541

Watt, Hourigan and Trotter JJ.A.

BETWEEN

Ronald Syrnyk

Appellant

and

Richard Syrnyk

Respondent

Edwin G. Upenieks, for the appellant

Chris Tonks, for the respondent

Heard: November 28, 2019

On appeal from the judgment of Justice Cynthia
    Petersen of the Superior Court of Justice, dated January 9, 2019.

APPEAL BOOK ENDORSEMENT

[1]

On consent, the appeal is dismissed with costs
    payable to the respondent of $3,250, all inclusive of fees, disbursements and
    all applicable taxes. These costs are to be paid in accordance with the
    directions given by Madam Justice Petersen in sub-paragraphs 97(h) and 97(m) of
    the Reasons for Judgment, dated January 9, 2019.


COURT OF APPEAL FOR ONTARIO

CITATION: The Toronto-Dominion Bank v. Pomer
    & Boccia Professional Corporation, 2019 ONCA 995

DATE: 20191216

DOCKET: C66757

Brown, Huscroft and Roberts
    JJ.A.

BETWEEN

The Toronto-Dominion Bank

Plaintiff (Respondent)

and

Pomer & Boccia Professional Corporation

David Michael Pomer and Douglas LaFramboise

Defendants
    (Appellants)

Evan Moore, for the appellant Douglas
    LaFramboise and as agent for counsel for The Toronto-Dominion Bank

Heard: December 16, 2019

On appeal from the judgment of Justice E.
    Ria Tzimas of the Superior Court of Justice, dated February 21, 2019.

APPEAL BOOK ENDORSEMENT

[1]

Consent dismissal of the actions against Mr.
    LaFramboise to go in terms of consent draft order filed. Counsel confirmed that
    this partial settlement does not affect the crossclaim by Pomer & Boccia
    and Mr. Pomer against Mr. LaFramboise, which remains alive.


COURT OF APPEAL FOR ONTARIO

CITATION: Traders General Insurance Company v. Gibson, 2019
    ONCA 985

DATE: 20191213

DOCKET: C66816

van Rensburg, Paciocco and Thorburn JJ.A.

BETWEEN

Traders General Insurance Company

Applicant (Appellant/

Respondent by way of cross-appeal)

and

Elizabeth Gibson

Respondent
    (Respondent/

Appellant by way of
    cross appeal)

Alan L. Rachlin, for the appellant

Nancy J. Tourgis and Rajiv Joshi, for the respondent

Heard: November 21, 2019

On appeal from the order of Justice Carole J. Brown of
    the Superior Court of Justice, dated March 12, 2019, with reasons reported at
    2019 ONSC 1599.

Thorburn J.A.:

OVERVIEW

[1]

Elizabeth Gibson (Elizabeth) had a Homeowners Insurance Policy (the
    policy) with Traders General Insurance Company (Traders).

[2]

Elizabeths daughter, Elizabeth Thompson Gibson (Betty), commenced an
    action against Elizabeth for damages resulting from injuries after Betty fell
    from the porch of Elizabeths house and the railing came down with her. Betty
    and Elizabeth were tidying the porch while waiting for a taxi to take them to
    medical appointments, which they were both attending.

[3]

Elizabeths policy contains an exclusion of coverage for claims made
    against Elizabeth arising from bodily injury to  any person residing in your
    household other than a residence employee.

[4]

The issue on this appeal and cross-appeal is whether Elizabeth is
    entitled to a defence and indemnity against her daughter Bettys claim, either
    as a residence employee or as a tenant. The essence of the dispute between the
    parties on this appeal is the interpretation of the policy provisions.

[5]

The application judge held that Elizabeth was entitled to coverage for
    Bettys claim because Betty was a tenant. Had she not been a tenant, Bettys
    claim would have been excluded on the basis that Betty was a member of the
    household and there was no exemption from exclusion, as Betty was not a
    residence employee.

[6]

Traders claims the application judge correctly interpreted the words in
    the policy to conclude that Betty was not a residence employee but erred in
    holding that Betty was a tenant and the claim was therefore covered under
    Elizabeths insurance policy.

[7]

Elizabeth claims Betty was either a residence employee and/or a
    tenant within the meaning of the policy and the claim is therefore covered
    under the insurance policy.

[8]

Traders appeals the decision that Elizabeth was entitled to a defence
    and indemnity because she was a tenant. Elizabeth cross-appeals the decision
    that she was not entitled to a defence and indemnity on the basis that Betty
    was not a residence employee within the meaning of the policy.

[9]

For the reasons that follow, I would allow Traders appeal and dismiss
    Elizabeths cross-appeal.

THE ISSUES

[10]

The question on this appeal is whether the application judge erred in
    deciding that Bettys claim was covered under Elizabeths policy.

[11]

The issues to be determined are as follows:

1.

Did the application judge err in her interpretation of the words person
    residing in your household in the policy exclusion?

2.

Did the application judge err in her interpretation of the words
    residence employee contained in the exemption from the policy exclusion?

3.

Did the application judge err in concluding that Betty was covered under
    the policy as a tenant?

THE TERMS OF THE HOMEOWNERS INSURANCE POLICY

[12]

Elizabeths homeowners policy defines Insured as, the person(s)
    named as insured in the Certificate of Property Insurance and, while living in
    the same household: 1) his or her spouse; 2) the relatives of either; and 3)
    any person under the age of 21 in their care. It is agreed that Elizabeth is
    the insured.

[13]

The policy provides coverage for the following:

We will pay all sums which you become legally liable to pay as
    compensatory damages because of unintentional bodily injury or property damage
    arising out of:

1. your personal actions anywhere in the world;

2. your ownership, use or occupancy of the premises
    defined in Section II.

[14]

The policy includes the following exclusion:

We do not insure claims made against you arising from:

5. bodily injury to you or any person residing in your
    household other than a residence employee;

[15]

The policy defines Residence Employee:

Residence Employee
 means a person employed by you to
    perform duties in connection with the maintenance or use of the premises. This
    includes persons who perform household or domestic services or duties of a
    similar nature for you. This does not include contractors or sub-contractors.
    It also does not cover persons while performing duties in connection with your
    business.

[16]

The policy also limits coverage for residence employees in the following
    way:

We will not pay benefits:

1. unless your employee was actually performing duties for you
    when the accident happened;

[17]

There is no reference in the policy to tenants.

THE NATURE OF THE RELATIONSHIP BETWEEN ELIZABETH AND BETTY

[18]

The facts are not in dispute.

[19]

As of the time of Bettys fall, Betty had been living with Elizabeth for
    over 60 years, save for a ten-month period when she was living in Kingston.

[20]

For many years prior to her fall, Betty received disability benefits.

[21]

Elizabeth and Betty occupied the home together and shared household
    chores such as vacuuming, dusting, laundry, and grocery shopping. They shared a
    washroom and they prepared and ate meals together. They both contributed to the
    cost of home renovations for their mutual benefit.

[22]

Betty paid Elizabeth rent (at first $200 per month and then $400 per
    month) though she had no written rental agreement. Elizabeth assumed
    responsibility for utilities and property taxes.

[23]

Elizabeth never had a specific list of duties for Betty. Elizabeth
    testified that Betty could do what she wished at any given time and when
    Bettys health was poor, she did not do any tasks at all, although her rent was
    not increased during that time.

[24]

There was no written contract between Elizabeth and Betty, nor was there
    a schedule for doing specific work. Betty was not paid for the work she did at
    the house.

[25]

Elizabeth testified in her examination for discovery that all of her
    children were required to help around the house when they lived at home.

THE APPLICATION JUDGES DECISION

[26]

The application judge held that Betty was not a residence employee
    within the meaning of the policy. She held that:

While the background facts indicate that Betty was residing in
    the house, paying a low rent and performing household tasks, I am not of the
    view that those circumstances alone would make Betty a residence employee.

There was no written contract between Elizabeth and Betty
    concerning work that Betty was to do. There was never a schedule propounded for
    doing specific work. Betty was not paid for the work she did at the house. She
    was not issued a T4. Elizabeth never submitted any documentation relating to
    Betty with respect to Employment Insurance, Canada Pension Plan benefits,
    or Workplace Safety and Insurance Board premiums. Betty could do as much
    or as little as she wished at any time, according to Elizabeth. She had discretion
    to perform the household tasks she wanted to. She did not report to Elizabeth
    as regards the work that she did, nor was she supervised by
    Elizabeth. During some periods of her illness, Betty could not work at all
    or perform any household tasks. When this occurred, she did not pay more rent.

[T]here was no family business and no employer and employee
    relationship between Elizabeth and Betty.

For all of the above reasons, I do not find that Betty can be
    considered a residence employee. I am of the view that the policy does not
    provide coverage for Betty as a residence employee.

[27]

However, the application judge concluded that Betty was a tenant and was
    therefore covered by the insurance policy. Although the agreement did not
    define tenancy, the application judge concluded that a tenancy has two
    components: (1) the tenant occupies the property in question; and (2) the
    tenant is permitted to do so by the landlord in exchange for consideration,
    which need not be in writing or for a fixed time. Betty was residing with
    Elizabeth at the time of the accident and they had an agreement about their
    living arrangement, although it was not in writing.

[28]

The application judge held that:

[I]t had to have been in the reasonable contemplation of the
    parties that the owner may have rented a room to a tenant for remuneration, and
    that the owner may call upon that policy if a tenant were injured on the
    property, as the policy was obtained for the express purpose of providing
    liability coverage in respect of the ownership, use and occupancy of the
    property. I find that it would have been in the mind of Elizabeth when she
    first purchased the policy of insurance that she would be covered for
    liability for accidents occurring in the home for tenants. The opposite
    conclusion would be contrary to the reasonable expectations of Elizabeth and to
    the ordinary person as to the coverage purchased. [Citations omitted.]

ANALYSIS AND CONCLUSION

A.

THE STANDARD OF REVIEW

[29]

The interpretation of the terms of an insurance policy are reviewed on a
    standard of correctness:
Ferro v. Weiner
, 2019 ONCA 55, 144 O.R. (3d)
    414, at para. 12;
Lombard Canada Ltd. v. Zurich Insurance Co.
, 2010
    ONCA 292, 101 O.R. (3d) 371, at para. 25.

[30]

In this appeal, there is no dispute as to the facts: The dispute between
    the parties is the interpretation of the words in the policy any person
    residing in your household, residence employee, and whether and in what
    circumstances the policy covers a tenant. The standard of review on these
    questions of the interpretation of the policy is correctness.

B.

PRINCIPLES FOR INTERPRETING INSURANCE POLICIES

[31]

When interpreting an insurance policy, coverage provisions should be
    construed broadly, exclusion clauses should be construed narrowly, and
    ambiguities should be construed against the insurer:
Non-Marine
    Underwriters
,
Lloyds of London v. Scalera
, 2000
    SCC 24, [2000] 1 S.C.R. 551, at paras. 70-71;
Reid Crowther &
    Partners Limited v. Simcoe & Erie General Insurance Co.
,
[1993]
    1 S.C.R. 252, at p. 271.

[32]

The court must attempt to ascertain the purpose of the clause:
Wawanesa
    Mutual Insurance Company v. Bell
, [1957] S.C.R. 581, at p. 583.

C.

ISSUE ONE: DID THE APPLICATION JUDGE ERR IN HER INTERPRETATION OF THE
    WORDS PERSON RESIDING IN YOUR HOUSEHOLD IN THE POLICY EXCLUSION?

[33]

The policy excludes claims arising from [b]odily injury to you or any
    person residing in your household except a residence employee.

[34]

It is agreed that Betty was residing in Elizabeths house at the time of
    the injury.

[35]

A household is defined in
Blacks Law Dictionary
, 9th ed. as
    belonging to the house and family.

[36]

The Supreme Court of Canada defined a household as a collective group
    living in a home, acknowledging the authority of a head, the members of which,
    with few exceptions, are bound by marriage, blood, affinity or other bond,
    between whom there is an intimacy and by whom there is felt a concern with and
    an interest in the life of all that gives it a unity:
Bell
, at p. 584.

[37]

In
Ferro
,
at paras. 17, 25, Miller J.A. for the court
    defines household as a place where:

its members share the intimacy, stability, and common purpose
    characteristic of a functioning family unit.

A persons membership in a household is not established by a
    restricted inquiry limited to interactions surrounding the use and management
    of one particular residence  [M]embership in a household is assessed
    holistically, based on the totality of the parties relations and intentions
    towards each other.

[38]

What is essential in determining whether a person is part of the
    household is not how the household is structured, but the degree to which the
    choices and actions of all members are motivated by the collective interest of
    the household as distinct from their individual interests:
Ferro
, at
    para. 17.

[39]

This involves consideration of whether:

a)

The person contributes to the household in a meaningful way through time
    and/or resources for the benefit of the collective good of the household;

b)

The person shares common space with other members of the household; and

c)

The person is motivated by an interest in the life of all members of the
    household.

[40]

The application judge defined the correct test in interpreting the words
    person residing in your household. She then applied the test to the agreed
    facts.

[41]

She appreciated that when Betty fell from the porch, she had been
    residing in her mother Elizabeths home for many years, sharing responsibility
    for household chores, doing groceries, eating meals together, taking care of
    one another, and sharing an emotional bond. They shared common areas such as
    the kitchen and washroom. While Betty paid some rent to Elizabeth, she also
    spent money on home renovations for the benefit of the household.

[42]

Betty and Elizabeths actions and living arrangements were clearly
    indicative of Betty being a person residing in your household, as the
    application judge correctly defined it. This was a family collective living
    together in a home with a common bond and concern for one another. These
    circumstances were sufficient to conclude that Betty was a member of
    Elizabeths household at the time of her injury.

[43]

Bearing in mind that exclusion clauses should be construed narrowly, it
    is nonetheless clear that the application judge invoked the correct definition
    of person residing in your household and therefore concluded that Betty was a
    member of the household who shared the common purpose of contributing to the
    wellbeing of the members of the household, sharing space, and motivated by an
    interest in her and her mother.

D.

ISSUE TWO: DID THE APPLICATION JUDGE ERR IN HER INTERPRETATION OF THE
    WORDS RESIDENCE EMPLOYEE CONTAINED IN THE EXEMPTION FROM THE POLICY
    EXCLUSION?

[44]

The interpretation of the words residence employee within the meaning
    of the policy is also a question of law to which the correctness test applies.

[45]

Elizabeths policy does not cover claims for bodily injury for members
    of the household (as Betty was) unless they are residence employees. If Betty
    is a residence employee, she is excepted from the policy exclusion.

[46]

Under the policy, a Residence Employee is a person employed by you to
    perform duties in connection with the maintenance or use of the premises  who
    perform household or domestic services or duties of a similar nature for you
    [the homeowner].

[47]

There are few cases that consider whether an individual is covered by a
    policy as a residence employee.

[48]

In
Wawanesa Mutual Insurance Co. v. Hewson
,
the
    son of a farmer who lived on the family farm was injured while lifting a barrel
    of hay and sued his father: 2003 SKQB 116, 28 C.C.L.I. (3d) 196,
    affd 2004 SKCA 112, 13 C.C.L.I. (4th) 189. The court held that the son
    was an employee of his father, although the son worked on the family farm,
    the compensation was inadequate, and it was not fixed or paid systematically.
    He was an employee in the circumstances because his work went beyond chores and
    it was significant to the operation of the farm. Specifically, the court
    reasoned as follows, at paras. 40-42:

The issue of whether a person is an employee is a factual one
    which must be determined upon a consideration of the particular circumstances.

I make particular reference to these circumstances. Dayton
    Hewson did almost all the work involved in the cattle operation.
The amount
    of work was significant, necessary and well beyond what is considered to be
    chores. It was performed on a daily basis
. Yet while he did this work, it
    was done under the direction and control of Larry Hewson who also sometimes
    helped. While Larry Hewson would have acted in the capacity of Daytons father,
    a role which never ceased, this did not preclude him from also acting as an
    employer. He was the owner of the cattle operation and he engaged his son to
    keep it functioning. Yet any profit or loss flowing from the cattle operation
    was that of the father.
In short, the working arrangement was that of any
    business
.

Dayton Hewson obtained compensation which was over and above
    normal care provided to a child by parents. [Emphasis added]

[49]

In
Duquette v. Kent & Essex Mutual Insurance Co.

(1992), 9
    O.R. (3d) 436 (Gen. Div.), two brothers worked on one anothers nearby farms.
    One was returning a combine that his brother had rented when he made an
    improper left turn and caused damage to a tractor-trailer. The issue was
    whether the brother involved in the accident was covered by the other brothers
    Homeowners and Composite Farm policy as a residence employee or farm
    employee.

[50]

The court in
Duquette
held that the ordinary meaning of
    employee was one who works for another for wages or some other valuable
    consideration: at p. 442. The court found that the brother involved in the
    accident was receiving valuable consideration and was working under the
    direction and control of his brother as an employee. In other words, he was
    working in an employer and employee situation.

[51]

In this case, the terms of the policy indicate that the residence
    employee must be performing duties
for

you (emphasis added),
    referring to the insured person, in this case, Elizabeth. Unlike the cases
    referred to above, Betty regularly performed domestic services in the house she
    shared with Elizabeth, but she did not perform the services
for
Elizabeth. Elizabeth said she did not direct Betty to do work. Betty was not
    remunerated for doing specific tasks, and the tasks she performed were for
    their mutual benefit.

[52]

Moreover, as noted by the court in
Hewson
, doing routine chores
    for the benefit of the household, as Betty did, is not enough to be considered
    an employee. The duties must extend beyond chores to constitute a workplace
    arrangement.

[53]

For these reasons, the application judge correctly interpreted the words
    residence employee in the policy. She applied this interpretation to the
    agreed facts to conclude that the relationship between Betty and Elizabeth was
    not in essence a workplace arrangement, and it did not go beyond performing
    household chores for their mutual benefit. As such, Betty was not a residence
    employee excepted from the policy exclusion.

E.

ISSUE THREE: DID THE APPLICATION JUDGE ERR IN CONCLUDING THAT BETTY WAS
    COVERED UNDER THE POLICY AS A TENANT?

[54]

The clear language of the policy excludes
all
claims for bodily
    injury to
anyone
residing in the household except a residence employee.
    There is no exception to the exclusion for members of the household who are
    also tenants. The absence of a specific exclusion does not create coverage
    where an exclusion applies.

[55]

Thus, once it is established that Betty was a person residing in
    Elizabeths household, coverage cannot be extended for her claim against
    Elizabeth based on her status as a tenant. If the essence of the relationship
    between Elizabeth and Betty had been that of landlord and tenant, rather than
    member of the household sharing the intimacy, stability, and common purpose of
    the household, then Bettys claim would have been entitled to succeed. This was
    the case in
Wright v. Canadian Group Underwriters Insurance Co.
, 2002
    BCCA 254, 1 B.C.L.R. (4th) 30, relied on by the application judge.

[56]

In
Wright
, the claimant was a stranger who had no family
    connection to either owner, and who moved into the insured premises as a
    rent-paying tenant: at para. 25. Unlike Betty, she was a tenant with no family
    ties to the owners and

was not a member of the household in the sense that
    she shared the intimacy, stability, and common purpose characteristic of a
    household, as Betty and her mother Elizabeth did.

[57]

The essence of the relationship in
Wright
was that of landlord
    and tenant. The tenant in
Wright
was not a member of the household who
    contributed to and enjoyed the fruits of being a member of the household, while
    paying some rent. Because the tenant was not a member of the household, the
    exclusion did not apply. By contrast, Betty resided in the residence of the
    insured, Elizabeth, as a member of the household. Although she paid some rent,
    the essence of their relationship was as a member of the household,
    contributing to and enjoying the fruits of membership in the household.

[58]

Once she had determined that the exception applied, that is, that Betty
    was a member of Elizabeths household, the application judge erred by
    considering the reasonable expectations of the parties to the insurance
    policy and concluding that Elizabeth would be entitled to coverage as a
    tenant. The primary interpretative principle in the construction of
    insurance policies is that, where the policy is unambiguous, the court
    should give effect to its clear language, reading the policy as a whole:
Allstate
    Insurance Co. of Canada v. Aftab
, 2015 ONCA 349, 49 C.C.L.I (5th) 173, at
    para. 17;
Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada
, 2010
    SCC 33, [2010] 2 S.C.R. 245, at para. 22; and
Scalera
, at
    para. 71.

CONCLUSION

[59]

The application judge made no error in interpreting the words person
    residing in your household or residence employee in the policy and she
    applied those definitions to the agreed facts. She therefore concluded that
    Betty resided in the household but was not a residence employee.

[60]

However, the application judge erred in her interpretation of the policy
    by holding that Elizabeths claim was covered under the policy on the basis
    that Betty was a tenant. Whether or not Betty paid rent, she was a member of
    Elizabeths household and was not a residence employee. The policy is clear
    that all persons residing in the insureds household are excluded from coverage
    unless they are residence employees. This is so regardless of whether they pay
    rent.

[61]

The application judge therefore erred in concluding that Elizabeth is
    entitled to a defence and indemnity against her daughter Bettys claim on the
    basis that she found Betty was a tenant.

[62]

For these reasons, I would grant the Traders appeal and dismiss
    Elizabeths cross-appeal. I would award costs to Traders in the amount of $11,000
    all inclusive, as agreed by the parties, and, given the result, reverse the
    costs in the court below.

Released: December 13, 2019  (K.M.v.R.)

J.A. Thorburn J.A.

I agree. K. van
    Rensburg J.A.

I agree. David M.
    Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Treelawn Capital Corp. v. IAMGOLD Corporation, 2019
    ONCA 1022

DATE: 20191224

DOCKET: C66992

Roberts, Zarnett and Jamal JJ.A.

BETWEEN

Treelawn Capital Corp.

and Wood Family Wealth
    Corporation

Applicants (Appellants)

and

IAMGOLD Corporation

Respondent (Respondent)

Ian P. Katchin and Martin R. Kaplan, for the appellants

Neal J. Smitheman, Vaso Maric and Harry Skinner, for the
    respondent

Heard: December 19, 2019

On appeal from the order of Justice Shaun OBrien of the Superior
    Court of Justice, dated May 17, 2019, with reasons reported at 2019 ONSC 1935.

REASONS FOR DECISION

[1]

The narrow issue raised in this appeal is whether the application judge
    erred in exercising her discretion pursuant to s. 107 of the
Mining Act
,
    R.S.O. 1990, c. M.14 (the
Mining Act
) by refusing to transfer a
    proceeding commenced by the respondent before the Mining and Lands Tribunal
    (the Tribunal) to the Ontario Superior Court of Justice (the Superior
    Court).

[2]

The respondent commenced the Tribunal proceeding pursuant to s. 181(2)
    of the
Mining Act
in order to require the appellants to pay their
    share of expenditures relating to the development of land and mining claims in
    which the appellants and respondent are co-owners. Section 181(2) provides one
    co-owner with an express statutory right to apply to the Tribunal to enforce a
    claim for payment of rents or expenditures for development work against another
    co-owner, while s. 181(5) provides for a statutory remedy of a vesting order in
    respect of the interest of the delinquent co-owner to the other co-owner who
    has paid rents or made expenditures. These provisions establish a streamlined
    and expeditious procedure before the Tribunal for a co-owner to recover unpaid
    rents or expenditures or for a vesting order in respect of mining development
    work.

[3]

The appellants responded to the Tribunal proceeding by applying to the
    application judge to transfer that proceeding to the Superior Court pursuant to
    s. 107 of the
Mining Act
. In essence, the appellants argued that
    an alleged oral agreement absolved them of any obligation to contribute to the
    expenses claimed by the respondent pursuant to s. 181(2). They asserted that
    the court must first adjudicate on the existence and effect of the alleged oral
    agreement as a preliminary matter, because a ruling in their favour would
    deprive the Tribunal of jurisdiction over the application for the unpaid
    expenses.

[4]

The appellants later filed a statement of claim with the Superior Court seeking,
    amongst other things, declaratory relief regarding the alleged oral agreement. A
    draft of the statement of claim was before the application judge and we are
    advised that the action was commenced after the hearing of the application to
    transfer. The draft statement of claim described the oral agreement as
    governing the obligations of the parties with respect to all mining activities
    and development of the lands in issue.

[5]

In our view, the application judge was entitled to find that, having
    regard to all the circumstances, it would not be appropriate to transfer the
    Tribunal proceeding to the Superior Court. These circumstances include especially
    the application judges findings that: (i) the matters at issue fall squarely
    within the Tribunals expertise; (ii) s. 181(2) of the
Mining Act
expressly
    addresses how co-owners of land or mining rights are to address rents or
    expenditures by applying to the Tribunal for a co-owners proportionate
    contribution to those expenditures; (iii) s. 181(4) of the
Mining Act
provides
    the appellants with a procedure for raising before the Tribunal their argument
    that the alleged oral agreement eliminates any obligation to contribute to the
    expenses claimed pursuant to s. 181(2); and (iv) the Tribunal can address any
    matters that may arise, including jurisdictional issues, by deploying its
    expertise in interpreting its home statute.

[6]

We also disagree with the appellants characterization of the alleged
    oral agreement as involving a matter of property and civil rights, which should
    therefore be transferred to the Superior Court, rather than as involving a
    matter concerning a right arising under the
Mining Act
.
The Tribunal proceeding involves the exercise
    of a statutory claim granted under the Act, which the Tribunal has jurisdiction
    to adjudicate. Moreover, as noted, the draft statement of claim described the
    alleged oral agreement as governing the obligations of the parties with
    respect to all mining activities and development, which again evidences the
    strong connection with mining. As a result, in our view, and as the application
    judge found, even though the Superior Court has concurrent jurisdiction in
    respect of the contract claim, the matters at issue are within the Tribunals specialized
    expertise.

[7]

For these reasons, we see no error in the application judges decision
    refusing to transfer the Tribunal proceeding to the Ontario Superior Court of
    Justice.

[8]

The appeal is dismissed, with costs to the respondent fixed in the
    agreed amount of $35,000, inclusive of disbursements and taxes.

L.B. Roberts
    J.A.

B. Zarnett J.A.

M. Jamal J.A.