COURT OF APPEAL FOR ONTARIO

CITATION: Malik v. Attia, 2020 ONCA 787

DATE:  20201210

DOCKET: C67353

Strathy C.J.O., Brown and
    Huscroft JJ.A.

BETWEEN

Tashfeen Malik

Plaintiff/Defendant
    by Counterclaim

(Respondent)

and

Amal
    Attia, Mohamed Amr Abdelraouf
, RE/MAX
    Performance Realty Inc., and John Doe Corporation

Defendants/Plaintiffs
    by Counterclaim

(
Appellants
)

Scott A. Rosen, for the appellants

Harinder Dhaliwal, for the respondent

Heard: October 9, 2020 by video conference

On appeal from the order of Justice
    Irving André of the Superior Court of Justice, dated July 22, 2019, with
    reasons reported at 2019 ONSC 4395, [2019] O.J. No. 6790.

BROWN J.A.:

I.        OVERVIEW

[1]

The parties entered into separate agreements for
    the purchase and sale of two abutting residential properties in Mississauga
    (the Agreements). The Agreements did not close because the appellant
    purchasers,
Amal Attia and Mohamed Amr Abdelraouf (the
    Buyers), did not have the
funds to pay the purchase
    prices.

[2]

The respondent vendor,
Tashfeen
    Malik (the Seller)
, sued the Buyers seeking
    forfeiture of their $100,000 deposit and damages of $500,000 for breach of
    contract.

[3]

The Seller sought and obtained partial summary
    judgment declaring that the Buyers had breached the Agreements. The motion
    judge ordered the issues of damages and the forfeiture of the deposits to
    proceed to trial.

[4]

The Buyers appeal. At the hearing, the appeal
    was dismissed for reasons to follow. These are those reasons.

II.       FACTS

A.

The history of the Properties

[5]

The Seller was, and remains, the owner of two
    abutting properties in the City of Mississauga, municipally known as 4240 and 4246
    Cawthra Road (the "Properties").

[6]

In 1983, the then owner of 4246 Cawthra became
    the owner of the adjacent 4240 Cawthra. After 1983, the Properties were always
    conveyed together to the same new owners. In 2013, the Seller acquired the
    Properties by entering into two separate agreements of purchase and sale and
    the Properties were conveyed to the Seller by a single transfer instrument.

B.

The Agreements

[7]

On August 19, 2016, the Seller listed the Properties
    for sale through her real estate agent. The MLS listings for the Properties
    stated:

Brkage Remks: 4240 and 4246 Cawthra Rd Merged
    Together, Vendor Wants Both Lots to Be Sold Together. The City Has Consent For
    Subdivision. *** Call Listing Agent If Any Question.

[8]

In September 2016, the appellant Buyer, Ms. Attia,
    contacted the Seller and her husband through Ms. Attias real estate agent. The
    real estate agent told Ms. Attia that the two Properties had to be sold
    together.

[9]

On October 7, 2016, Ms. Attia, acting in trust
    for a company to be incorporated, entered into the two Agreements. The Agreements
    provided that the purchase price for each Property was $725,000 and the deposit
    $50,000, and that closing would take place no later than December 8, 2016. The
    Agreements were later amended to add the appellant Mr. Abdelraouf as a Buyer.

[10]

Ms. Attia, on behalf of the Buyers, made the
    deposits totaling $100,000, which the defendant brokerage continues to hold in
    trust.

[11]

Neither Agreement contained a mortgage financing
    condition. On October 14, 2016 the Buyers waived or deleted the provisions stipulating
    that their offers were conditional upon the approval of the terms by their
    solicitor.

[12]

The Ontario Real Estate Association standard
    form was used for the Agreements, which contained the following clause
    regarding the
Planning Act
, R.S.O. 1990, c. P.13:

15. PLANNING ACT
: This Agreement shall be effective to create an interest in the
    property only if Seller complies with the subdivision control provisions of the
    Planning Act by completion and Seller covenants to proceed diligently at
    Sellers expense to obtain any necessary consent by completion.

[13]

The Agreement for 4240 Cawthra described the
    property as Plan A24 PT LT 1143R12743 PT 6; the Agreement for 4246 Cawthra
    described the property as PT LT 11, PL A24, PART 5, 11, 43R12743. Schedule A
    to the 4246 Cawthra Agreement stated that: The Seller Agrees to provide the
    consent letter received from committee of adjustment regarding severance.
    Schedule C to both Agreements contained a sketch of the Properties for use on
    an Application for Consent. The sketch showed that Part 6 would be severed from
    Part 5.

[14]

A Mississauga Committee of Adjustment letter
    dated July 28, 2016 recorded the Committees approval of the Sellers
    application to sever the Properties, subject to the condition that the
    Committees provisional approval be fulfilled by July 29, 2017. The letter was
    either attached to the 4246 Cawthra Agreement or separately provided to the
    Buyers.

C.

The requisitions and responses

[15]

Under the Agreements, the deadline for the
    Buyers to make requisitions was November 24, 2016. On November 23, 2016,
    Buyers counsel emailed Sellers counsel requisitions for each Property that
    required, on or before closing, satisfactory evidence of compliance with The
    Planning Act, Ontario, including completion of the Planning Act statements in
    the Deed/Transfer of Land.

[16]

The requisitions also required the Seller to
    execute and return a statutory declaration to Buyers counsel before closing,
    paragraph 5 of which was to state:

I do not retain the fee or the equity of
    redemption in, or a power or right to grant, assign or exercise a power of
    appointment with respect to any land abutting the lands being conveyed in the
    subject transaction.

[17]

On December 7, 2016, Sellers counsel sent Buyers
    counsel a letter enclosing the keys and closing documents to be held in escrow
    until the transfers had been registered. In the enclosed statutory declarations
    signed by the Seller (the Statutory Declarations), paragraph 5 had been amended
    by blacking out the word not, so that it read:

I do [blacked out] retain the fee or the
    equity of redemption in, or a power or right to grant, assign or exercise a
    power of appointment with respect to any land abutting the lands being conveyed
    in the subject transaction.

D.

Extensions of the closing date

[18]

The transactions did not close on December 8,
    2016. Ms. Attia admitted that the Buyers did not have firm mortgage financing
    in place. The Seller agreed to a one-day extension of the closing date to
    December 9, 2016.

[19]

On December 9, Buyers counsel advised that they
    had no mortgage instructions and therefore no money to close. Sellers
    counsel stated that his client was ready, willing and able to close the
    transactions on these firm deals but was prepared to extend closing until
    December 19, 2016, provided certain conditions were met.

[20]

Although the Buyers did not agree to the
    conditions, the parties continued to deal with each other.
On December 12, Sellers counsel advised that his client
    had learned the Buyers had a mortgage in place and could close either that day
    or the next.
That did not turn out to be the case.

[21]

Over the course of the ensuing week, the
    parties, through their counsel, negotiated the terms of an extension of the
    closing date, ultimately agreeing to extend the closing until January 10, 2017,
    on terms. Amending agreements executed by the parties on December 20, 2016
    memorialized the extension agreement.

[22]

On January 3, 2017, Sellers counsel inquired of
    Buyers counsel if everythings on track for the closings. On January 6, the
    Buyers sought a further extension of the closing date until January 26, 2017 to
    have more time to secure mortgage financing. They also inquired whether the
    Seller would enter into a vendor take-back mortgage.

[23]

The Seller was not prepared to grant any further
    extension or enter into a vendor take-back mortgage.

[24]

Inquiries by Sellers counsel on January 10,
    2017, the scheduled closing date, as to whether Buyers counsel was in funds
    went unanswered. The transactions did not close. The Buyers admit that they did
    not have the funds or mortgages in place to close the transactions.

[25]

On January 11, 2017 Sellers counsel informed
    Buyers counsel that the Buyers were in breach of the Agreements. On January
    12, 2017, Sellers counsel advised that the Buyers were in fundamental breach
    and their deposits would be forfeited.

[26]

Between January 12, 2017 and January 25, 2017,
    the Buyers counsel and real estate agent made various proposals to the Seller
    to revive and restructure the transactions, including entering into a new
    agreement of purchase and sale that would cover both Properties. At no time did
    the Buyers suggest that the Seller had failed to tender proper closing
    documents.

[27]

On January 30, 2017, the Seller filed her claim
    for forfeiture and breach of contract against the Buyers. On April 8, 2019, the
    Seller moved for summary judgment in respect of that claim. As of the date of
    the summary judgment motion, the Seller had not re-sold the Properties.

III.      THE MOTION JUDGES REASONS

[28]

In his reasons, the motion judge addressed two
    issues. First, the Buyers had argued that para. 5 of the Statutory Declarations
    stated, in respect of each of the two Properties, that the Seller was retaining
    the fee or equity of redemption in the abutting parcel, thereby contravening the
    subdivision control provisions of the
Planning Act
. According to the
    Buyers, those statements indicated that: (a) the Sellers tender was defective,
    (b) she had repudiated the Agreements, and (c) the Agreements were invalid: at
    para. 17.

[29]

The motion judge rejected this submission. He held
    that the Buyers offers indicated their intention to purchase the Properties
    together and that the parties intended to treat the two Properties as merged
    and capable of being sold simultaneously in a single transaction: at para. 24.
    Relying on the decision in
Baker v. Nero
(1979), 23 O.R. (2d) 646 (H.C.),
    the motion judge viewed the Agreements as constituting in substance a single
    transaction that did not sever the lands: at para. 25. He also observed that
    the subdivision control provisions of the
Planning Act
did not apply
    to a mistake made between the executing parties: at para. 27. All of which led
    him to conclude that the Seller did not breach the Agreements on December 8,
    2016 when she presented the amended Statutory Declarations to the Buyers. He
    found that the Buyers breached the Agreements on January 10, 2017 when they
    failed to pay the amounts due on closing: at para. 29. The motion judge
    concluded that there was no genuine issue requiring a trial regarding the
    breach of the Agreements: at para. 30.

[30]

The second issue concerned the Buyers
    contention that granting partial summary judgment would offend the principle
    that such relief should only be granted rarely:
Baywood Homes Partnership
    v. Haditaghi
, 2014 ONCA 450, 120 O.R. (3d) 438;
Healthy Lifestyle
    Medical Group Inc. v. Chand Morningside Plaza Inc.
, 2019 ONCA 6, 46 C.P.C.
    (8th) 25, at para. 9. Instead, the Buyers argued the motion judge should set
    the action down for trial.

[31]

The motion judge disagreed, holding that the
    facts regarding the breach of contract issue were not in dispute, making this
    one of the rare cases in which partial summary judgment was appropriate: at
    paras. 33-34. He directed a trial on the issues of damages and forfeiture of the
    deposit. He did not award costs.

IV.     ISSUES ON APPEAL

[32]

The Buyers submit that the motion judge made two
    errors warranting the intervention of this court. Specifically, they contend
    the motion judged erred by:

(1)

concluding there was no genuine issue requiring a trial with respect
    to whether the Buyers had breached the Agreements; and

(2)

granting partial summary judgment where it was inappropriate to bifurcate
    the claim, given the nature of the issues and the risk of inconsistent findings
    of fact.

V.      FIRST ISSUE: DID THE BUYERS BREACH
    THE AGREEMENTS?

A.      The issue stated

[33]

On this appeal, the Buyers advance two related
    arguments.

[34]

First, they contend the motion judge erred in
    holding that they breached the Agreements. Although acknowledging that they
    lacked the funds to complete the transactions on the scheduled closing dates, the
    Buyers argue that the Agreements did not comply with the subdivision control provisions
    of the
Planning Act
and therefore were void. The Buyers submit the
    evidence did not permit the motion judge to conclude, as he did at para. 24 of
    his reasons, that the Buyers intended to purchase both parcels together as part
    of a single transaction.

[35]

Second, the Buyers submit that the Seller
    tendered defective closing documents  the amended Statutory Declarations  thereby
    signalling that she was not ready, willing, and able to provide marketable
    title on closing.

B.      Analysis

[36]

The Buyers make their submissions against the
    undisputed factual backdrop that they lacked the funds to close the purchase of
    the Properties on any of the scheduled closing dates: December 8 and 9, 2016,
    and January 10, 2017. In other words, in respect of the mutually dependent
    promises to pay and to convey, the Buyers were not ready, willing, and able to
    perform their promise to pay: Victor Di Castri,
The Law of Vendor and
    Purchaser
, 3rd ed. (Toronto: Thomson Reuters, 2020), at
§615
. However, the Buyers argue that the
    Seller also was not ready, willing and able to perform her promise to convey
    marketable title. That was because the Agreements were either void for
    contravening the
Planning Act
, or the Sellers tender of documents was
    defective.

[37]

Buyers counsel acknowledges that the arguments advanced
    by his clients are very technical and were not raised by Buyers transaction
    counsel at the time of the scheduled closings. Nevertheless, the Buyers contend
    that they are entitled to point to defective performance by the Seller to
    justify their own non-performance even if they were ignorant of the deficiency
    at the time of termination:
Komorowski v. Van Weel
(1993), 12 O.R.
    (3d) 444 (Gen. Div.), at paras. 42-43.

[38]

On the facts of this case, it is difficult to
    see how the Buyers can assert that they were not aware, at the time of the
    scheduled closings, of the alleged defects in title and tender on which they
    now rest their appeal  they had entered into two separate Agreements for the
    conveyance of abutting lands and the Seller had delivered the allegedly
    defective Statutory Declarations prior to the first scheduled closing. However,
    this appeal does not turn on that point. In the reasons that follow, I explain
    why I do not accept their submissions that the Agreements were void as contrary
    to the
Planning Act
or that the Sellers tender of closing documents was
    defective.

The validity of the Agreements

[39]

Part VI of the
Planning Act
regulates
    the subdivision of land. Section 50(3) is the main subdivision control
    provision, which states, in part:

(3) No person shall convey land by way of a
    deed or transfer  or enter into an agreement of sale and purchase of land
    unless,

(b) the grantor by deed or transfer  [or]
    the vendor under an agreement of purchase and sale  does not retain the fee or
    the equity of redemption in  any land abutting the land that is being conveyed
    or otherwise dealt with other than land that is the whole of one or more lots
    or blocks within one or more registered plans of subdivision [.]

[40]

Section 50(15) deals with the situation where
    abutting lands are conveyed simultaneously. It provides, in part, that:

Where a person conveys land  or enters into
    an agreement of sale and purchase of land  by way of simultaneous conveyances
    of abutting lands  the person so conveying or otherwise dealing with the lands
    shall be deemed for the purposes of subsections (3) and (5) to retain, as the
    case may be, the fee or the equity of redemption in  land abutting the land
    that is being conveyed or otherwise dealt with
but this
    subsection does not apply to
simultaneous conveyances or
    other simultaneous dealings involving the same parties acting in their same
    respective capacities
. [Emphasis added.]

[41]

Simultaneous conveyances of abutting properties
    involving the same parties merge the properties for
Planning Act
purposes: Donald H.L. Lamont,
Lamont on Real Estate Conveyancing,
2nd
    ed. (Toronto: Thomson Reuters, 2020), at
§
9.3(b). The parties agree that the Properties so merged in 1983, when
    the then owner of 4246 Cawthra acquired the adjacent property at 4240 Cawthra.

[42]

The motion judges finding, at paras. 23 and 24,
    that the parties regarded the sale and purchase of the Properties as a single
    transaction was amply supported by the evidence:

·

the listings for the Properties stated that
    4240 and 4246 Cawthra merged together. Vendor wants both lots to be sold
    together. The City has consent for subdivision;

·

the Agreements were entered into on the same
    date, between the same parties, with the Seller accepting both offers at the
    same time, and with the same closing date;

·

the December 7, 2016 letter from Sellers
    counsel responding to the Buyers requisitions advised that we will not be
    completing the Planning Act statements as the Vendor owns [the other Property]
    (also being purchased by your client); and

·

Buyers counsel voiced no objection to the
    structure of the transactions.

[43]

Although at the hearing Buyers counsel was not
    in a position to admit the correctness of the motion judges finding, he did
    concede (as was also conceded in the Buyers factum
[1]
), that closing both Agreements
    simultaneously was permissible under the
Planning Act
and, if the
    deals had closed at the scheduled times, they would have complied with the
Planning
    Act
.
[2]

[44]

The jurisprudence and practice literature
    support the view that conveyances meet
Planning Act
s. 50(15)s
    requirements for
simultaneous
    conveyances  involving the same parties acting in their same respective
    capacities when a vendor
who has entered into two agreements
    to sell abutting lands to the same purchaser simultaneously tenders two deeds
    to the purchaser and the deeds are registered simultaneously, with allowance
    for any inevitable systemic temporal delays or differences
: see the cases
    referred to in
Lapolla v. The Estate of John Bostock
, 2017 ONSC 7448, 92 R.P.R. (5th) 273, at
    paras. 80-81; Weirfoulds LLP,
Ontario Planning
    Practice: Annotated Statutes and Regulations
(Toronto: Thomson Reuters, 2019), at PA 1, s. 50(15);
    Practical Law Canada, Simultaneous Conveyancing When Land in Both Registry and
    Land Titles (Thomson Reuters, October 2020); and Ian Rogers & Alison
    Butler,
Canadian Law of Planning and Zoning
, 2nd ed. (Toronto: Thomson Reuters, 2019),
    at
§5.2.6.

[45]

By entering
into the two Agreements to sell the abutting Properties
    to the same purchaser with the same closing date, the parties clearly treated
    the purchase and sale of the Properties as a single transaction. The Agreements
    contemplated that on closing there would be simultaneous conveyances that
    conformed to s. 50(15) of the
Planning Act
. Accordingly, I do not accept the Buyers
    submission that the Agreements were void.

The adequacy of the tender and the Statutory Declarations

[46]

The Buyers second, but related, submission is based
    on the amendments the Seller made to para. 5 of the Statutory Declaration for
    each Property. Specifically, the Seller blacked out the word not, so that it
    read:

I do [blacked out] retain the fee or the
    equity of redemption in, or a power or right to grant, assign or exercise a
    power of appointment with respect to any land abutting the lands being conveyed
    in the subject transaction.

[47]

The Buyers submit that the Sellers tender of
    documents was invalid because she deliberately amended the standard statutory
    declarations requisitioned by [Buyers] counsel to confirm under oath that the
    [Seller] would retain the fee (title/ownership) in abutting property after
    closing of each of the two transactions. The [Seller] must have been of the
    view that she was attempting to close the transactions in violation of the
    Planning Act.

[48]

I do not accept that submission; it runs counter
    to the weight of the evidence.

[49]

The parties did not exchange draft deeds or
    transfers prior to closing,
[3]
so the motion judge was not able to assess the significance of the amendments
    to the Statutory Declarations in light of the language of the transfer
    documents
[4]

or determine whether the Properties were to be conveyed by a
    single deed or separate transfers.

[50]

If separate deeds were to be used, the amendments to the
    Statutory Declarations could be regarded as the product
of the
    Sellers punctiliousness. Even under a system of sequential electronic
    registration, things do not occur instantaneously. There would be a moment in
    time when the Seller retained the fee in the yet-unregistered deed for the
    abutting Property, but the retained fee would disappear upon the registration
    of the second deed. As such, the Statutory Declarations could be interpreted as
    a technically correct description of the chain of events that would have
    occurred on sequential registration.

[51]

However, the motion judge, at para. 27, seemed
    to suggest that the amendments were errors or mistakes, although his reasons
    are far from clear on the point. The Seller did not adduce any evidence explaining
    the amendments, but in her factum she takes the position that the amendments
    were a curable defect.

[52]

In my view, at the end of the day it matters not
    whether the amendments resulted from an error or from punctiliousness. Three pieces
    of evidence regarding the Sellers conduct demonstrate that the amendments to
    the Statutory Declarations were made in the context of the Sellers communicated
    intention that the Agreements would culminate in the simultaneous conveyance of
    the Properties.

[53]

First, in a letter dated December 7, 2016
    responding to requisitions concerning 4240 Cawthra, Sellers counsel advised
    that [w]e will not be completing the Planning Act statements as the Vendor
    owns 4246 Cawthra (also being purchased by your client). A similar letter was
    sent regarding 4246 Cawthra, indicating that the Seller owned 4240 Cawthra,
    which the Buyers were purchasing.

[54]

Second, on December 12, 2016, Sellers counsel,
    responding to advice from Buyers counsel that his clients were assigning one Property,
    wrote: My client is the owner of both properties and
they
    are part lots
. I just want to mention it in case you missed it.

[55]

Finally, in his email of January 6, 2017 to
    Buyers counsel, Sellers counsel stated, in part:

You told me during our telephonic conversation
    that your client can assign the properties to 2 different parties and then
    raise the planning act compliance issue and that could impair my client's right
    to forfeiture of the deposit.

Please be advised that your client made the
    offer to purchase with full knowledge that properties have merged being
    abutting lands. The amendment to agreement for both properties dated Dec 20th
    2016 also reflects that as the names of the new buyers mirror on both the
    amendments.

If these agreements are to be potentially
    further assigned as suggested, they can be assigned to same assignee and not to
    2 separate assignee's and We expect your client to disclose this letter and the
    fact that the properties are merged to the potential assignee's and if 2
    separate assignee's decide to buy the properties, they will do so at their own
    peril and your client will be responsible for the same.

[56]

These three communications clearly indicate that
    the Seller sought to close the transactions in compliance with the
Planning
    Act
.

[57]

When read in the context of the Sellers communications
    showing that the Agreements, in substance, called for simultaneous conveyances,
    the amendments to para. 5 of the Statutory Declarations cannot be characterized
    as a defect in the tendered documents or a failure to effectively answer the
    Buyers requisition:
Smith v. Tellier
(1974), 47 D.L.R. (3d) 342 (Ont.
    C.A.), at p. 344, revd on other grounds [1976] 2 S.C.R. 255. On the contrary,
    the Seller at all times made it clear that she was ready, willing, and able to
    convey marketable title to the Properties in compliance with the
Planning
    Act
, thereby fulfilling her obligation under s. 15 of the Agreements:
Zender
    v. Ball
(1975), 51 D.L.R. (3d) 499 (Ont. H.C.), at pp. 505-6. Accordingly,
    I see no error in the motion judges conclusion, at para. 29, that the Seller
    did not breach the Agreements on December 8, 2016 when she presented the amended
    Statutory Declarations to the Buyers.

Conclusion on Issue 1

[58]

For these reasons, I see no error in the motion
    judges conclusion that the breach of the Agreements occurred on January 10,
    2017, when the Buyers failed to pay the full amounts owing under the
    Agreements.

VI.     SECOND ISSUE: DID THE MOTION JUDGE ERR BY
    GRANTING PARTIAL SUMMARY JUDGMENT?

[59]

The Buyers submit that the motion judge erred in
    granting partial summary judgment because this is a complex, multi-issue case
    with facts and credibility issues in dispute and which lacks a gating issue that
    might save the parties from needing a trial:
2287913 Ontario Inc. v. Blue
    Falls Manufacturing Ltd.
, 2015 ONSC 7982, [2015] O.J. No. 6760, at paras. 10-11.
    They contend that the motion judges findings will unfairly bind the trial judge
    who considers the issues of relief from forfeiture and the claim for damages.

[60]

I am not persuaded by this submission. On the
    issues as framed by the pleadings and the affidavit evidence, the risk of
    inconsistent findings of fact on the issues of liability, on the one hand, and
    the issues of forfeiture and damages, on the other, is minimal.

[61]

Yet, the risk of inconsistent findings is only
    one of several matters that a motion judge must consider when asked to
    entertain a motion for partial summary judgment. Reduced to its essence, the
    decision in
Hryniak v. Mauldin
, 2014 SCC 7, [2014] 1 S.C.R. 87 promoted
    summary judgment as a procedural tool that offers the prospect, when used in
    the right circumstances, to provide litigants with timely and affordable access
    to the civil court system: at paras. 2-5. Given that simple objective, before
    embarking on hearing a motion for partial summary judgment a motion judge must
    determine whether, in the circumstances, partial summary judgment will achieve
    the objectives of proportionate, timely, and affordable justice or, instead, cause
    delay and increase expense:
Butera v. Chown
,
Cairns LLP
, 2017
    ONCA 783, 137 O.R. (3d) 561, at paras. 29-34;
Service Mold + Aerospace Inc.
    v. Khalaf
, 2019 ONCA 369, 146 O.R. (3d) 135, at para. 14.

[62]

When faced with a request to hear a motion for
    partial summary judgment, a motion judge should make three simple requests of counsel
    or the parties:

(i)    Demonstrate that dividing the determination of this case into
    several parts will prove cheaper for the parties;

(ii)    Show how partial summary judgment will get the parties case
    in and out of the court system more quickly;

(iii)   Establish how partial summary judgment will not result in
    inconsistent findings by the multiple judges who will touch the divided case.

[63]

I do not know what, if any, motion case
    management or triage system was in place in the Central West Region at the time
    this motion for partial summary judgment appeared on the motion judges docket.
    But, had those three requests been made before embarking on the hearing, I
    strongly suspect the answer would be along the following lines: while
    proceeding with a motion for partial summary judgment was not likely to risk
    inconsistent verdicts or findings, it would certainly increase the overall
    costs of litigating this case and delay its end-point even further.

[64]

This case involves a modest amount of money,
    when assessed in proportion to the high costs of litigating civil cases in
    Ontario courts. There is a dispute over who gets to keep the $100,000 in
    deposits. The amount of damages truly at stake is quite uncertain, as the
    Seller filed no evidence on that issue. Absent such evidence, this case has all
    the hallmarks of falling within the monetary limits of a simplified procedure
    action. Bifurcating a simplified procedure action invariably will push legal
    costs into the realm of the disproportionate.

[65]

The issue of delay must be looked at from two
    perspectives. First, the action was commenced on January 30, 2017 and set down
    for trial by the Buyers about 1.5 years later, on September 5, 2018. According
    to the Buyers motion confirmation form, a pre-trial conference was scheduled
    for March 2020. If that pre-trial conference date was the first available date
    (which is unclear from the record), one can certainly understand the temptation
    for a party to prod the action along by bringing a motion for partial summary
    judgment.

[66]

But, when looked at from another perspective, here
    the action sits, two years after being set down for trial. It still has not
    reached a final adjudication on the merits. The main money issues  who gets to
    keep the deposits and whether the Buyers must pay damages  still have not been
    adjudicated. There is every prospect that by the time those issues are
    adjudicated, this action will have languished in the Ontario civil court system
    for four to five years, an unconscionable amount of time for an action involving
    a modest amount of money.

[67]

As a matter of process, I strongly disagree with
    the Sellers decision to move for partial summary judgment and refrain from
    filing any evidence of damages and with the motion judges acquiescence in
    hearing the motion so framed. That said, it is not a ground for appellate
    intervention. To set aside the judgment solely on the basis that the process
    added cost and delay would, in its own turn, only add more cost and delay.

[68]

I appreciate that judicial time for civil
    matters is stretched thin in most regions of this province. But for summary
    judgment to achieve its stated objective  faster and cheaper access to a final
    adjudication on the merits  triage processes must be put in place so that
    judges end up determining a case once and for all on the merits, instead of
    slicing determinations into a series of partial summary judgments.

VII.    DISPOSITION

[69]

For the reasons set out above, I would dismiss
    the appeal.

[70]

The Seller seeks partial indemnity costs of $5,640.10,
    inclusive of disbursements and applicable taxes. That is a fair and reasonable
    amount of costs for the appeal. I would order the Buyers to pay the Seller that
    amount within 30 days of the release of these reasons.

Released: GRS DEC 10 2020

David
    Brown J.A.

I
    agree. G.R. Strathy C.J.O.

I
    agree. Grant Huscroft J.A.

[1]

Buyers factum, para. 52.

[2]

There was no evidence that the Seller owned a third property
    that abutted 4240 or 4246 Cawthra Road.

[3]
Under
    the electronic registration system, the purchasers solicitor generally bears
    the responsibility to prepare and register the electronic documents, including
    the deed/transfer:

Lamont on Real Estate
    Conveyancing,
§1A.1; Law Society of Ontario,
Practice Guidelines for
    Electronic Registration of Title Documents
, Document Registration
    Agreement, section 3. The Buyers solicitor did not provide a draft
    deed/transfer for the Sellers consideration.

[4]

Section
    16 of the Agreements provided that: If requested by Buyer, Seller covenants
    that the Transfer/Deed to be delivered on completion shall contain the
    statements contemplated by Section 50(22) of the
Planning Act
. In
    general terms, s. 50(22) states that where a deed or transfer contains
    prescribed statements by the grantor, grantors solicitor, and grantees
    solicitor to the effect that the deed does not contravene s. 50 of the
Planning
    Act
, any contravention of s. 50 does not have the effect of preventing the
    conveyance of any interest in the land. If the Buyers solicitor had produced
    deeds containing such language, the amendments made by the Seller to the
    Statutory Declarations would be immaterial.


COURT OF APPEAL FOR ONTARIO

CITATION: Manthadi v. ASCO Manufacturing,
    2020 ONCA 839

DATE: 20201222

DOCKET: M52033 (C67556) & M52032
    (C67351)

Thorburn
    J.A. (Motions Judge)

BETWEEN

Sandra
    Manthadi

Plaintiff (Respondent)

and

ASCO
    Manufacturing

Defendant (Appellant/Responding Party)

BETWEEN

Nadeem
    Ahmed Mughal also known as Nadeem Mughal

Plaintiff (Respondent/Responding Party)

and

Bama
    Inc., Abdul Raheem Qureshi, Et Zone Supplies Inc., Zainab Sayeed Noman, Badar
    Sohail Khan,
Mansoor Ahmed Khan
and Muhammad Noman Yusuf also known as
    Muhammad Yusuf

Defendants (
Appellant
)

John S. Contini, for the moving party,
    John S. Contini Law Professional Corporation

Ranbir Mann, for the responding
    parties, ASCO Manufacturing and Nadeem Mughal

Heard: in writing

REASONS
    FOR DECISION

RELIEF SOUGHT

[1]

John S. Contini Law Professional Corporation (Contini), t
he former solicitor for the responding parties ASCO Manufacturing
    and Nadeem Mughal
, brings two companion motions for solicitors liens.

[2]

In
court file C67556 (
the ASCO
    claim), Contini seeks a lien on
the costs awarded to
    his then client
, ASCO Manufacturing, when ASCO Manufacturings appeal was
    allowed.

[3]

In
court file C67351 (
the
    Mughal claim), Contini seeks a lien on the costs awarded to his then client,
    Mughal, when the appeal brought by the opposing party was dismissed, and when
    the $150,000 that Abdul Raheem Qureshi had paid into court was ordered to be
    paid out with costs, in a related appeal.

[4]

The amount of the liens sought by Contini is $6,611.24 in respect of the
    ASCO claim and $19,330.10 in respect of the Mughal claim.

THE LAW

[5]

This court has the jurisdiction to issue a lien or charging order over
    accounts pursuant to s. 34(1) of the
Solicitors Act
or issue a lien
    pursuant to the courts inherent jurisdiction:
Weenen v. Biadi
, 2018
    ONCA 288, 141 O.R. (3d) 276, at para. 10. Such a request is properly
    brought by motion to a single judge, pursuant to ss. 7(2) and (3) of the
Courts
    of Justice Act
, R.S.O. 1990, c. C.43.

[6]

In order for the court to order a solicitors lien pursuant to s. 34(1),
    the solicitor must demonstrate that:

a)

the fund exists;

b)

the property was recovered or preserved through the efforts of the
    solicitor; and

c)

there is some evidence that the client cannot or will not pay the fees.

[7]

An undertaking affords none of the protections
    of a solicitors lien. Solicitors liens and charging orders are intended
    therefore, in appropriate circumstances, to protect lawyers interests by
    granting the lienholder priority over the claims of other creditors. As stated
    in
Dalcor Inc. v. Unimac Group Ltd.
, et al, 2017 ONSC 945, paras.
    45-46:

Solicitors charging orders are a unique right
    granted to solicitors by statute, common law and law of equity to protect
    solicitors services and to encourage and facilitate legal representation of
    persons who cannot necessarily afford to pay for legal services as these
    services are incurred. All persons  must be assumed to be aware that the fund
    is considered as subject to the deduction of the costs to be paid to the
    solicitor who has conducted the litigation which is successful

[A]ny property that is recovered or preserved
    instrumentally through the services of a solicitor are subject to the costs
    incurred by that solicitor.

[8]

In deciding whether to grant a solicitors lien, the
    court must balance the circumstances and equities of each case:
Weenen
,
    at para. 14. Concerns about willingness to pay clearly favour the granting of a
    solicitors lien, which takes priority over the claims of creditors:
Weenen,
at para.

15;
Foley
    v. Davis
, 1996 CanLII 1145 (Ont. C.A.), at para. 2.

ANALYSIS AND CONCLUSION

[9]

In each of these cases, there is a fund in existence.

[10]

ASCO concedes that the full sum of
$6,611.24 was recovered or
    preserved through the efforts of Contini.

[11]

Mughal concedes that the $10,551.48 costs award
    was recovered through the instrumentality of Contini. Mughal claims however,
    that the $150,000 paid out of court on the motion in the related appeal by
    Abdul Raheem Qureshi should be sought in a separate motion.

[12]

In my view, a second motion is not necessary as
    it would serve only to create unnecessary inefficiencies and costs for the
    parties and the court.

[13]

Both
    respondents also claim that:

a)

During the course of their litigation, they paid Contini more
    than the amounts sought; and

b)

Contini has failed to show that either
    respondent cannot or will not pay Continis fees.

[14]

The moving party Contini correctly notes that prior payments for
    other steps in the litigation are not relevant to this motion as there is a
    fund recovered through the instrumentality of Contini that is available to
    protect Continis unpaid receivables. The amounts can therefore be subject to a
    solicitors lien to secure those funds, pending resolution of their dispute.

[15]

Moreover, in both cases, the moving party Contini has adduced
    evidence to support his claim that the responding parties cannot or will not
    pay his fees.

[16]

In
    the case of the ASCO appeal, p
rior to the hearing of the
    appeal, express representations were made that Continis receivables would be
    paid. Only after the appeal was allowed and arrangements made to receive the
    $12,300 costs award did the responding party ASCO refuse to pay Continis
    receivable, and indicate that they intended to assess his invoices.

[17]

In the Mughal matter, the trial Judge awarded
    Mughal $210,000 after he had been defrauded this amount by the defendants. The
    trial judge found that this sum represented Mughals retirement savings and
    borrowed funds, which Mughal must repay. The trial Judge also awarded Mughal
    substantial indemnity costs of $133,501.61. This Court held that the $150,000
    be paid out of court to Mughal, subject to the condition that the funds be
    repaid by Mughal if Qureshis appeal is successful.

[18]

In the Mughal appeal, prior to receipt of the
    funds recovered through the instrumentality of Contini, express representations
    were made to Contini that his receivables would be paid and he continued to
    work on the appeals.

[19]

Moreover, after the appeal was dismissed and the
    $150,000 paid out of court, Mughal resiled from the position that Continis
    receivable would be paid. He refused to pay it and instead suggested that he
    intended to assess his invoices.

[20]

Only after these motions were brought did the responding parties
    take the position that Contini should accept their counsels undertakings to
    hold the funds in trust in lieu of a solicitors lien, and suggest there is no
    evidence they
cannot or will not pay Continis fees.

[21]

For these reasons, I accept that, without a
    solicitors lien, there is a significant risk Mughal will not or may not be
    willing and or able to pay Continis receivables.

[22]

The undertaking provided by Mughal and his
    counsel, Ranbir Mann, affords none of the protections of a solicitors lien in
    the event that Mughal or Mann fail to abide by the undertaking or other
    creditors assert claims against the monies presently held in trust by Mann. It
    is therefore unreasonable to expect Contini to rely on such an undertaking in
    lieu of a solicitors lien.

[23]

Continis
    motions are therefore granted.

[24]

A
    solicitors lien is ordered on funds in an amount to be agreed upon or assessed
    for Continis disbursements and legal fees which now are $6,611.24 in respect
    of ASCO claim. This lien is
in priority to all other charges
    against the $12,300.00 in costs awarded to ASCO, pursuant to the Costs order in
    this appeal and an order directing that the $6,611.24 be paid into court, or
    alternatively held in trust by ASCOs counsel, Ranbir Mann, pending the outcome
    of the assessments and costs.

[25]

A
    solicitors lien is ordered in the amount of $19,330.10 in respect of an amount
    agreed on or assessed for disbursements and legal fees
, in
    priority to any and all other charges that may exist, against the $10,551.48 in
    costs awarded to Mughal on the dismissal of this appeal and the monies paid out
    of court and costs in the Qureshi Appeal and an order that $19,330.10 be paid
    into court, or alternatively held in trust by Mann, pending the outcome of the
    assessments.

J.A.
    Thorburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: McGuinty v. 1845035 Ontario Inc.
    (McGuinty Funeral Home), 2020 ONCA 816

DATE: 20201217

DOCKET: C67290

Strathy C.J.O., Brown and
    Huscroft JJ.A.

BETWEEN

Grant McGuinty

Plaintiff (Respondent)

and

1845035 Ontario Inc. o/a
    McGuinty Funeral Home

Defendant (Appellant)

Eric O. Gionet and Sabrina A. Lucenti,
    for the appellant

Sara Yousefi, for the respondent

Heard by videoconference: October 8, 2020

On appeal from the judgment of Justice Robbie
    D. Gordon of the Superior Court of Justice, dated July 9, 2019, with reasons
    reported at 2019 ONSC 4108, 2019 C.L.L.C. 210-059.

Huscroft J.A.:

[1]

This is an appeal from the judgment of the trial judge finding that the
    respondent was constructively dismissed and awarding him $1,274,173.83 in
    damages, a figure that reflects the nine-year term remaining on the
    respondents fixed term contract, along with commissions, benefits, and
    expenses.

[2]

The appellants principal argument is that the
    trial judge erred in finding that the respondent did not condone the course of
    conduct that he found met the test for establishing constructive dismissal. The
    appellant says that the respondent did not treat the appellants actions,
    either individually or collectively, as a repudiation of the employment
    agreement. In addition, the appellant argues that the trial judge erred in
    calculating the respondents damages.

[3]

I conclude the trial judge did not err in finding that the respondent
    was constructively dismissed, despite the lengthy passage of time that he took
    to accept the appellants repudiation and sue. It was open to the trial judge
    to find that the respondent did not condone the appellants conduct, not least
    because the respondent was incapable of working as a result of the depression
    and anxiety he suffered because of that conduct. The trial judge did not
    misapprehend the evidence, nor did he make any error in calculating the
    damages.

[4]

I would dismiss the appeal for the reasons that follow.

BACKGROUND

[5]

The respondent was the third-generation owner of the McGuinty Funeral
    Home in North Bay, a family business that was started by his grandfather. He had
    taken over the business from his father in 1990 and operated it with his brother.
    By 2012, his brother was no longer able to continue to work in the business and
    the respondent decided to sell the business to the appellant company,
    controlled by Gary and Steven Eide. The respondent was then 55 years of age.
    The funeral home business was the only career he had known.

[6]

It was a term of the agreement that the respondent would enter into a
    Transitional Consulting Services Agreement (TCSA), pursuant to which he would
    continue to work as General Manager of the funeral home for a ten-year period.
    The agreement included a vehicle and fuel allowance and set out a commission
    payment system for prepaid funerals and prearranged funeral packages. Despite
    its lengthy term, the TCSA did not include any provisions dealing with early
    termination. The agreement did, however, include a non-competition clause that
    ran for a 10-year period following termination of the respondents employment.

[7]

The trial judge found that a lack of trust soon developed between the
    respondent and Gary Eide. For example, Gary arranged for an employee to track
    the amount of time the respondent spent at the office and required the
    respondent to complete time sheets. On August 30, 2013, Gary Eide sent a note
    to the respondent informing him that he was no longer permitted to use the
    company vehicle for his personal use. That same day, the respondent sent a
    letter of objection, stating the vehicle was part of the TCSA and he expected
    that he should continue to be able to use it.

[8]

The respondent entered the funeral home during the Labour Day weekend
    and removed some furniture he had stored there. Gary Eide believed that during
    the course of this visit the respondent threw away funeral home files without
    authorization. He changed the locks to the funeral home shortly thereafter,
    without notice to the respondent.

[9]

On September 4, 2013, the respondent commenced a two-week medical leave
    as set out in a note from his doctor. The respondent testified that he
    attempted to drop off the note at the funeral home but on his arrival found
    that he could not unlock the doors. A text exchange with Gary Eide followed in
    which Eide instructed the respondent to drop the note off the next day during
    regular work hours, in order that he could send it to his lawyer. On September
    6, 2013, the respondent sent a handwritten note to Gary and Steve Eide in which
    he stated: I wish to make clear I am on medical leave and am not stepping down
    from my position as general manager at McGuinty Funeral Home.

[10]

On
    September 16, 2013, the respondent was reassessed by his doctor, who provided a
    second note stating that he was Off work for medical reasons while work issues
    are resolved. No further medical information was provided by the respondent.
    The respondent testified that he spoke by telephone with Gary Eide on October
    4, 2013 and that Gary indicated he wanted the respondent back at work. The
    respondent says he met with Gary at the funeral home at his invitation and
    concluded that he was no longer welcome. Gary Eide denied that this meeting
    took place.

[11]

On
    October 14, 2013, the respondent went to the funeral home to attend the funeral
    of his cousin. He testified that his desk had been moved to the kitchen in the basement
    of the funeral home and that his picture, which had hung on the wall by the
    front desk of the funeral home along with pictures of his brother, father, and
    grandfather, had been removed.

[12]

The
    respondent sent an email to Gary Eide on October 28, 2013 in which he raised
    Just a few matters to clear up so we can move forward. In particular, he
    raised commissions he said were owing to him, deductions from his paycheque that
    he considered in breach of contract, and payment for pre-arranged funeral
    packages. He also sought records for all prearranged funerals since October 31,
    2012, so that he could confirm the accuracy of payment he was owed. The email
    stated:

I will drop by the funeral home to give you an update on my
    medical status and continued absence from work-related stress.

Feel free to call me in the meantime to discuss an amicable
    solution to all issues so that we can both move forward. I mentioned this to
    Steve last week but have not heard back.

[13]

The
    respondent applied to his insurer for long-term disability benefits but his
    application was denied and, on April 7, 2014, his internal appeal from that
    decision was dismissed. Gary Eide wrote to the respondent on April 24, 2014
    indicating that the respondent was on an unsupported absence from work and
    asked him to call to discuss his ongoing employment options by May 1, 2014.
    Eide said that if the respondent did not return to active employment, in
    accordance with the contract, benefit coverage would cease.

[14]

The
    respondent never returned to work. There were no further communications between
    the parties until the respondents statement of claim was issued on September
    2, 2015.

The trial judges decision

[15]

The
    trial judge found that Gary Eides decision to require the respondent to return
    the company vehicle would have led a reasonable person in the respondents
    position to conclude that the employer intended to no longer be bound by the
    TCSA. However, he concluded that the respondent did not treat removal of the
    vehicle as a repudiation of the contract and as a result was not constructively
    dismissed on this account.

[16]

The
    trial judge noted that although the respondent had objected to the loss of the
    company vehicle, in his September 6, 2013 letter to Gary Eide the respondent
    stated that he was on medical leave and was not stepping down from his
    position as General Manager. He also noted that although the respondents
    October 28, 2013 email to Gary Eide raised some matters in dispute, including
    commissions and expenses, it did not mention the vehicle. The trial judge
    stated that the respondents express indication that he was not stepping down
    from his employment and his two-year delay in proceeding with his claim speak
    to his not having treated the Defendants removal of the vehicle as a
    repudiation of the employment contract.

[17]

However,
    the trial judge went on to apply the second branch of the test set out by the
    Supreme Court in
Potter v. New Brunswick (Legal Aid
    Services Commission)
, 2015 SCC 10, [2015] 1 S.C.R. 500 and found
    the appellants course of conduct would have led a reasonable person in the
    respondents position to conclude that the appellant no longer intended to be
    bound by the terms of the TCSA. Specifically, the trial judge found the
    appellant:

(i)

improperly terminated the respondents use of
    his company vehicle;

(ii)

recruited a subordinate employee to track the
    respondents time at work, without notifying him;

(iii)

failed to pay the respondent commissions to
    which he was entitled;

(iv)

removed the respondents photograph from the
    funeral home; and,

(v)

changed the locks to the funeral home without
    notice or explanation.

[18]

The
    trial judge then considered whether the appellants conduct was the cause of
    the respondents refusal to return to work. He rejected the appellants
    argument that the respondent no longer wanted to continue to work because he
    regretted having sold the family business, finding that the respondents regret
    arose not simply from having sold the business but from having sold the
    business and the situation turning out as it had.

[19]

The
    trial judge rejected the appellants argument that the extended period of time during
    which the respondent was on sick leave without notice should be understood as
    condoning the appellants conduct. The trial judge stated:

I do not agree. What is required for condonation or
    acquiescence is
acceptance
of the new
    situation, which may be inferred by the employees willingness to remain in the
    altered position for a significant time period, absent other mitigating
    factors.

In the case before me, it cannot be said that [the respondent]
    willingly remained in his position subject to the conduct of [the appellant] for
    the intervening period. The evidence is clear that he did not and could not
    return to work during that period of time due to depression and anxiety cause
    by that very conduct.

[20]

The
    trial judge concluded that the appellant had engaged in a course of conduct
    that would lead a reasonable person in the respondents position to conclude
    that the appellant no longer considered itself bound by the terms of the TCSA,
    and that the respondent accepted this repudiation and was constructively
    dismissed. He awarded the respondent $900,000 in salary, $108,000 for vehicle
    expenses, $90,000 in benefits, $9,000 for a golf membership, and $167,173.83 in
    commissions.

DISCUSSION

[21]

The
    caselaw governing constructive dismissal is not in dispute. It was set out by
    the Supreme Court in
Potter
, at paras. 37-43
. In short,
    constructive dismissal can be established by either (i) the employers breach
    of an essential term of the employment contract or (ii) a course of conduct by
    the employer that establishes that it no longer intends to be bound by the
    employment contract.

[22]

The trial judges review of the evidence was
    careful and balanced. He found that Gary Eide had not acted in an oppressive,
    humiliating, or improper manner, and that neither Eide nor the respondent was
    blameless for the falling out that had occurred. Nevertheless, he found that
    the appellants conduct would lead a reasonable person in the respondents
    position to conclude that the appellant no longer intended to be bound by the
    terms of the TCSA. This was a reasonable finding that was open on the record
    before him and supports his conclusion that the respondent had an election to
    condone the breaches or claim wrongful dismissal.

[23]

The thrust of the appellants argument is that
    the respondent condoned its conduct and as a result was not entitled to claim
    constructive dismissal. I will address the issues in the order raised by the
    appellant.

The respondent did not condone the
    appellants actions

[24]

It is well established that an employers conduct
    that would otherwise support a finding of constructive dismissal under the
    first or second branch of the
Potter
test may be condoned by the
    employee, such that the employee cannot claim to have been constructively
    dismissed. The employee has an election to make  whether to continue to work,
    and so accept the single breach/course of conduct, or to treat that breach/conduct
    as bringing the contract to an end and sue for constructive dismissal. A claim
    that the employee has condoned a breach or course of conduct is a defence to a
    claim of constructive dismissal and the burden is on the employer to establish
    it.

[25]

The difficulty is that condonation must be
    inferred from circumstances in which an employees intentions may be unclear.
    As this court confirmed in
Persaud v. Telus Corporation
, 2017 ONCA 479,
    at paras 14-15, an employee must make his/her election within a reasonable
    period of time. Of course, reasonableness is not a rule but a standard, and it
    is a notoriously vague standard at that. Thus, whether an employee acts within
    a reasonable period of time is a fact-specific determination that must be made
    by the trial judge based on consideration of a number of factors, and the trial
    judges finding is entitled to deference.

[26]

In the usual case, a finding of condonation
    occurs where an employee has continued to work or resumed work despite the
    employers actions. But continuing or resuming work is not determinative of
    condonation; employees must have a reasonable period of time to attempt to
    resolve workplace problems short of litigation: see
Belton v. Liberty
    Insurance Co. of Canada
(2004), 72 O.R. (3d) 81 (C.A.), at para. 26. Care
    must be taken before concluding that an employee has given up his or her right
    to sue for constructive dismissal, and employees unique personal circumstances
    must be taken into account. For example, an employees health, including his or
    her mental health, may be a relevant consideration in determining whether his
    or her conduct implies condonation. Given the wide variety of personal
    circumstances, it is not surprising to find cases in which employees have been
    found not to have condoned breaches or repudiation of their contracts of
    employment despite having continued to work even for relatively extended
    periods of time. Each case turns on its facts.

[27]

In this case, the trial judge found that the
    respondent did not treat withdrawal of the company vehicle  something the
    trial judge considered a serious breach  as a repudiation of the contract. He
    referred to the respondents September 6, 2013 note in which he stated: I wish
    to make clear I am on medical leave and am not stepping down from my position
    as general manager at McGuinty Funeral Home, along with the fact that the
    appellant did not proceed with his constructive dismissal claim until two years
    later.

[28]

The appellant says it follows that the respondent
    must be taken to have condoned the appellants course of conduct considered as
    a whole. I disagree. The trial judges findings on the first branch of the
Potter
test are not incompatible with his findings on the second.

[29]

The respondents October 28, 2013 email to Gary
    Eide came not long after he had informed Eide that he was on medical leave and
    was not stepping down from his position. In that email, the respondent sought
    to clear up a few matters so we can move forward. This included commissions
    he claimed were owing on pre-paid funerals; wrongful deduction of expenses from
    his paycheque; and payment of the marketing allowance component of in-house
    pre-arranged funerals. The respondent sought records going back to October 31,
    2012, in order to review past payments. He said that he would drop by the
    funeral home to provide an update on his medical status and continued absence
    and invited Eide to call him to discuss an amicable solution to all issues so
    that we can both move forward, indicating that he said the same thing to Steve
    Eide the prior week but had not heard from him.

[30]

The respondents September 6 note and his
    October 28, 2013 email indicate that he was attempting to resolve his various
    concerns with the appellant. He was entitled to do so and his efforts in this
    regard do not compel the conclusion that he condoned the appellants course of
    conduct. The main problem in this case appears to be delay. The respondent did
    not purport to accept the appellants repudiation of the contract until September
    2, 2015, when he issued his statement of claim.

[31]

By
    any standard, the period of time taken by the respondent to make his election
    was lengthy. But while it may be reasonable to find that an employers burden
    to establish condonation is discharged where the employee has continued to work
    for a lengthy period of time despite the employers impugned conduct, it is
    more difficult to conclude that condonation has been established where the
    employee has been unable to work because of the very conduct that establishes
    the constructive dismissal.

[32]

The trial judge found that the respondent could
    not be taken to have accepted the new situation  that is, it could not be said
    that he willingly remained in his position as General Manager of the funeral
    home despite the appellants conduct  because he did not and could not return
    to work during that period of time due to depression and anxiety, and that his
    depression and anxiety was caused by the appellant.

[33]

This was the trial judges decision to make and
    the appellant has established no basis to interfere with it. The trial judges
    finding that the respondent condoned the appellants decision to take back the
    company vehicle does not compel the conclusion that the respondent condoned the
    appellants course of conduct considered as a whole. The cumulative effect of
    the appellants actions went to the heart of the respondents role as General
    Manager at the funeral home, and a reasonable person in the respondents
    position would conclude that the appellant no longer intended to be bound by
    the TCSA.

[34]

The respondents delay in making his election must
    be seen in light of the particular circumstances of his employment. The funeral
    home was a family business in which the respondent had worked for over 30 years
    before selling it to the appellant. At that time, the respondent, a licensed
    funeral director, was 55 years of age. The sale was conditioned on the parties
    entering into the TCSA, which effectively guaranteed the respondent employment in
    his chosen profession until he reached retirement age, while continuing the
    goodwill his connection to the business maintained  a business that continued
    to bear his family name. As noted above, the TCSA did not contain a provision
    for its cancellation but the respondent was subject to a non-competition clause
    that would fairly be understood by the respondent to bar him from working in
    his community in the only profession he had known  again, until he reached
    retirement age. The time taken by the respondent to make his election must be
    understood in this context, as well as the depression and anxiety caused by the
    appellant.

[35]

The appellant asserts that there was no medical
    evidence that the respondent was incapable of communicating his election or
    instructing legal counsel to commence or assert a claim for constructive
    dismissal before he did. The short answer to this submission is that the
    question was not whether the respondent was incapable of making or communicating
    his election, but instead whether in all of the circumstances, including the
    passage of time, it should be inferred that he accepted the new situation
    that he condoned the appellants course of conduct and so lost his right to sue
    for constructive dismissal. The trial judge was entitled to find that the
    respondent did not return to work, could not return to work, and did not
    condone the appellants actions. These findings were open on the record and I
    would not interfere with them.

[36]

Finally, there is no merit to the submission
    that this was merely a contractual interpretation dispute, as in
Chapman v.
    G.P.M. Investment Management
, 2017 ONCA 227, 2017 C.L.L.C. 210-033, leave
    to appeal refused, [2017] S.C.C.A. No. 195. Although a dispute over the
    calculation of a bonus or a commission does not necessarily constitute a
    constructive dismissal, the finding of constructive dismissal in this case
    flows from the entire course of the appellants conduct, only one part of which
    concerned payment of the respondents commission.

The trial judge did not misapprehend the
    evidence

[37]

The appellant argues that the trial judge erred
    by ignoring evidence and by failing to make necessary findings of fact
    concerning key events. I would reject these arguments.

The trial judge did not ignore evidence

[38]

The appellant submits that the trial judge
    ignored the evidence of three current or past employees who testified that
    events alleged by the respondent, as part of his narrative about the toxicity of
    the workplace, did not occur.

[39]

There is no merit to this submission. It is well
    established that a misapprehension of evidence must go to the substance of a
    matter, rather than to the detail, and must be material rather than peripheral:
R. v. Lohrer
,
2004 SCC
    80, [2004] 3 S.C.R. 732, at para. 4. A trial judge need not make findings on
    every disputed matter in order to provide meaningful reasons for a decision.

[40]

The evidence of the three current or past
    employees concerned a matter that was ultimately peripheral, for the trial
    judge found that Gary Eides conduct toward the respondent was not oppressive,
    humiliating, or improper. Thus, there was no need to address this evidence in
    his decision. The trial judge did not misapprehend the evidence.

The trial judge did not fail to make necessary findings of fact

[41]

The appellant acknowledges that the trial judge
    was not required to refer to all of the evidence tendered at trial but argues
    that he failed to make findings on a significant matter that might have changed
    the decision. Specifically, the appellant says that trial judge should have
    resolved conflicting evidence concerning a phone call and meeting the appellant
    says took place on December 13, 2013.

[42]

Gary Eide testified that the respondent called
    him on December 13, 2013. He was very distraught and crying. According to
    Eide, the respondent apologized, expressed remorse, and asked how he could
    return to work. Eide testified that the respondent just didnt sound like he
    was in good shape on the phone call. Eide said that he told the respondent to
    get a doctors approval before seeking to return. A few hours later the
    respondent showed up, unannounced, at the funeral home. Eide claimed that the
    respondent again told him that he was ready to return to work. Eide testified
    that the respondent did not look well  that he was shaking and crying  and that
    he was concerned for him. Eide said he reiterated that the respondent had to
    see his doctor before returning to work and that the respondent became upset
    and left the funeral home. The respondent denied that this meeting took place.

[43]

The appellant says that this evidence suggests
    that the respondent did not treat its conduct as a repudiation of the TCSA and
    that this could have affected the analysis under either or both branches of the
Potter
test. The respondent argues that the trial judges decision,
    read as a whole, suggests that he must have concluded that the meeting did not
    occur, but, in any event, whether the meeting occurred was peripheral to the
    condonation issue given the trial judges conclusion that the respondent did
    not and could not return to work because of his depression and anxiety.

[44]

The trial judges decision to recount the
    evidence concerning the meeting alleged to have taken place on December 13,
    2013 suggests that the evidence was relevant to the question of condonation. Having
    raised the conflict, the trial judge should have either resolved it or to explained
    why it was not necessary to do so.

[45]

Nevertheless, the trial judges failure to
    resolve this conflict ultimately does not undermine his finding that the
    respondent did not condone the appellants actions and was constructively
    dismissed. That finding is well supported by the record. In any event, the respondents
    inability to return to work during the relevant time is key to the trial
    judges decision. The respondent may well have preferred to return to work if
    his concerns with the appellants actions had been resolved. But they were not,
    and in all of the circumstances of this case the mere expression of a desire to
    return to work relatively early in the course of the parties dispute would not
    constitute condonation of the employers course of conduct.

DAMAGES

[46]

The lions share of the damages awarded by the
    trial judge  $900,000  reflects salary for the nine years that remained on
    the fixed-term contract. The appellant does not contest the trial judges
    finding in this regard, which flows from this courts decision in
Howard v.
    Benson Group Inc.
, 2016 ONCA 256, 129 O.R. (3d) 677, leave to appeal
    refused, [2016] S.C.C.A. No. 240.

[47]

The appellant argues that the trial judge erred
    in calculating damages in three respects. First, the trial judge accepted the
    respondents guess as to the value of the company vehicle and fuel allowance.
    Second, the trial judge awarded damages for commissions on pre-arranged
    funerals even though the respondent failed to prove actual damages based on
    figures that were available to him. Third, the trial judge awarded an arbitrary
    amount of damages for the respondents employee benefits rather than requiring
    the respondent to prove them.

[48]

I would reject these arguments.

[49]

First, in answer to the question as to the
    approximate value of the company vehicle, including lease expense, insurance,
    fuel and maintenance, the respondent testified that when he was ready to sell
    the business it was roughly $12,000-15,000 annually. This was information
    within his knowledge and his evidence was not challenged by the appellant, nor
    did the appellant lead evidence establishing that the replacement vehicle
    expense was unreasonable.

[50]

The trial judges decision to use the low end of
    the respondents range and award him $12,000 per year for nine years, or
    $108,000, was reasonable.

[51]

Second, although the trial judges award of
    damages for commissions on pre-arranged funerals was based on an estimation, that
    estimation was necessary because of the nature of pre-paid funerals. The trial
    judge agreed with the appellant that the respondents damages assessment was
    untenable, because it could not be said with certainty how many persons with
    pre-arranged funerals could be expected to die during the period of the
    respondents commission entitlement, what the costs of their funerals would be,
    and how that cost would be apportioned between fees and disbursements.

[52]

In these circumstances, the trial judge
    calculated the respondents average monthly commission during an eleven-month
    period for which payroll records were available, in addition to email correspondence
    from Gary Eide, and multiplied that amount by the remaining 108 months of the
    contract, arriving at a figure of $125,350. In my view this was a reasonable
    approach, one that follows the instruction set out by this court in
Martin
    v. Goldfarb
(1998),
41
    O.R. (3d) 161 (Ont. C.A.), leave to appeal refused,

[1998] S.C.C.A. No. 516, which the
    trial judge cited.

[53]

At the hearing, the appellant did not pursue the
    argument it made in its factum  that the respondent could have obtained
    specific reports from third party insurance companies that would have
    established a factual basis for the calculation of damages. The closing
    submissions of the respondents trial counsel show that the trial judge was
    apprised of the relevant issue and there is no basis to interfere with his
    decision on the matter.

[54]

Third, the trial judge considered it appropriate
    to approximate the value of the respondents benefits, including medical,
    dental, life and disability coverage, at 10%, rather than the 15% of salary
    sought by the respondent. This approach has been followed in several trial
    decisions, including
Ruston v. Keddco Mfg. (2011) Ltd.
, 2018 ONSC
    2919, 2018 C.L.L.C. 210-051, affd 2019 ONCA 125, which the trial judge cited,
    as well as by this courts decision in
Cormier v. 1772887 Ontario Limited
    (St. Joseph Communications)
, 2019 ONCA 965, 2020 C.L.L.C. 210-01. This
    approach was reasonably followed in this case. The cost of the respondents
    benefits would have been information known to the appellant and the appellant
    proffered no evidence to the contrary. There is no basis to interfere with the
    judges decision in this regard.

CONCLUSION

[55]

I
    would dismiss the appeal.

[56]

I
    would award the respondent costs in the agreed amount of $30,000, all
    inclusive.

Released: December 17, 2020 (G.R.S.)

Grant
    Huscroft J.A.

I agree.
    G.R. Strathy C.J.O.

I agree.
    David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Morgado (Re), 2020 ONCA 789

DATE:  20201214

DOCKET: C68140

Rouleau, Benotto and Miller
    JJ.A.

IN THE MATTER OF: Pedro Morgado

AN APPEAL UNDER PART XX.1 OF THE
CODE

Erin Dann, for the appellant

Tanya M. Kranjc, for the respondent,
    Attorney General of Ontario

Michele Warner, for the respondent,
    Person in Charge of the Centre for Addiction and Mental Health

Heard: October 23, 2020 by
    video conference

On appeal against the disposition of the
    Ontario Review Board, dated February 4, 2020, with reasons dated February 25,
    2020.

REASONS FOR DECISION

[1]

Pedro Morgado appeals from the February 4, 2020
    disposition of the Ontario Review Board, which ordered his continued detention
    on the General Forensic Unit of the Centre for Addiction and Mental Health (CAMH)
    with privileges up to and including community living in accommodation approved
    by the person in charge. Mr. Morgado had sought a conditional discharge.

[2]

On appeal, Mr. Morgado does not dispute the
    finding that he continues to pose a significant risk of serious harm to the
    public. He appeals on the basis that the disposition was not appropriate because
    it was not the least onerous or least restrictive disposition necessary to protect
    the public. He argues the Board erred in two ways: (1) by failing to consider
    all relevant factors under s. 672.54 of the
Criminal Code
; and (2) by finding
    that a detention order was required where that finding was not supported by the
    evidence.

[3]

We do not agree that the Board erred and
    accordingly dismiss the appeal. We are, nevertheless, concerned that not enough
    has been done to move Mr. Morgado into appropriate community living. It is not
    contested that he is ready for such a move and has been for some time. We
    understand that Mr. Morgado is difficult to place because of the nature of the
    index offence, his problems controlling his anger, and his restrictive geographic
    demands. But there needs to be a renewed effort in working with him to generate
    some options for placement.

Background

[4]

Mr. Morgado is 56 years old and trained as an
    electrician. In 2007, he was found NCR with respect to charges related to
    arson. He had set a fire in an elevator of the residential apartment building
    in which he was living. The fire necessitated the evacuation of 700 residents
    and caused $300,000 in damage.

[5]

Although Mr. Morgado had interactions with the
    mental health system prior to the index offence, including a four-day admission
    to the Clarke Institute in 1998 due to depression, suicidal thoughts, and
    fantasies of killing his foreman with a hammer, he has not been diagnosed with a
    major mental disorder. The Board adopted the conclusions of the hospital report
    that Mr. Morgado has a history of aggression when his needs are not met, or in
    the face of minor interpersonal conflict or perceived provocation. He becomes
    aggressive when he has feelings of being disrespected, sabotaged, or targeted.

[6]

Mr. Morgados behaviour in hospital has been
    mixed. By the fall of 2014, his treatment team began to plan for his discharge.
    He was offered shared accommodation, which he refused on the basis that something
    bad would happen if he lived with other people. Following some incidents of
    aggression in 2015, he was transferred back to the secure unit where he
    remained until 2018.  Thereafter, he was returned to the general forensic unit
    and granted community passes, which he exercised without incident. He
    participated in therapeutic and recreational programming from February to
    November 2018. Although there were five reported incidents in 2019 of Mr.
    Morgado displaying intense anger towards members of the treatment team, he
    was otherwise typically calm and polite.

[7]

In December 2019, Mr. Morgado attended job
    interviews while on passes and reported that he obtained a job as an
    electrician at a bakery, working 60 hours per week plus 20 hours of travel
    time. The treatment team did not approve the employment as it had insufficient
    information (owing, at least in part, to not receiving documentation
    inadvertently misdirected by Mr. Morgado) and because of concerns about the
    feasibility of Mr. Morgado transitioning overnight from 12 years of
    unemployment to a very demanding work schedule.

[8]

The Board found that there was no realistic plan
    for release into the community. Although the treatment team continued to support
    community living for Mr. Morgado in approved accommodation, the Board found
    that Mr. Morgado seriously underestimates the stresses of living and working
    in the community and his potential reaction to those stresses. The Board
    accepted the position of the hospital that they need to approve and monitor Mr.
    Morgados accommodation so as to manage the risk that he poses to others in his
    vicinity.

Analysis

[9]

As explained below, we do not agree that the
    Board made any of the errors alleged.

[10]

Mr. Morgado argues that in arriving at its
    disposition, the Board failed to meaningfully consider the negative impact of
    the detention order on Mr. Morgados mental condition and on his reintegration
    into society.

[11]

The problem identified by Mr. Morgado is that although
    the Board accepts that he is ready for community living  and has been for some
    time  the detention order itself prevents this from happening. This is because
    he does not qualify for the typical options for community living available to
    persons under a detention order. First, he does not suffer from a major mental
    disorder, which means that it is likely that mental health supportive housing
    will not accept him. Second, the index offence of arson in a residential
    building similarly disqualifies him from many options.

[12]

We do not agree that the Board failed to consider
    any relevant factors in coming to its disposition, including Mr. Morgados
    mental health and the need to reintegrate him into society through community
    living and employment. The Boards reasons address these issues in numerous
    places. The Board acknowledged the need for securing appropriate community
    housing for Mr. Morgado, but identified practical obstacles, including the fact
    that he seriously underestimates the stresses of living in the community. The
    Board noted that Mr. Morgado refused shared accommodation in 2014, but at his
    hearing proposed he be released into a shelter where the stresses would be much
    greater than those in the shared accommodation previously offered to him. The
    Board now also accepts that given Mr. Morgados anger control issues, it would
    be improvident to place him in a cooperative living situation with other
    people. The Board, in its reasons, exhorted the hospital to be creative in
    finding accommodation that addresses the proper management of risk and but [
sic
]
    also moves Mr. Morgado forward.

[13]

Furthermore, we do not agree with Mr. Morgados
    argument that the Board erred in concluding that a conditional discharge would
    not adequately protect society from the risk of harm he poses. No release plan
    has been identified that would not put Mr. Morgado in a living situation that
    would risk violent confrontations with others. The Board concluded that Mr.
    Morgado has great difficulty in navigating the ordinary stresses of day-to-day living
    and working with other people. In his case, he has a propensity to react
    aggressively and violently to comparatively minor provocation. He presents a
    risk that must be managed for the safety of others. The Board gave adequate
    reasons for rejecting a conditional discharge, identifying, in particular, Mr.
    Morgados failure to appreciate the stresses of living and working in the
    community and his potential reactions to those stresses, his need for support
    in order to transition back into the community after 18 years, and the need to
    identify realistic accommodation.

[14]

We conclude that the Board made no errors in its
    disposition and that its findings are entitled to deference. We are, however,
    concerned by the lack of progress towards securing the conditions necessary for
    Mr. Morgado to return to the community and find employment. His skills are
    seemingly in demand given the ease with which he obtained an offer of
    employment in 2019. The Board found, reasonably, that he cannot be left to judge
    for himself which employment and living opportunities are suitable, and that the
    degree of supervision required can currently only be accomplished under a
    detention order. Like the Board, we urge the hospital to work with Mr. Morgado
    to secure suitable accommodation that can hopefully become a springboard to
    greater reintegration into society.

Disposition

[15]

The appeal is dismissed.

Paul
    Rouleau J.A.

M.L.
    Benotto J.A.

B.W.
    Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Murray v.
    8165246 Canada Inc., 2020 ONCA 832

DATE: 20201217

DOCKET: M52000

(C66936 & C67356)

Brown J.A.
    (Motion Judge)

BETWEEN

Emily
    Murray and 2327342 Ontario Inc.

Plaintiffs
    (Respondents in C66936/

Appellants
    in C67356/

Moving
    Parties)

and

8165246
    Canada Inc., David Star and Pier 21 Asset Management Inc.

Defendants
    (Appellants in C66936/

Respondents
    in C67356/

Responding
    Parties)

Cynthia L. Spry and Michael Bookman,
for the moving parties

Igor Ellyn and Kathryn J. Manning
, for the responding parties

Heard: December 9, 2020 by video conference

REASONS
    FOR DECISION

[1]

These appeals will be heard together. For ease
    of reference, I will refer to
Emily Murray and 2327342
    Ontario Inc. as the Plaintiffs and 8165246 Canada Inc., David Star, and Pier
    21 Asset Management Inc. as the Defendants.

[2]

The Defendants filed their notice of appeal in
    C66936 on May 15, 2019; the Plaintiffs filed theirs in C67356 on August 28,
    2019. The appeals are not yet perfected.

[3]

The Plaintiffs move for directions regarding
    motions for leave to file fresh evidence that have been filed by both sides.

[4]

The Defendants have filed a fresh evidence
    motion seeking leave to adduce billing information from the Plaintiffs
    valuation expert, John Temple, about the work he performed for the trial. If
    leave is granted, the Defendants intend to rely on the fresh evidence to argue
    that Mr. Temple was not an independent expert, with the result that the trial
    judge should have rejected his valuation opinion. The trial judge refused to
    entertain a motion by the Defendants to reopen the trial on that basis; the
    documents constituting the Defendants fresh evidence were filed on that
    motion:
Murray v. Pier 21
(10 July 2020), Toronto, CV-15-10906-CL
    (Ont. S.C.).

[5]

The Plaintiffs have filed their own fresh
    evidence motion that seeks: (i) a ruling that the Defendants fresh evidence is
    cloaked with litigation privilege or, (ii) in the alternative, leave to file
    their own fresh evidence consisting of correspondence between Plaintiffs
    counsel and Mr. Temple. That correspondence has been filed with this court on a
    sealed basis. I have not been able to review it, either in the present motion
    materials or in the appeal case file.

[6]

In the motion before me, the Plaintiffs request
    a protocol, or sequencing order, that would first require a panel to
    determine whether the Defendants fresh evidence is privileged. If it is not,
    then the Plaintiffs would seek from the panel hearing the appeal leave to
    adduce the Plaintiffs fresh evidence. However, under the proposed protocol,
    the Plaintiffs redacted fresh evidence would not be disclosed to the
    Defendants until after the first panel determines that the Defendants fresh
    evidence is not privileged.

[7]

The Defendants submit that no protocol is
    required.

[8]

I think some directions are appropriate in the
    circumstances. As set out in section 7.2.6 of the
Practice Direction Concerning Civil Appeals at the Court of Appeal for
    Ontario, (March 1, 2017)
, a motion for fresh evidence is
    considered by the panel hearing the appeal. I see no reason to depart from that
    practice.

[9]

However, the assertions of privilege in respect
    of both sets of fresh evidence, coupled with the Plaintiffs concern about
    being taken to waive privilege in respect of the evidence (which it is not) by
    making submissions on it, potentially complicate how the panel would structure
    its treatment of the fresh evidence motions. In those circumstances, the
    parties should proceed in the following manner:

(i)

The parties must perfect their appeals;

(ii)

Once they do, the parties must then secure a
    hearing date for the appeals from the Appeal Scheduling Unit;

(iii)

As soon as they obtain a hearing date for the
    appeals, the parties should contact me immediately to set up an appeal
    management conference. They can make the appropriate arrangements through Ms.
    Lily Miranda, Appeal Scheduling Unit:
lily.miranda@ontario.ca
;

(iv)

At the appeal management conference, we will review
    the status of the fresh evidence motions and what, if anything, remains to be
    done with them. I will then contact the President of the panel scheduled to
    hear the appeals to apprise the President of the fresh evidence motions and
    seek the panels guidance as to how it wishes to handle the fresh evidence
    applications.

[10]

Through the process set out above, the parties
    will be informed of the procedure that the panel intends to follow.

[11]

Finally, the Plaintiffs
    served a 54-page factum in C67356 without first securing an order from this
    court permitting them to do so. In any event, the Defendants have filed their
    factum in response. The Plaintiffs now seek an order allowing them to file the
    54-page factum. Although the Plaintiffs have put the cart before the horse, I
    will not order them to file a shortened factum. That would only increase
    overall costs. Instead, I authorize the filing of the Plaintiffs 54-page
    factum in C67356 but order the Plaintiffs to pay the Defendants the costs of
    this motion fixed at $2,000 payable by December 31, 2020.

David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: National Bank of Canada v.
    Guibord, 2020 ONCA 764

DATE: 20201201

DOCKET: M51714 (C68496)

Hourigan, Trotter and Jamal
    JJ.A.

BETWEEN

National Bank of Canada

Plaintiff

(Respondent/Moving Party)

and

Marcel Guibord

Defendant

(Appellant/Responding Party)

Michael S. Myers, for the moving party

Marcel Guibord, acting in person

Heard: in writing

COSTS ENDORSEMENT

[1]

As the successful party, the National Bank of
    Canada is entitled to costs, which we fix in the amount of $5,000 all
    inclusive, payable within 30 days of this order.

C.W. Hourigan
    J.A.

Gary
    Trotter J.A.

M.
    Jamal J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Ontario (
Funeral, Burial and Cremation Services
    Act, 2002
, Registrar) v. 1868653 Ontario Inc. (Newcastle Funeral Home
    Ltd.) 2020 ONCA 771

DATE: 20201203

DOCKET: C67943

Strathy C.J.O., Rouleau and Coroza JJ.A.

BETWEEN

Registrar,
Funeral,
    Burial, and Cremation Services Act, 2002

Appellant

and

1868653 Ontario Inc. o/a
    Newcastle Funeral Home Ltd.

Respondent

Bernard C. LeBlanc and Anastasia-Maria
    Hountalas, for the appellant

Nicholas C. Tibollo and Frances
    Tibollo, for the respondent

Heard and released orally: November
    26, 2020 by video conference

On appeal from the judgment of Justices Katherine E.
    Swinton, Nancy L. Backhouse and Lise G. Favreau of the Superior Court of
    Justice, Divisional Court, dated October 22, 2019 with reasons reported at 2019
    ONSC 6091.

REASONS FOR DECISION

[1]

The appeal is dismissed, substantially for the reasons of the Divisional
    Court.

[2]

The Licence Appeal Tribunal found that the Registrar had not met the
    test in s. 14(1)(d)(iii) of the
Funeral, Burial, and Cremation Services
    Act, 2002
.

[3]

We do not accept the appellants submission that the report of Public
    Health Ontario and the evidence of Dr. Copes constituted reasonable grounds for
    belief that there was a risk to public health and safety. While Public Health
    Ontario did not recommend the respondents method, it did so on the basis that
    further research was required before it could do so.

[4]

The Tribunal had other evidence before it, as summarized in para. 43 of
    the Divisional Courts reasons. The Divisional Court concluded:

After considering all the evidence, the Tribunal concluded that
    there is no evidence that low temperature AH, as carried out by NCFH, does not
    destroy prions.

[5]

As the Divisional Court observed, deference is owed to the Tribunals
    findings of fact. On this record, the evidence did not discharge the statutory
    onus on the Registrar. As the Divisional Court found, the onus was on the
    Registrar to establish reasonable grounds to believe there
was
a risk to the public health and safety from the
    respondents operation. The onus was not on the respondent to prove that the
    operation was safe.

[6]

Having regard to the absence of evidence that the respondents operation
    was a risk to public health and safety, and having regard to the statutory
    standard applicable to the Registrars responsibilities, we agree with the
    Divisional Court that the Tribunal did not err in finding that the
    precautionary principle had no application.

[7]

We also agree with the Divisional Courts decision that the Tribunal did
    not err in failing to impose conditions on the respondents business. The issue
    was not raised before the Tribunal, and the Divisional Courts decision in this
    regard was not unreasonable.

[8]

The appeal is dismissed with costs to the respondent in the amount of
    $30,000, inclusive of disbursements and all applicable taxes.

G.R. Strathy C.J.O.

Paul Rouleau J.A.

S. Coroza J.A.