COURT OF APPEAL FOR ONTARIO

CITATION: Chatsikiriakos v. Kilislian, 2020
    ONCA 378

DATE: 20200612

DOCKET: C67935

Doherty, Hourigan and Fairburn
    JJ.A.

BETWEEN

Kathy Chatsikiriakos

Plaintiff (Respondent/Appellant by
    Cross-Appeal)

and

Rita Kilislian and Rita
    Kilislian Dentistry Professional Corporation, C.O.B. as Downtown Dental
    Associates

Defendants (Appellants/Respondents by
    Cross-Appeal)

Mark H. Arnold, for the respondent (plaintiff)

Avrum D. Slodovnick, for the appellants
    (defendants)

Heard: In-writing

On appeal from the judgment of Justice Cavanagh
    of the Superior Court of Justice, dated December 23, 2019

REASONS FOR DECISION

[1]

The appellants (Kilislian) were defendants in
    a wrongful dismissal action brought by the respondent (Chatsikiriakos). It
    appeared the parties had settled the action on the eve of trial. When the
    settlement funds were not forthcoming, the respondent brought a motion under r.
    49.04 of the
Rules of Civil Procedure
for judgment in the terms of the
    settlement. The motion judge granted judgment. The appellants appeal from that
    judgment.

[2]

The motion judge also fixed the costs of the
    action on a partial indemnity basis in favour of the respondent in the amount
    of $51,557.12. The respondent seeks leave and, if leave is granted, appeals
    from that costs order.

[3]

For the reasons that follow, the appeal is dismissed,
    and the motion for leave to appeal costs is dismissed.

[4]

The appellants operated a dental practice. The
    respondent worked at the practice as a dental hygienist. The respondent claimed
    in about April 2017, the appellants proposed to unilaterally and fundamentally alter
    the terms of her employment, including her compensation. She eventually
    commenced a lawsuit, alleging constructive wrongful dismissal.

[5]

The appellants defended on various grounds. They
    alleged there had been no material change in the respondents working
    conditions, and the respondent had indicated she was anxious to continue her employment.

[6]

The respondent served two Offers to Settle on
    the appellants, one in April 2018 and the second in May 2018. In May 2019, right
    before the trial was scheduled to begin, the appellants accepted the second
    offer made a year earlier. That offer had two terms:

·

payment to the plaintiff of
$75,000
(emphasis in the original); and

·

costs to the plaintiff in an amount to be agreed
    upon by counsel or following an assessment.

[7]

The appellants, through counsel, unequivocally
    accepted the offer. In accepting the offer, counsel for the appellants
    indicated, we consider the case settled.

[8]

The parties advised the trial court the matter
    had been settled and made arrangements to speak to costs. In June 2019, about
    one month after the appellants had accepted the settlement offer, counsel for
    the appellant advised the trial court the settlement was in place and he
    expected to be in funds that day. The funds were not paid to the respondent.

[9]

On the motion, the appellants argued that
    judgment should not issue in the terms of the settlement agreement for two
    reasons. First, the terms of the purported settlement were uncertain and did
    not contain terms essential to the settlement. The appellants submitted, in the
    settlement of wrongful dismissal claims, the classification under various heads
    of damages of the amount paid in the settlement is an essential element of the
    settlement agreement. Without that classification, the agreement to pay $75,000
    to settle the claim, did not constitute a settlement agreement.

[10]

Second, the appellants argued, if there was a
    settlement agreement, the motion judge should exercise his discretion and
    decline to enforce the agreement on public policy grounds. The appellants
    submitted, among other things, the manner in which the respondent litigated the
    claim, in particular the use of threats and misrepresentations to intimidate
    and defame Mr. Curnew, the husband of Rita Kilislian, required the court to
    reject the settlement which was the product of those tactics.

[11]

The motion judge considered and rejected the
    arguments. The same arguments are renewed on appeal. We, too, reject them.

Did the agreement contain the essential terms
    of the settlement?

[12]

It cannot be argued the classification of the
    amount of a settlement into various heads of damages is always an essential
    element of any agreement to settle a wrongful dismissal claim. This court has
    held the exact opposite:
Perri v. Concordian Chesterfield
, 2003
    CarswellOnt 6240, aff 2004 CanLII 2904.

[13]

A settlement is an agreement. The categorization
    of the parts of the settlement under various heads of damage may or may not be
    an essential term of any particular settlement agreement. In the present case,
    there was nothing in the language of the Offer to Settle, or in the terms of
    the appellants acceptance of the offer to suggest the characterization of the
    amounts of the settlement under various damage heads was essential to, or played
    any part in, the agreement. Nor do any of the communications by the parties with
    the trial court, immediately after the settlement, lend any credence to the
    appellants assertion they regarded the characterization of the amounts of the
    settlement under various heads of damage as essential to the existence of the
    agreement they had entered into on the advice of counsel.

[14]

The two emails relied on by the appellants do
    not assist their argument. The first, dated May 19, 2019, specifically acknowledges
    the $75,000 settlement and goes on to propose a variation of that settlement.
    The variation in the settlement agreement proposed by the appellants addresses
    various concerns, including costs of the action, and the allocation of the
    settlement amounts as aggravated and moral damages.

[15]

The June 21, 2019 email also offers no support
    for the position there was no settlement agreement. Instead, in that email, counsel
    for the appellants suggests certain advantages to both parties in characterizing
    the amount agreed upon in the settlement in the manner suggested by counsel for
    the appellants.

[16]

There was nothing vague or uncertain about the terms
    of the settlement agreement. The appellants agreed to pay the respondent
    $75,000. The tax or other regulatory consequences of that payment, if any, to
    either party, were not any part of the negotiations leading up to the agreement.
    The absence of terms designating the settlement amount under various heads of
    damage had no impact on the existence or enforceability of the settlement
    agreement.

Should the motion judge have refused to
    enforce the settlement on public policy grounds?

[17]

A court has a discretion to decline to enforce a
    settlement agreement on public policy grounds. That discretion is exercised
    sparingly. The moving party must demonstrate sufficiently compelling
    circumstances to justify the inevitable negative impact non-enforcement of an
    agreement will have on both the finality principle and the reasonable
    expectations of litigants who enter into settlement agreements.

[18]

As with the exercise of any discretionary power,
    this court will defer to the motion judges exercise of his discretion, absent
    demonstration of:

·

a clearly unreasonable result;

·

a material misapprehension of the evidence, or a
    failure to consider material evidence; and

·

a failure to correctly apply the controlling
    legal principles.

[19]

The motion judge addressed the arguments put
    forward by the appellants for non-enforcement, some of which are renewed in
    this court (reasons, paras. 10-15). He concisely and clearly rejected each. In
    doing so, he made his reasons for rejecting the arguments clear. For example,
    in addressing the argument the respondent had threatened prosecution of the
    appellants and Mr. Curnew, the motion judge observed the so-called threat
    consisted of one word in a lawyers letter sent long before the respondent made
    any settlement offer, and more than two years before the appellants accepted
    the settlement offer.

[20]

The motion judge also noted the absence of any
    evidence from Mr. Curnew on the motion. Mr. Curnew did not provide evidence
    that he was intimidated or coerced by the respondents litigation tactics, or
    that those tactics motivated him to encourage or advise the appellants to
    accept the settlement offer.

[21]

The appellants have not convinced us we should
    override the motion judges exercise of his discretion. In seeking to avoid the
    consequences of their settlement agreement, the appellants focused on the
    respondents litigation tactics. The respondent pointed the finger right back
    at the appellants and their litigation tactics. This litigation was personal
    and quickly became nasty. There is plenty of blame to go around on both sides
    for this unfortunate development. However, the tone of the litigation, the product
    of conduct on both sides, offers no reason to permit the appellants to walk
    away from their agreement to settle the claim and thereby deny the respondent
    the benefit of that agreement negotiated by the parties and their lawyers.

The motion for leave to appeal costs

[22]

The respondent seeks leave to appeal the costs
    order made in respect of the settled action. There is no appeal from the costs
    order on the r. 49 motion.

[23]

This court grants leave to appeal costs
    sparingly. The respondent advances two submissions in support of the leave
    application. The respondent submits the motion judge erred in law by
    effectively refusing to consider whether the respondent was entitled to costs
    on a substantial indemnity basis. The respondent further submits, even if the motion
    judge properly held costs should be on a partial indemnity basis, he erred in
    awarding an amount substantially less than the amount claimed by the respondent
    without providing adequate reasons for doing so.

[24]

The motion judge did not refuse to consider the
    respondents claim for costs on a substantial indemnity basis. He acknowledged
    the respondent sought costs on that scale (reasons, para. 20). In refusing
    costs on a substantial indemnity basis, the motion judge noted the action was
    settled, obviously an important consideration in fixing costs of the action. The
    motion judge also determined he could not, on the record before him, make the
    kind of detailed credibility-based factual findings necessary to warrant costs
    on a substantial indemnity basis. In short, the record produced by the
    respondent and the forum chosen by the respondent to litigate costs did not lend
    themselves to the kind of analysis and fact-finding required to justify costs on
    a substantial indemnity basis.

[25]

Contrary to the respondents submission, the
    motion judge did consider whether he should order costs on a substantial
    indemnity basis. The reasons he gave for declining to do so were relevant to that
    determination, and supported by the evidence. It was for the motion judge to
    decide how much weight to give to those factors. We see no reason to grant
    leave on this issue.

[26]

The other argument advanced by the respondent addresses
    the quantum of the partial indemnity costs order made by the motion judge. The respondent
    contends the motion judge substantially reduced the quantum without providing
    any reasons.

[27]

The motion judge offered the following reasons
    for the quantum fixed in his costs order:

·

the action was settled (para. 22);

·

the action was brought under the simplified
    rules. The factual and legal issues were not complex (para. 27);

·

the manner in which the litigation was conducted
    contributed to the amount of time expended by counsel for the plaintiff (para.
    27); and

·

the time claimed by counsel for the plaintiff
    was far higher than is reasonable and proportionate having regard to the
    factors in r. 57.01 (para. 27).

[28]

The respondent suggests the motion judges
    reference to the manner in which the litigation was conducted referred only to the
    manner in which the appellants conducted the litigation. That is incorrect. The
    motion judges reference to the time claimed by plaintiffs counsel as being far
    higher than is reasonable and proportionate follows directly after his
    reference to the manner in which the litigation was conducted. Clearly, the
    motion judge was referring to both sides when he alluded to the conduct of the
    litigation.

[29]

In fixing costs, the motion judge correctly identified
    the objective as an amount that is fair and reasonable for the unsuccessful
    party to pay in the particular proceedings (reasons, para. 26). The factors
    identified by the motion judge in fixing that reasonable amount provided a firm
    basis upon which to move significantly downward from the amount claimed by the
    respondent on a partial indemnity basis. We see no reason to interfere with his
    assessment. We will not grant leave to appeal costs on this issue.

[30]

Leave to appeal costs is refused.

Costs of the appeals

[31]

The respondent was successful on the main
    appeal. The appellants were successful on the cross-appeal on costs. Both
    successful parties are entitled to their costs on a partial indemnity basis.

[32]

A review of the material indicates that the
    materials and issues relevant to the main appeal were somewhat more involved
    than those relating to the cross-appeal on costs. We will make an order as to
    costs on the main appeal that takes into account the appellants entitlement to
    costs on the cross-appeal.

[33]

The respondent shall have her costs on the main
    appeal in the amount of $7,000, inclusive of taxes and disbursements. There
    shall be no order as to costs on the cross-appeal.

Doherty J.A.

C.W. Hourigan J.A.

Fairburn J.A.


WARNING

This is a case under the
Child, Youth and Family Services Act, 2017
and subject to subsections 87(8) and 87(9) of this legislation.
These subsections and
    subsection 142(3) of
the
Child,
    Youth and Services Act, 2017
, which
deals with the consequences of
    failure to comply, read as follows:

87
(8)
Prohibition re
    identifying child
 No person shall publish or make public information
    that has the effect of identifying a child who is a witness at or a participant
    in a hearing or the subject of a proceeding, or the childs parent or foster
    parent or a member of the childs family.

(9)
Prohibition re
    identifying person charged
 The court may make an order prohibiting
    the publication of information that has the effect of identifying a person
    charged with an offence under this Part.

142
(3)
Offences re publication
 A
    person who contravenes subsection 87(8) or 134(11) (publication of identifying
    information) or an order prohibiting publication made under clause 87(7)(
c
)
    or subsection 87(9), and a director, officer or employee of a corporation who
    authorizes, permits or concurs in such a contravention by the corporation, is
    guilty of an offence and on conviction is liable to a fine of not more than
    $10,000 or to imprisonment for a term of not more than three years, or to both.

COURT OF APPEAL FOR ONTARIO

CITATION: Children's Aid Society of Toronto
    v. J.G., 2020 ONCA 415

DATE: 20200625

DOCKET: C67967

Doherty, Hourigan and Benotto JJ.A.

BETWEEN

The
    Children's Aid Society of Toronto

Applicant
(Respondent on Appeal)

and

J.G.

Respondent Mother
(Appellant)

Andrew Burgess and
    Jessica Gagne, for the appellant

Ian Ross and Elizabeth McCarty, for the
    Intervener the Office of the Children's Lawyer

Simon Fisch and Karen Freed, for the
    respondent Children's Aid Society

Heard: June 12, 2020 by video conference

On appeal from the judgment of Justice Sharon Shore of the Superior
    Court of Justice, dated January 10, 2020, with reasons reported at 2020 ONSC
    1135.

Benotto
    J.A.:

[1]

Historically, it has been difficult for a biological parent to obtain the
    right to access a child placed in the extended care of a childrens aid society
    (previously called Crown Wardship). There was a legislated presumption
    against access and there was a strict test to be met. The legislation at the
    time, the
Child and Family Services Act,
R.S.O. 1990, c. C.11 (
CFSA
),
    required that an applicant establish that the relationship is beneficial and
    meaningful to the child and that the access would not impair the childs
    opportunities for adoption. This changed in 2018 when the CFSA was repealed and
    replaced with the
Child, Youth and Family Services Act
, 2017, S.O.
    2017, c. 14, Sched. 1 (
CYFSA
). The new legislation reflected a
    change in the approach to many aspects of child protection law, relating to
    children in care, including access. The former strict interpretation of a
    beneficial and meaningful relationship was expanded to incorporate a
    broadly-based best- interests analysis.

[2]

This court has referred to the significance of the change on more than
    one occasion. Yet, some lower courts continue to apply jurisprudence based on
    the old restrictive test.

[3]

Here, the trial judge applied the new approach to the determination of
    access for a mother and ordered access at the discretion of the childrens aid society.
    The appeal judge applied the old restrictive test, allowed the appeal and
    overturned the decision.

[4]

For the reasons that follow, I would allow the appeal and restore the
    trial judges order.

FACTS

[5]

The underlying facts are not disputed.

[6]

The appellant is the mother of A.G., who is two years old. The child is
    the fifth child born to the appellant. The other four children are in care. The
    facts articulated in the decisions below with respect to A.G. and the four
    siblings clearly establish that the mother is not able to care for the child.
    In fact, she did not dispute the finding that the child be in the extended care
    of the respondent, the Childrens Aid Society of Toronto (the Society). She
    only seeks continued access. The visits had been once-a-week on a fully
    supervised basis at the Society offices. The father of the child took no part
    in the proceedings.

DECISIONS BELOW

The Ontario Court

[7]

The matter came before Sherr J. of the Ontario Court as a summary
    judgment motion for protection by the Society. He conducted a mini-trial in
    accordance with r. 16(6.2) of the
Family Law Rules
, O. Reg. 114/99. As
    part of that process he requested more evidence and heard oral evidence from
    the mother. Ultimately the mother consented to an extended society care order
    and the only issue before the court was her access to the child. Both the
    Society and the mother asked the court to make the determination on the basis
    of the evidence presented.

[8]

The trial judge set out in detail the positive and the negative aspects
    of the mothers visits with the child. He also considered the pros and cons of
    the mothers continued relationship with the child. One of the benefits of an
    ongoing relationship with the child included the fact that access to the
    childs medical information and family history would be more readily available.

[9]

The Society urged the court to follow the line of cases dating back to
    the
CFSA
that narrowly interpreted the words beneficial and
    meaningful. The trial judge rejected that approach and determined, based on
    the wording of the
CYFSA
and this courts decisions interpreting it,
    that a more expansive inquiry was required.

[10]

On
    the basis of this more expansive inquiry, he concluded that the benefits of the
    mothers relationship with the child outweigh any detriments and that the
    relationship would be beneficial and meaningful for the child. He found that it
    was now, and would be in the future, in the childs best interests for the
    biological mother to have access to the child at the discretion of the Society.

The Superior Court

[11]

The
    Society appealed the order allowing the mother access to the child at its
    discretion.

[12]

The
    appeal judge concluded that the trial judge erred in assigning a new definition
    to the words beneficial and meaningful under the
CYFSA
. She reviewed
    the case law on the interpretation of the meaning of beneficial and
    meaningful and the different interpretations. She concluded that the more
    restrictive approach still applied. She also found that the trial judge erred
    by considering the potential for a future relationship because the court is
    called upon to consider whether the relationship is beneficial and
    meaningful, not whether it will become so in the future. Finally, she found
    that it was an error of law for the trial judge to refer to the future need for
    medical information, as this was entirely speculative.

ISSUES ON THIS APPEAL

[13]

There
    are three related issues on this appeal:

(i)

Has the test for access under the CYFSA changed
    the meaning of a beneficial and
meaningful
    relationship?

(ii)

Can the benefits
of a
    future relationship be considered? and

(iii)

Did the trial judge err by referring to the
    childs medical information and family history
?

BACKGROUND

[14]

I
    will set out the legislative history and the case law. I will then discuss the
    significance of the changes in the
CYFSA
with respect to the
    determination of access.

(1)

LEGISLATIVE HISTORY

[15]

Since
    2004, the statute dealing with children in need of protection was the
CFSA
.
    Access to Crown wards was governed by s. 59, which stated:

Access:
    Crown ward

(2.1) A
    court shall not make or vary an access order made under section 58 with respect
    to a Crown ward unless the court is satisfied that,

(a) the relationship between the person and the child is beneficial
    and meaningful to the child; and

(b) the ordered access
    will not impair the childs future opportunities for adoption.

[16]

The
    legislation also prevented a child from being adopted if there was an
    outstanding access order. When a child was about to be placed for adoption, the
    court was prevented from granting an access order except in extraordinary
    circumstances. Since courts had to choose between an access order or permanency
    for a child, the common law interpretation of the test for access to a Crown
    ward under the former
CFSA
was extremely, and intentionally,
    restrictive.

[17]

In
    2011, the Legislature amended the
CFSA
to allow a child to be placed
    for adoption even when there was an outstanding access order. The amendments
    established a process for a Society to administratively terminate an access
    order by serving a notice of intention to place a child for adoption on persons
    named in the access order. The amendments broadened the ability for children to
    continue to have some form of contact with people who are important to them
    through openness after adoption. However, the test for access to a Crown ward
    did not change and courts continued to apply the same strict approach.

[18]

On
    April 30, 2018, the
CFSA
was replaced with the new
CYFSA
. The
    new legislation aimed to reduce the stigma of children in care, address Indigenous
    issues and import a broad best interests analysis into the determination of
    access.

[19]

There
    were many changes. Children who were previously described as Crown wards are
    now referred to as in extended Society care.

[20]

The
    two-part test for access in s. 59 was replaced with a holistic consideration of
    the childs best interests. This is set out in ss. 105(5) and (6):

When
    court may order access to child in extended society care

(5) A court
    shall not make or vary an access order under section 104 with respect to a
    child who is in extended society care under an order made under paragraph 3 of
    subsection 101 (1) or clause 116 (1) (c)
unless the court is satisfied that
    the order or variation would be in the childs best interests
.

Additional
    considerations for best interests test

(6) The
    court shall consider,
as part of its determination
of whether an order
    or variation would be in the childs best interests under subsection (5),

(a)
    whether the relationship between the person and the child is beneficial and
    meaningful to the child; and

(b) if
    the court considers it relevant, whether the ordered access will impair the
    childs future opportunities for adoption. [Emphasis added]

[21]

Pursuant
    to s. 74(3), best interests of a child is a defined term that encompasses a
    very broad range of considerations:

Best
    interests of child

(3) Where
    a person is directed in this Part to make an order or determination in the best
    interests of a child, the person shall,

(a) consider
    the childs views and wishes, given due weight in accordance with the childs
    age and maturity, unless they cannot be ascertained;

(b) in
    the case of a First Nations, Inuk or Métis child, consider the importance, in
    recognition of the uniqueness of First Nations, Inuit and Métis cultures,
    heritages and traditions, of preserving the childs cultural identity and
    connection to community, in addition to the considerations under clauses (a)
    and (c); and

(c) consider
    any other circumstance of the case that the person considers relevant,
    including,

(i)
the childs physical, mental and emotional needs, and the
    appropriate care or treatment to meet those needs,

(ii)
the childs physical, mental and emotional level of development,

(iii)
the childs race, ancestry, place
    of origin, colour, ethnic origin, citizenship, family diversity, disability,
    creed, sex, sexual orientation, gender identity and gender expression,

(iv)
the childs cultural and linguistic
    heritage,

(v)
the importance for the childs
    development of a positive relationship with a parent and a secure place as a
    member of a family,

(vi)
the childs relationships and
    emotional ties to a parent, sibling, relative, other member of the childs
    extended family or member of the childs community,

(vii)
the importance of continuity in the
    childs care and the possible effect on the child of disruption of that
    continuity,

(viii)
the merits of a plan for the
    childs care proposed by a society, including a proposal that the child be
    placed for adoption or adopted, compared with the merits of the child remaining
    with or returning to a parent,

(ix)
the effects on the child of delay
    in the disposition of the case,

(x)
the risk that the child may suffer
    harm through being removed from, kept away from, returned to or allowed to
    remain in the care of a parent, and

(xi)
the degree of risk, if any, that
    justified the finding that the child is in need of protection.

(2)

JUDICIAL INTERPRETATIONS

[22]

After
    the coming-into-force of the
CYFSA
, two lines of cases developed. Both
    professed to follow the new law. One line of cases followed the old test. The
    other line of cases took an expansive approach.

[23]

I
    turn to the case law under the
CFSA
and then refer to the two
    conflicting approaches that followed the implementation of the
CYFSA
.

Case law under the
CFSA

[24]

The
    most often cited case propounding the restrictive approach is
Childrens
    Aid Society of the Niagara Region v. M.J.,
2004 CanLII 2667 (Sup. Ct.) at
    paras. 45 and 46. In it, Quinn J. looked to the dictionary definition of the
    words beneficial and meaningful under the CFSA:

What is a beneficial and meaningful
    relationship in s. 59(2)(a)? Using standard dictionary sources, a beneficial
    relationship is one that is advantageous. A meaningful relationship is one
    that is significant. Consequently, even if there are some positive aspects to
    the relationship between parent and child, that is not enough  it must be
    significantly advantageous to the child.

He also addressed the pertinence of the future
    relationship:

I read s. 59(2)(a) as
    speaking of an
existing
relationship between the person seeking access and the child, and not a
future
relationship. This is important,
    for it precludes the court from considering whether a parent might cure his or
    her parental shortcomings so as to create, in time, a relationship that is
    beneficial and meaningful to the child. This accords with common sense, for the
    child is not expected to wait and suffer while his or her mother or father
    learns how to be a responsible parent.

[25]

As
    time went by, judges routinely used the phrase significantly advantageous
    when interpreting the legislated beneficial and meaningful test. This was the
    genesis of the first line of cases.

Case law under the
CYFSA

[26]

After
    the new legislation came into force, the test set out by Quinn J. continued to
    be applied in some cases, e.g.,
Childrens Aid Society of Niagara

Region v. B.P. and B.W
.,
    2018 ONSC 4371 and
Childrens Aid Society of the
    Districts of Sudbury and

Manitoulin v. C.H
., 2018 ONCJ 453.

[27]

In
Niagara
, Pazaratz J. adopted the significantly advantageous term and
    also concluded that only the existing relationship be considered, not the
    future one. He also found that there remains a presumption against access
    under the
CYFSA
.

[28]

In
Manitoulin
, Kukurin J. acknowledged that the
CYFSA
altered
    the test for access to a child in extended care but, for the terms beneficial
    and meaningful and impair adoption, he concluded at para 13:

it might be
    argued that these have come down a notch in terms of importance, that they
    represent just two more factors among several that must be taken into account
    under the best interests analysis under the
CYFSA
, that they are no
    longer statutorily included as prerequisites for the access applicant; they are
    simply judicial considerations. I do not believe that this is really the end
    result of the legislative changes.

[29]

Other
    courts have taken a different approach, reflecting a flexible interpretation of
    the test. The approach is summarized by Sager J. in
Jewish Family and Child
    Service of Greater Toronto v. K.B.
, 2018 ONCJ 650, at paras. 141-43, affd
Jewish Family and Child Service of Greater Toronto v.
    E.K.B.
, 2019

ONSC 6214
:

The introduction of the best interests test in
    the
CYFSA
brings a
    less rigid and more flexible approach to deciding whether to order access to a
    child placed in the extended care of the society, as a court is now permitted
    to give consideration to any factor it considers relevant, one can assume, on
    the well accepted principle in cases involving children that one size does not
    fit all.

As the best interest analysis involves a
    consideration of what could be numerous factors, there cannot be a hard and
    fast rule as to how much weight a court
must
give any one factor including
    whether the relationship between the party seeking access and the child is
    beneficial and meaningful to the child. That must be determined on a case by
    case basis, by weighing all the relevant factors against the particular needs
    of the child before the court. This is a significant departure from the rigid
    test in the predecessor legislation.

For some children
    who are the subject of an order of extended society care, a relationship with a
    parent may be in their best interests for a myriad of reasons. Some of those
    reasons would not have been sufficient to demonstrate a beneficial and
    meaningful relationship under the predecessor legislation to the
CYFSA
. The court ought not be confined
    to a one-dimensional definition of beneficial and meaningful under the
CYFSA
, as to do so would be to
    potentially ignore the variety of needs children have as a result of being
    removed from their parents' care, both at the date of the order and in the
    future. For this reason, the test was altered in a significant way to one of
    best interests. [Emphasis in original.]

[30]

This
    test has been endorsed and followed in numerous cases:
Catholic Childrens
    Aid Society of Toronto v. R.H.
, 2018 ONCJ 854;
Childrens Aid Society
    of the Regional Municipality of Waterloo v. J.D
., 2018 ONCJ 963;
L.M.
    v. Childrens Aid Society of the Region of Peel
, 2019 ONSC 1566;
Family and Childrens Services of Guelph & Wellington
    County v. A.I.S
.
,

2018 ONCJ

410
;
Catholic Childrens Aid Society
    of Toronto v. A.P.
, 2019 ONCJ 631
;

Childrens Aid Society of

Toronto v. R.S.
, 2019 ONCJ 866
;
Family & Childrens Services
    v. B.S.
, 2019 ONSC 6577
;

Childrens Aid Society of Halton Region v. S.O.
, 2019 ONCJ 121
;
Childrens Aid Society of Peel

v. C.D.
, 2018 ONCJ 917
;

Jewish Family and Child Service of Greater Toronto v.
    K.B.
,

2018 ONCJ

650, at para. 144

;
Highland Shores Childrens Aid
    Society v. J.G. and R.D.F.
,

2019 ONSC 5476, at paras. 121
-
23
;
Childrens

Aid Society of Toronto v. Y.M.
, 2019 ONCJ 489, at paras. 305
-
308;

Catholic

Childrens Aid Society of Toronto
    v.

R.H.
, 2018 ONCJ 854, at paras. 99
-
101
;

Family and Children's Services of Guelph & Wellington
    County v. T.S
.
, 2018

ONCJ 411, at para. 54
;
and
Childrens Aid Society of the
    Regional Municipality of Waterloo v. J.D.
, 2018 ONCJ 963
,

at para. 74
.

DISCUSSION

[31]

The
    words of an Act are to be read in their entire context and in their grammatical
    and ordinary sense harmoniously with the scheme of the Act, the object of the
    Act, and the intention of Parliament:
Bell ExpressVu Limited Partnership v.
    Rex
, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26, citing Elmer A.
    Driedger,
Construction of Statutes
,
2nd ed. (Toronto: Butterworths, 1983), at p.  87.

[32]

I
    therefore begin with a broad consideration of the scheme of the
CYFSA
and its object.

[33]

A
    requirement of the
CFSA
was that the Minister publicly review the Act,
    or specified provisions of it, every five years. These reviews were to be conducted
    by the Ministry of Children and Youth Services to enable the government to
    better understand how its laws, programs and policies are experienced on the
    ground. The information gathered as part of these reviews provided an
    opportunity for learning and change, and also supported the Ministry and its
    partners to provide high-quality services for children, youth and families in
    Ontario. In September 2014, the third legislative review of the
CFSA
was
    announced.

[34]

The
    2015 review
[1]
stressed the need for change for children in protection proceedings. It
    recommended a change in the language to reflect the realities of families and
    also recommended a change to the test for access to Crown wards. The
CYFSA
achieved both these objectives.

[35]

As
    this court said in
Kawartha
-
Haliburton Childrens Aid Society
    v. M.W.
,

2019 ONCA 316, 432 D.L.R. (4th)
    497,
and in
L.M. v. Peel Childrens Aid
    Society
,

2019 ONCA 841
, 149 O.R. (3d) 18, the new Act reflected a significant
    change for children in care. The
age for protection
    was raised from 16 to 18. The archaic and stigmatizing term Crown ward was
    replaced with extended society care. Other
key changes included:

·

Making services more culturally appropriate for all children and
    youth in the child welfare system, including First Nations, Inuit, Métis, to
    ensure that they receive the best possible supports;

·

Focusing on early intervention, to assist in preventing children,
    youth and families from reaching crisis situations in the home; and

·

Improving review of service providers to ensure that children and
    youth receive consistent, high-quality services across Ontario.

[36]

The
    paramount purpose of the Act remained as it had been: to promote the best
    interests, protection and well-being of children (s. 1(1)). Other purposes in
    s. 1(2) emphasize the best interests of children:

(2) The
    additional purposes of this Act, so long as they are consistent with the best interests,
    protection and well-being of children, are to recognize the following:

1. While
    parents may need help in caring for their children, that help should give
    support to the autonomy and integrity of the family unit and, wherever
    possible, be provided on the basis of mutual consent.

2. The least
    disruptive course of action that is available and is appropriate in a
    particular case to help a child, including the provision of prevention
    services, early intervention services and community support services, should be
    considered.

3. Services
    to children and young persons should be provided in a manner that,

i.
    respects a childs or young persons need for continuity of care and for stable
    relationships within a family and cultural environment,

ii. takes
    into account physical, emotional, spiritual, mental and developmental needs and
    differences among children and young persons,

iii.
    takes into account a childs or young persons race, ancestry, place of origin,
    colour, ethnic origin, citizenship, family diversity, disability, creed, sex,
    sexual orientation, gender identity and gender expression,

iv. takes
    into account a childs or young persons cultural and linguistic needs,

v.
    provides early assessment, planning and decision-making to achieve permanent
    plans for children and young persons in accordance with their best interests,
    and

vi.
    includes the participation of a child or young person, the childs or young
    persons parents and relatives and the members of the childs or young persons

extended family and community, where appropriate.

4. Services
    to children and young persons and their families should be provided in a manner
    that respects regional differences, wherever possible.

5. Services
    to children and young persons and their families should be provided in a manner
    that builds on the strengths of the families, wherever possible.

6. First
    Nations, Inuit and Métis peoples should be entitled to provide, wherever
    possible, their own child and family services, and all services to First
    Nations, Inuit and Métis children and young persons and their families should
    be provided in a manner that recognizes their cultures, heritages, traditions,
    connection to their communities, and the concept of the extended family.

7. Appropriate sharing of
    information, including personal information, in order to plan for and provide
    services is essential for creating successful outcomes for children and
    families.

[37]

Most
    importantly for this case, the new Act changed the criteria for access to
    children in extended care by removing the presumption against access and making
    the childs best interests predominant in determining access. As stated by
    this court in
Kawartha
and repeated in
Peel
, the change was
    not just semantics but represented a significant shift in the approach to access
    for children in extended care. Some of the changes to the test for access
    include:

·

The burden is no longer on the person requesting
    access to demonstrate that their relationship to the child is beneficial and
    meaningful and in no way will impair the childs future adoption opportunities.

·

When the court undertakes a best interests
    analysis, it assesses whether the relationship is beneficial and meaningful to
    the child, and considers the potential impairment to future adoption
    opportunities, but only as part of this assessment and only where relevant;

·

There is no longer a presumption against
    access and it is no longer the case that a parent who puts forward no evidence
    will not gain access. and

·

While any evidence of possible impairment to
    adoption opportunities would have thwarted previous requests for access, under
    the new Act, access is to be ordered for a child with otherwise excellent
    adoptive prospects if it is in her overall best interests.

The changes referred to in
Peel
include:

·

Highlighting in the first statement of the
    Preamble that children are individuals with rights to be respected and voices
    to be heard and ensuring that childrens wishes are considered and given due
    respect when any decision is made that affects their lives;

·

Confirming that the aim of the
CYFSA
is
    to be consistent with, and build upon, the principles expressed in the United
    Nations Convention on the Rights of the Child;

·

Expanding the protections and unique considerations
    for all First Nations, Inuit and Métis children;

·

Expanding the age of protection to include 16
    and 17 year olds; and

·

Specifically referencing siblings in the
    non-exhaustive list of persons who may seek access. This inclusion was made to
    specifically promote the consideration of [sibling] access application[s], and
    as part of efforts to promote the rights and voice of children throughout the
    Act.

[38]

These
    changes and this courts statements clearly inform the analysis of the three
    issues articulated in this case. I turn to those issues now.

Issue 1: Has the test for access under the
CYFSA
changed the meaning of a beneficial and meaningful relationship?

[39]

The
    respondent points out that the
CYFSA
did not change the words a
    relationship between the person and the child is beneficial and meaningful to
    the child. The respondents contend that, with the words still intact, the
    interpretation of the phrase stands, and the pre-
CYFSA
interpretation
    still applies. To support this proposition, the respondent relies on this
    courts decision in
Huron-Perth Childrens Aid Society v. J.L.
,
2019 ONCA 809. The respondent says
    that, in
Huron-Perth
,

this
    court endorsed the pre-
CYFSA
definition of beneficial and meaningful.

[40]

I
    do not agree. This courts decision in
Huron-Perth
offers no support
    for the respondents position. The issues in that case had nothing to do with
    the test for access.

[41]

In
Huron-Perth
,

t
he first appeal judge considered fresh evidence and
allowed
the parents appeal on the issue of access,
granting
access between
    the parents and children. The parents then appealed to this court on the basis
    that the first appeal judge had not gone far enough. They submitted that, on
    the basis of fresh evidence, the trial judge should not
only
have
    awarded access but instead should have reversed the Crown wardship/no access
    order. This court saw no basis to interfere with the first appeal judges
    decision to grant access to the parents. This courts decision does not endorse
    the pre-CYFSA approach to access for it had nothing to do with the access test.

[42]

In
    contrast, this courts decision in
Kawartha
directly addressed the new access test
.
Kawartha
overturned the
    Divisional Court decision below in part
because
applying the old
    restrictive access test was identified as a legal error.

[43]

The
    respondent also argues that the 2004 decision in
Niagara
reflects the
    proper approach to the determination of the words beneficial and meaningful.
    I disagree. It does not advance the scope or purpose of the legislation to
    apply dictionary definitions of a word or a phrase untethered from the context
    of the Act.

[44]

The respondent further argues that there is no reason to depart from
    the
pre-
CYFSA
judicial interpretation of beneficial and
    meaningful relationship as meaning a significantly advantageous
    relationship. Again, I disagree. The judicial injection of the words
    significantly advantageous into the analysis may have applied under the old Act
    but it falls far short of the expansive best interests considerations under the
    new
CYFSA
.

[45]

The
CYFSA
is remedial legislation enacted for the protection of societys
    most vulnerable children. It must be liberally construed to the benefit of the
    child.

[46]

The new access test is no longer a beneficial and meaningful test. It
    is
now a best interests test with a statutory requirement to consider
    whether the relationship is beneficial and meaningful for the child
as one
    aspect
of that analysis. When a court considers a childs best interests
    it should consider all relevant factors, including  as I discuss below
    whether past, present or future. The new access test now permits the court to
    conduct a more holistic and comprehensive analysis of what is best for a child.

[47]

By
    adopting a best interests test to determine access, the legislature changed the
    previous highly restrictive test that had tended towards termination of access
    between children and those important to them. Access can be now be ordered for
    a child in extended care if it truly is in the overall best interests of the
    child. The overall best interests involve a consideration of the 15 articulated
    factors
plus
any other circumstance of the case that the person
    [deciding the case] considers relevant: s. 74(3)(c). Under s.105(6), whether
    the relationship is beneficial and meaningful to the child and
only if
    the court considers it relevant
, whether the ordered access will impair
    the childs future opportunities for adoption remain relevant, but only as
    viewed through a global best interests lens.

Issue 2: Can the benefits of a future
    relationship be considered?

[48]

The
    appeal judge concluded that the trial judge erred in law when he said, at para.
    81, that a childs best interests include
all
relevant factors, whether they be past, present or future considerations
    (emphasis in original). The appeal judge concluded that While this would be
    true for the factors set out in s. 74(3), it does not hold true when
    considering whether there is a beneficial or meaningful relationship between
    the child and the parent. In coming to this conclusion, she relied on
Manitoulin
which held that the relationship is beneficial and meaningful.

[49]

I
    disagree.

[50]

The
    beneficial and meaningful test is not a separate pre-condition as it was
    before. Instead, it is a consideration within the context of the childs best
    interests.

[51]

The
    childs best interests clearly are not static. This is confirmed by the wording
    of s. 74(3) which requires the court to consider: (i)
any
other circumstance of the case; (ii) the childs
development
of a positive relationship; (iii)
continuity
in
    the childs care and the
possible
effect on the
    child of disruption of that continuity; (iv) the
risk
that the child
may

suffer harm through being removed
    from, kept away from, returned to or allowed to remain in the care of a parent
    [Emphasis added].

[52]

The
    underlined words all demand considerations that continue through time. There is
    simply nothing in the plain wording of the current Act to suggest that access
    should be decided without reference to the future.

[53]

The
    trial judge did not err by taking future considerations into account.

Issue 3:
Did the trial
    judge err by referring to the childs medical information and family history?

[54]

The
    trial judge considered as one of the benefits of access that it could mean that
    [the childs] medical information and family history will be more readily
    available. The appeal judge concluded that this was speculation: There was no
    evidence presented at trial in this regard and therefore this equates to an
    error of law.

[55]

It
    was not an error of law to refer to medical history and information for several
    reasons. First, I have set out above that the best interests analysis properly includes
    consideration of the future. Second, this factor was only one of ten listed by
    the trial judge in his consideration of the benefits of access. Third, it was
    not speculative: the child had significant medical issues as a result of
    premature birth. There was no error in the trial judges common-sense
    conclusion that a child with significant medical issues could benefit from some
    form of continuing contact with his biological mother.

Presumption and onus

[56]

Before
    concluding, I wish to address the respondents submissions with respect to
    presumption and onus.

[57]

The
    respondent submits that there remains a presumption against access and the onus
    rests with the person seeking access.

[58]

There
    is no longer a presumption against access. This was confirmed in
Kawartha
, at para. 31,

and
Peel
, at para. 70
.

[59]

The
    issue of onus is more nuanced.

[60]

I
    do not find it helpful to import the concept of onus when the court is required
    to consider and balance the various factors that affect the life of a child in
    protection. The court is not called upon to determine past events and to make
    findings. Instead the court must consider and weigh a number of factors, past,
    present and future.

[61]

There
    is an analogy here to what has been said of the courts approach when
    considering whether a young person should be tried in youth or adult court.
    Like the best interests analysis, the relevant legislation for youthful
    offenders requires the court to weigh and balance enumerated factors.

[62]

In
R. v. A.O.
,
2007 ONCA
    144, 84 O.R. (3d) 561, this court considered the question of onus in connection
    with the then legislation regarding a transfer of a case from youth to adult
    court. The court said, at para. 33:

[The section of the Act] refers to an onus of satisfying
    the youth justice court of the matters necessary for the imposition of an adult
    sentence. This wording tracks the language considered by the Supreme Court of
    Canada in
R. v. M. (S.H.),

1989 CanLII 31 (SCC)
, [1989] 2 S.C.R. 446, [1989] S.C.J. No. 93, 50 C.C.C. (3d) 503, at pp.
    463-64 S.C.R., pp. 546-48 C.C.C. when it assessed the nature of the onus on a
    party seeking a transfer to adult court  Justice McLachlin, as she then was,
    distinguished an onus to satisfy from the criminal onus of proof beyond a
    reasonable doubt. Speaking for the majority, she said:

Parliament set out in detail the factors which
    must be weighed and balanced, and stipulated that if after considering them the
    court was satisfied that it was in the interests of society and the needs of
    the young person that he or she should be transferred, the order should be
    made.

Nor do I find it
    helpful to cast the issue in terms of civil or criminal standard of proof.
    Those concepts are typically concerned with establishing whether something took
    place. It makes sense to speak of negligence being established on a balance of
    probabilities, or to talk of the commission of a crime being proved beyond a
    reasonable doubt. But it is less helpful to ask oneself whether a young person
    should be tried in ordinary court on a balance of probabilities. One is not
    talking about something which is probable or improbable when one enters into
    the exercise of balancing the factors and considerations set out in [the Act].
    The question rather is whether one is satisfied, after weighing and balancing
    all the relevant considerations, that the case should be transferred to
    ordinary court.

[63]

Similarly,
    the court here was not being asked to make findings of fact about past events.
    A childs best interests in connection with future access involve a delicate
    weighing and balancing of multiple factors. It is not a fact-finding mission
    and the exercise is not assisted by determining what the onus is or where it
    lies.

CONCLUSION

[64]

The
CYFSA
requires a new approach to determining access. I note too that
    access can come in many forms that depart from in-person visits. The exchange
    of gifts, emails, video chats or phone calls are all forms of access. The form
    and frequency of access should be tailored to the childs specific needs and age-appropriate
    wishes.

[65]

I
    adopt the words of Sager J. relied on by the trial judge, as set out in
Jewish
    Family and Child Service
:

The introduction of the best interests test in
    the
CYFSA
brings a less rigid and more flexible approach to deciding
    whether to order access to a child placed in the extended care of the society,
    as a court is now permitted to give consideration to any factor it considers
    relevant, one can assume, on the well accepted principle in cases involving
    children that one size does not fit all.

The trial judge here endorsed this approach and added:

When a court
    considers a childs best interests it should consider
all
relevant
    factors, whether they be past, present or future considerations. That is what
    courts do in making custody and access decisions

there is a predictive element in all of these decisions. There is
    no need for a court to confine itself to past or present circumstances in
    conducting its analysis. The new access test now permits the court to conduct a
    more holistic and comprehensive analysis of what is best for a child. The more
    expansive analysis will permit courts to make the best possible decisions for
    children. [Emphasis in original.]

[66]

The
    trial judge applied the correct approach.

[67]

I
    would allow the appeal and restore the trial judges determination as to
    access.

[68]

No
    party requested costs, so I would not order costs.

Released: June 25, 2020

DD

M.L.
    Benotto J.A.

I
    agree Doherty J.A.

I
    agree C.W. Hourigan J.A.

[1]
Ontario, Ministry of Children and Youth Services,
Report on the
    2015 Review of the Child and Family Services Act
(April 1, 2015).


COURT OF APPEAL FOR ONTARIO

CITATION: Country Wide Homes Upper Thornhill
    Estates Inc. v. Ge, 2020 ONCA 400

DATE: 20200622

DOCKET: C67712

Doherty, Hourigan and Fairburn
    JJ.A.

BETWEEN

Country Wide Homes Upper Thornhill Estates Inc.

Plaintiff

(Respondent)

and

Wei
    Ge

Defendant

(Appellant)

Derrick M. Fulton, for the appellant

Emilio Bisceglia and Sonja Turajlich,
    for the respondent

Heard: In Writing

On
    appeal from the judgment of Justice Janet Leiper of the Superior Court of Justice,
    dated October 24, 2019.

REASONS FOR DECISION

Overview

[1]

On October 4, 2016, the parties signed an
    agreement of purchase and sale (APS) that forms the subject of this appeal.
    The respondent company is the vendor, developing a high-end neighbourhood
    called The Enclave. The appellant agreed to buy Lot 66. In accordance with
    the terms of the APS, the respondent built the appellants home. About a week
    before the date scheduled for closing, just over two years after the APS had
    been signed, the appellant claimed that the agreement was null and void.

[2]

The respondent sued the appellant for specific
    performance and brought a motion for summary judgment for breach of the APS.
    The motion judge granted the motion, concluding that the APS is valid and
    enforceable and that the respondent is entitled to specific performance of that
    contract. She gave the appellant 120 days to complete the transaction in
    accordance with the terms of the APS.

[3]

This is an appeal from that decision.

The Alleged Errors in Granting Summary
    Judgment

[4]

We start with the standard of review. Absent an
    extricable error of law, deference is owed to findings on a summary judgment
    motion. This includes deference to factual determinations. Decisions as to whether
    there are genuine issues for trial are questions of mixed fact and law, and
    require palpable and overriding error before this court will interfere:
Hryniak
    v. Mauldin
, 2014 SCC 7
,
    [2014] 1 S.C.R. 87, at paras. 81-84.

[5]

We see no such errors.

[6]

The appellants primary issue on appeal rests
    with the motion judges conclusion that the materials filed by the appellant
    did not provide any foundation for setting aside the agreement. That
    conclusion is summarized in the following passage from the motion judges
    reasons:

There is no issue with the agreement, its
    contents, or the steps taken after it was signed. The main complaints appear to
    be with the fact that it is a lengthy document, signed by a non-English
    speaker, and without solicitor review. Yet, the [appellant] does not say in his
    affidavit that he did not understand the contents: his words are more in the
    nature of argument than evidence.

I agree with the [respondent]: there is no
    legal foundation for a defence that the agreement is void. The complaints are
    vague. No caselaw has been provided to establish that any of the complaints in
    the affidavit would give rise to a setting aside of the agreement. The
    purchaser has not established any misrepresentation.

[7]

The appellant argues that the motion judge was
    wrong in her conclusion that there was no evidence supporting the suggestion
    that the agreement was void. We disagree.

[8]

The appellant filed three affidavits on the
    motion. Two of them were sworn by counsel, largely focusing on a dispute over
    whether the motion should go ahead or be adjourned to a later date. The final
    affidavit was sworn by the appellant. The motion judge characterized the
    appellants affidavit in the following manner:

[The purchasers] affidavit does not allege
    any details of any misrepresentation. It complains of the fact that there was a
    warning in the agreement concerning water and the vapour barriers. It also
    complains that he did not have an option for solicitor review. His pleadings,
    which were adopted as part of his evidence in the affidavit alleged
    misrepresentation, but again provided no details as to what the
    misrepresentation was.

[9]

A review of the appellants affidavit supports
    the motion judges characterization of its contents.

[10]

The appellant points to the fact that the APS contained
    a clause, required by the Ministry of the Environment, that warned about the
    ground water in the subdivision, and remediation efforts of lands within the
    development. The appellant argues that the import of that clause was not
    explained to him. As a Mandarin speaking purchaser, he says that he did not
    understand the clause. He also argues that he was pressured into the purchase, having
    been told that an offer would only be considered if there were no conditions
    attached. Accordingly, the appellant suggests that he was deprived of the
    ability to have a solicitor review the agreement.

[11]

The motion judge correctly concluded that these
    arguments did not support the suggestion that there had been misrepresentations.

[12]

In any event, the appellant had a Mandarin-English
    speaking real estate agent with whom he was able to fully communicate. He is
    not a novice to the real estate market. He initialed every page of the APS and
    its schedules, including the pages containing the Ministry of Environment warning.
    He also specifically initialled the crossing out of the condition involving
    solicitor review. Finally, each page of the APS contained the following block
    letter phrase: oral representations do not form part nor can they amend this
    agreement. These factors undermine the appellants position that he did not
    know and was misled about the contents of the APS.

[13]

The appellant also argues that the motion judge
    erred by failing to consider the impact that expert evidence may have had on
    calculating the decrease in property value arising from the Ministry of
    Environment warning. Yet, the appellant did not file any expert evidence on the
    motion, as would have been his right. He cannot now complain that the motion
    judge did not take into account something that may or may not materialize in
    the future. He was required to put his best foot forward on the motion.

[14]

The appellant also maintains that the
    respondents affidavit evidence was insufficient because the affiant, the Vice
    President of the respondent company, was not in the room when the APS was
    signed. There is no merit to this suggestion. The respondents affiant
    familiarized himself with all documents and had discussions with the real
    estate agent who was present at the time of signing. The affiant also states
    his source of knowledge wherever it is based upon information from a third
    party.

[15]

The appellant also claims that there was a
    breach of natural justice because he was denied an adjournment. The history of
    that denial is informative as to why this ground of appeal also fails.

[16]

Less than a week before it was scheduled to be
    heard, the appellant asked that the motion date be vacated. That request was
    denied. Then on the eve of the motion, the appellant filed materials in support
    of an application to adjourn. That application was denied.

[17]

The motion went ahead, but was adjourned for
    completion more than two months later. During that time, the appellant
    attempted to have the Divisional Court review the motion judges decision
    denying the adjournment request. The Divisional Court dismissed that
    application. On the return date for the motion, over the objection of the
    respondent, the appellant was permitted to file new affidavit evidence and a
    factum, all of which was taken into account by the motion judge.

[18]

In these circumstances, we are satisfied that
    the appellant was afforded natural justice.

[19]

The appellant also contends that, because there
    are a number of purchasers who refused to close their properties in the same
    subdivision, that the summary judgment in this case will risk inconsistent
    verdicts in the future. We do not agree. The other transactions will turn on
    their own details.

The Alleged Error Relating to Remedy

[20]

Finally, the appellant claims that the motion
    judge erred in ordering specific performance of the APS. He says that: (a)
    there was insufficient evidence justifying specific performance; and (b) the
    motion judge misapprehended the evidence on this point. Again, we see no error
    in the motion judges reasons.

[21]

The motion judge correctly stated the law
    respecting when the court should consider ordering specific performance and the
    fact that this remedy is available to vendors:
Matthew Brady Self Storage Corporation
    v. InStorage Limited Partnership
, 2014 ONCA 858, 125 O.R. (3d) 121, at
    paras. 33-34, leave to appeal refused, [2015] S.C.C.A. No. 50. As set out in
Matthew
    Brady
, at para. 40, looking at the contract broadly, and the transaction
    as a whole, the key factors are:

(i) whether on the facts as a whole, damages
    will afford the vendor an adequate and complete remedy or whether a money award
    will be sufficient to purchase substitute performance; (ii) whether the vendor
    has established some fair, real and substantial justification for the granting
    of specific performance; and, (iii) whether the equities as between the parties
    favour the granting of specific performance.

[22]

The motion judge took into account all of the
    facts, including that there is now a flood of inventory in the housing
    development, making it difficult to mitigate damages or quantify a fair amount
    for the failure to close. Indeed, as of the date of the motion, no houses in
    The Enclave had been sold for about a year.

[23]

Moreover, the motion judge concluded that there
    was no evidence that the property was a carbon copy of other properties without
    any unique characteristics and, in fact, there was evidence of a variety of
    changes and customizations. As noted by the motion judge, in accordance with
    the APS, the respondent customized the home at the appellants request as it
    was being built. While the appellant refers to these as cosmetic changes, the
    motion just judge came to a factual conclusion to the contrary. We defer to
    that finding of fact. As she pointed out, there were no fewer than five
    customizations, including the expansion of a bedroom and use of finishes
    selected by the appellant. As the motion judge said: the bump out of the
    bedroom, and particular finishes on a $3 million property, although not
    necessarily highly unusual, reflected a set of qualities decided upon by the
    purchaser.

[24]

We note that in responding to the alleged error
    in the motion judges reasons for specific performance, the respondent points
    to her having relied upon
Landmark of Thornhill Limited v. Jacobson
,
[1995] 25 O.R. (3d) 628, in support of the proposition that the defaulting
    party bears the onus of showing a lack of uniqueness. The appellant has not
    suggested that the motion judge erred in that statement of law. As the matter
    was not argued before us, we decline to comment, but simply emphasize the
    holding in
Semelhago v. Paramadevan
,
[1996] 2 S.C.R. 415, decided
    a year after
Jacobson,
where the court found that specific performance should
     not be granted as a matter of course
absent evidence that the property is
    unique to the extent that its substitute would not be readily available

    [Emphasis added]. See also:
Matthew Brady
,
at para. 31.

[25]

Regardless,
the
    motion judges reasons do not turn on her view of the onus. Rather, they turn
    on her findings of fact, which include the determination that, at this stage,
    the $3 million home is unique and that damages would not be an adequate or
    complete remedy or substitute for specific performance.

[26]

We see no error in that conclusion.

Application to Admit Fresh Evidence

[27]

On the eve of the appeal, the appellant asked
    for an adjournment because he said that he had critical evidence necessary to
    a just determination of the appeal. The appellant was granted the opportunity
    to file an application to admit fresh evidence. That application has now been
    received and considered.

[28]

The appellant filed an affidavit suggesting that
    Lot 66, along with all of the houses subject to similar litigation, has been
    listed for sale. The appellant argues that the listing of Lot 66 for sale is
    inconsistent with the respondents position on specific performance as it
    demonstrates the respondents belief that damages were capable of being
    assessed.

[29]

The appellant asks that the fresh evidence be
    admitted and the appeal be adjourned so that he can develop that evidence
    through disclosures and examinations, in furtherance of its interest and that
    of the litigation as a whole inclusive of this appeal.  The appellant argues
    that, through the development of the evidence, it will become clear that
    specific performance in not an available remedy and the integrity of the
    respondent will be adversely reflected upon, something that may inform other
    aspects of the litigation.

[30]

There is no need to hear from the respondent on
    this point. There is clear evidence of an email exchange between counsel,
    strongly suggesting that the listing of Lot 66 involved an administrative
    error, one that was immediately remedied once it was brought to the
    respondents attention. In other words, Lot 66 is not longer on the market. In
    any event, even if the listing of Lot 66 was not through administrative error,
    the brief listing of the property does not constitute evidence that is
    sufficiently cogent to have impacted the original decision granting specific
    performance or any other aspect of the decision.

[31]

The fresh evidence application is dismissed.

Conclusion

[32]

The appeal is dismissed.

[33]

The appellant obtained a stay of the specific
    performance order pending appeal. Costs of that motion were reserved to the
    panel hearing the appeal. We would not impose costs on the fresh evidence
    motion as the respondent was not required to respond. Taking the motion to stay
    and the appeal into account, the appellant will pay costs in the amount of $10,000
    to the respondent, inclusive of taxes and disbursements.

Doherty J.A.

C.W. Hourigan J.A.

Fairburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Couper v. Adair Barristers LLP,
    2020 ONCA 372

DATE: 20200611

DOCKET: C67453

Lauwers, Huscroft and Thorburn
    JJ.A.

BETWEEN

Mark
    Couper

Applicant (Appellant)

and

Adair Barristers LLP

Respondent (Respondent)

Mark Couper, acting in person

John J. Adair, for the respondent

Heard: In writing

On
    appeal from the order of Justice Markus Koehnen of the Superior Court of
    Justice, dated August 29, 2019, with reasons reported at 2019 ONSC 5016.

REASONS FOR DECISION

[1]

This is an appeal from the order of the motion judge
    dismissing the appellants motion opposing confirmation of the Assessment
    Officers report.

[2]

The appellant raises three issues on appeal. First, he
    says that the Assessment Officer did not have jurisdiction because the retainer
    was a contingency fee agreement; second, that the retainer did not comply with
    the requirements of the
Solicitors Act
, R.S.O. 1990, c. S.15
; and third, that
    the motion judge misapprehended and ignored evidence and that the assessment
    should not have occurred until his solicitors negligence action against the
    respondent was determined.

[3]

We dismiss the appeal for these reasons.

[4]

First, although authority to conduct the assessment of
    the contingency fee agreement was not formally delegated to the Assessment Officer
    as required under s. 28.1(11) of the
Solicitors
    Act
, the motion judge conducted his own analysis as though the matter had
    first come before him. He found that the retainer agreement included a contingency
    fee and that the contingent nature of the retainer agreement was fair and
    reasonable and should be enforced. In light of this finding, the motion judge
    noted that he would have delegated the question of quantum, and the detailed
    assessments of the accounts that entailed, to an assessment officer, who could
    carry it out far more effectively. Given that this had already occurred, we
    agree that there was no reason that the exercise had to be repeated.

[5]

As
Brown J.A.
    noted in
Evans Sweeny Bordin LLP v. Zawadzki
,
r. 54.09(5) of
    the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194

permits the
    motion judge to confirm the [assessors] report in whole or in part or make
    such other order as is just: 2015 ONCA 756, at para. 24. In our view, the
    procedure adopted by the motion judge was fair and appropriate in all of the
    circumstances, and it was not necessary to remit assessment of the accounts for
    reconsideration by another assessment officer when assessment already occurred.

[6]

We note that the respondent argued that the appellant
    was estopped from contesting the jurisdiction of the Assessment Officer, based
    on the appellant having clearly and unequivocally stated that he was not
    disputing the retainer and undertaking not to raise the issue of the Assessment
    Officers jurisdiction as a ground of appeal. Given our conclusion in para. 5 it
    is not necessary to address this argument, and we are not to be taken as
    endorsing the motion judges analysis in this regard.

[7]

Second, it is too late in the day for the argument
    that the retainer did not comply with some of the requirements of s. 28.1 of
    the
Solicitors

Act
. The appellant did not challenge the validity of the retainer
    when he could have done so and cannot now raise this argument on appeal.

[8]

Third, we see no misapprehension of or failure to
    consider evidence. As for the appellants negligence action, the Assessment Officer
    considered and rejected the appellants submission concerning the competence of
    the representation provided by the respondent, finding that the appellants
    position smack[ed] of recently invented objections. The Assessment Officer
    found that the results achieved, and the degree of skill and competence
    demonstrated by the respondent justified the assessed legal costs. There is no
    basis to interfere with this finding on appeal. The assessment was not required
    to be delayed pending the outcome of the appellants negligence action.

[9]

The appeal is dismissed. The respondent is entitled to
    costs, which we fix in the amount of $5,000, inclusive of taxes and
    disbursements.

P. Lauwers J.A.

Grant Huscroft J.A.

J.A. Thorburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Couper v. Rueter Scargall Bennett
    LLP, 2020 ONCA 352

DATE: 20200605

DOCKET: C67613

Gillese, Tulloch and Jamal JJ.A.

BETWEEN

Mark Couper

Applicant (Appellant)

and

Rueter Scargall Bennett LLP

Respondent (Respondent)

AND BETWEEN

Rueters LLP

Applicant

(Respondent)

and

Mark Couper

Respondent

(Appellant)

Mark Couper, acting in person

Fraser Dickson, for the
    respondents

Heard: In Writing

On appeal from the judgment of Justice
    Markus Koehnen of the Superior Court of Justice, dated November 12, 2019.

REASONS FOR DECISION

[1]

In this appeal, Mark Couper seeks to overturn a
    judgment ordering him to pay Rueters LLP approximately $422,000 for legal fees
    and disbursements, pre-judgment interest, and costs.

[2]

For the reasons that follow, the appeal is
    dismissed.

Background in Brief

[3]

In January 2011, Mr. Couper retained Rueter
    Scargall Bennett LLP, predecessor in interest to Reuters LLP (collectively
    Rueters), to represent him in a cross-border breach of contract case. Rueters
    was Mr. Coupers third law firm to handle the litigation.

[4]

Rueters provided Mr. Couper with legal services
    until March 2013. During that period, Rueters significantly advanced the case.
    Among other things, it readied the matter for pre-trial and trial, amended the
    pleadings, obtained additional disclosure, conducted examinations for
    discovery, attended several pre-trial and case conferences, and defeated a
    motion for summary judgment.

[5]

However, in March 2013, Rueters terminated the
    lawyer-client relationship because Mr. Couper refused to follow its legal advice
    on important issues. The culminating incident occurred when Mr. Couper
    instructed Rueters to bring a summary judgment motion based on advice he had received
    from other lawyers and contrary to Reuters advice. Rueters refused to bring
    the summary judgment motion, which it viewed as unwise. Mr. Couper accepted the
    termination of the relationship and voluntarily retained new counsel to replace
    Rueters.

[6]

At the time of termination, Mr. Couper had paid
    only $10,000 of the fees of $333,951.50 (plus HST) which he owed Rueters. He
    also owed Rueters overdue disbursements of $2,703.12.

[7]

On April 16, 2013, the parties entered into a
    compromise compensation agreement (CCA) which resulted in a substantial fee
    reduction for Mr. Couper.  The CCA reduced Rueters fees to $300,000 (before
    HST); it also reduced the original premium of 5% of the judgment obtained to
    1%. Both sums were payable on judgment or settlement. The CCA further provided
    that Mr. Couper would pay the outstanding disbursements within three months. He
    did not make that payment.

[8]

In April 2016, Mr. Couper succeeded at trial and
    obtained a judgment of almost $700,000. In July 2016, he was awarded costs of
    the trial of approximately $780,000.

[9]

In August 2017, Rueters issued an account in
    accordance with the CCA. The account included the still-unpaid disbursements.

[10]

Mr. Couper sought to have the account assessed
    but the Assessment Officer ruled he was without jurisdiction. Both parties then
    brought applications to determine appropriate fees for Rueters.

[11]

The applications judge found in favour of
    Rueters on both applications. By judgment dated November 12, 2019, Mr. Couper
    was ordered to pay Rueters $351, 402.75 plus prejudgment interest of $13,893.09
    and costs of $57,548.46 (the Judgment).

[12]

Mr. Couper appeals the Judgment on three grounds.
    First, he submits that there was a reasonable apprehension of bias on the part
    of the applications judge. This submission is largely based on the applications
    judge having presided over Mr. Coupers motion opposing the confirmation of an
    assessment award regarding the fees of his trial counsel. Second, he submits that
    the applications judge erred in finding that Rueters had good reason to
    withdraw from its representation of him and did not require court approval for
    its withdrawal. Third, he submits that the applications judge erred in
    enforcing the CCA, which he contends is invalid.

No Reasonable Apprehension of Bias

[13]

There is no conduct of the applications judge
    that can be seen as evidence of prejudgment or bias on his part. On the
    contrary, the record shows that the applications judge acted fairly, and with patience
    and integrity, throughout these proceedings.

[14]

Further, the fact that the applications judge
    ruled against Mr. Couper in a related matter is inadequate to establish a
    reasonable apprehension of bias:
Watt v. Beallor Beallor Burns Inc.
,
    2004 CanLII 19821 (Ont. C.A.), at paras. 13-14.

Rueters had Good Reason to Withdraw and Court
    Approval was not Required

[15]

Mr. Couper asserts that the applications judge erred
    in determining that Rueters had good reason to withdraw from the solicitor-client
    relationship because the litigation was at a critical stage, he was prejudiced
    by its withdrawal, and court approval was required.

[16]

We reject this assertion and all of the
    arguments in support of it.

[17]

Counsel cannot abandon their clients on the eve
    of trial or a similarly acute point in the litigation. However, when Rueters terminated
    the solicitor-client relationship, the litigation was not at a critical stage.
    There were no imminent court dates nor was there work that could not be dealt
    with efficiently by new counsel. In fact, Mr. Coupers new counsel was able to
    take the matter to trial quickly and was successful, obtaining judgment in his
    favour.

[18]

Nor was Mr. Couper prejudiced by Rueters
    withdrawal. In rejecting Mr. Coupers claim of prejudice flowing from that
    withdrawal, the applications judge found that Rueters had no liability for any
    costs arising from the withdrawal because Mr. Couper was the author of his own
    misfortune. He found that Mr. Couper was responsible for the material
    breakdown in the relationship for reasons that included his insistence that
    Rueters pursue the summary judgment motion, a motion that could have been
    strategically and financially disastrous for him. We agree with the
    applications judge.

[19]

As for Mr. Coupers contention that court approval
    was required, we begin by noting that Mr. Couper agreed that Rueters could
    remove itself from the record. Thus, in the circumstances of this case, there
    was no need for Rueters to obtain court approval.

[20]

In any event, we endorse the applications judges
    rejection of Mr. Coupers after-the-fact explanation for why his agreement was
    based on a misunderstanding. We also agree with the applications judge that had
    Rueters made such an application, it would have obtained court approval to
    remove itself from the record. As the applications judge found and is described
    briefly above, Mr. Couper was responsible for the material breakdown in the
    solicitor-client relationship.

[21]

We conclude on this issue by noting that the
    findings of the applications judge show that going to court for such approval
    would have been ill-advised and both parties knew that. It was clearly in Mr.
    Coupers best interests that the change in counsel be accomplished as quickly, inexpensively,
    discreetly, and efficiently as possible. That is precisely what transpired.

The CCA was Valid

[22]

On this appeal, Mr. Couper has advanced a new
    issue, namely, that both his initial retainer agreement with Rueters and the
    CCA are invalid because they fail to comply with the requirements of
Contingency
    Fee Agreements
, O. Reg 195/04 to the
Solicitors Act
, R.S.O. 1990,
    c. S. 15 (the Regulation). He did not advance this issue on the Applications.
    Rather, he argued that Rueters had breached the agreements.

[23]

As Mr. Couper did not raise the validity of the
    agreements below, he cannot raise it on appeal. This court has repeatedly
    explained the general rule that appellate courts will not entertain entirely
    new issues on appeal. See, for example,
Kaiman v. Graham
,
2009
    ONCA 77, 245 O.A.C. 130, at para. 18, and
Chuang v. Toyota Canada Inc.
,
2016 ONCA 852
,
at para. 4.

[24]

In any event, even if the CCA were found not to
    comply with the Regulation, we agree with the applications judges implicit
    finding that the CCA was fair and reasonable. Therefore, it was enforceable.

Disposition

[25]

The appeal is dismissed with costs to Rueters. If
    the parties are unable to agree on the quantum of those costs, they may make
    written submissions on that matter, to a maximum of three pages in length, such
    submissions to be received by this court no later than ten days from the date
    of release of these reasons.

[26]

Further, this court affirms the applications
    judges order that Mr. Coupers New Jersey counsel, Snellings Law, shall pay to
    Rueters forthwith, from the funds that it is holding in escrow, all amounts to
    which Rueters is entitled pursuant to the Judgment.

E.E.
    Gillese J.A.

M.
    Tulloch J.A.

M.
    Jamal J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Deutsche Postbank AG v. Kosmayer,
    2020 ONCA 410

DATE: 20200622

DOCKET: C67913

Juriansz, Pardu and Huscroft
    JJ.A.

BETWEEN

Deutsche Postbank AG

Plaintiff (Appellant)

and

David Kosmayer, Dan Kosmayer, Kosmayer Enterprises

Inc.,
    Marketing Extensions Inc. and Kroum Vassilev

Defendants (Respondents)

Jonathan Bell, for the appellant

Douglas B.B. Stewart, for the
    respondents

Heard by video conference:
    June 18, 2020

On appeal from the order of Justice
Bernadette
Dietrich of the Superior Court of Justice, dated December 20,
    2019, with reasons reported at 2019 ONSC 6997.

REASONS FOR DECISION

[1]

We dismissed the appeal in this matter following the
    hearing. These are our reasons.

[2]

The appellant appeals from the motion judge order dismissing its action
    against the respondents. The motion judge found that the delay caused by the
    appellant was inordinate and inexcusable and put the possibility of a fair
    trial for the respondents at risk and dismissed the action as a result.

[3]

The appellant argues that the motion judge failed to consider the
    conduct of the respondents at various stages of the litigation and the
    contribution they made to the delay and erred in finding that the presumption
    of prejudice was not rebutted.

[4]

We disagree.

[5]

The motion judge addressed the appellants argument that both parties
    had contributed to the delay. She set out a chronology of the relevant events
    and the time taken for each. The motion judge found that the action virtually
    ground to a halt following delivery of the appellants initial affidavit of
    documents, and that the delay of over nine years since the commencement of the
    action was inordinate.

[6]

The motion judge considered the appellants excuses for its delay and
    found that they were neither reasonable nor persuasive. For example, she found
    that the respondents request to translate documents was reasonable and that
    the delay caused in translating the documents ought to have been foreseen.

[7]

The motion judge applied the relevant legal principles and made no error
    in doing so. Her decision that the appellants did not rebut the presumption of
    prejudice caused by the delay is a discretionary decision that is entitled to
    deference from this court. There is no basis to interfere with it.

[8]

The appeal is dismissed. The respondent is entitled to costs of
    $20,000, inclusive of taxes and disbursements.

R.G. Juriansz
    J.A.

G. Pardu J.A.

Grant Huscroft J.A.