COURT OF APPEAL FOR ONTARIO

CITATION: 2249659 Ontario Ltd. v. Sparkasse Siegen, 2013 ONCA
    354

DATE:  20130531

DOCKET: C55836

Doherty, Laskin and Blair JJ.A.

BETWEEN

2249659 Ontario Ltd. and Rohwedder Canada Inc.

Plaintiffs (Appellants)

and

Sparkasse Siegen and Thomas Magnete GmbH

Defendants (Respondents)

Jonathan Lisus and James Renihan, for the appellants

Evan L. Tingley, for the respondent, Sparkasse Siegen

P.A. Neena Gupta, for the respondent, Thomas Magnete GmbH

Heard:  January 16, 2013

On appeal from the order of Justice Carole J. Brown of
    the Superior Court of Justice, dated July 6, 2012, reported at, [2012] O.J. No.
    3263.

Doherty J.A.:

I

[1]

The appellants appeal from an order dismissing their claims against the
    respondents.  The motion judge held that the Ontario Superior Court of Justice
    had no jurisdiction to entertain the claims and, alternatively, that Ontario is
forum non conveniens
.  I would allow the appeal.  The Superior Court
    does have jurisdiction, the choice of forum provisions relied on by the
    respondents have no application and Ontario is
forum conveniens
.

II

[2]

The respondent, Thomas Magnete GmbH (TMG) is a German company in the
    business of manufacturing and selling solenoids used in the production of
    automotive transmission systems.  TMG is a subsidiary of Thomas Holding
    Deutschland GmbH (THD).  TMG, THD and other related companies are all
    controlled by the Thomas family from Germany.

[3]

The respondent, Sparkasse Siegen (Sparkasse), is a bank incorporated
    and carrying on business in Germany.  Sparkasse is the banker for TMG and other
    companies under the control of the Thomas family.

[4]

The appellant, Rohwedder Canada Inc. (RCI) is a company incorporated
    in Ontario.  RCI manufactures and sells automated assembly lines to automotive
    parts manufacturers.  Until July 2010, RCI was a wholly-owned subsidiary of
    Rohwedder A.G., a German company.  Rohwedder A.G. declared bankruptcy in 2010.
    The appellant, 2249659 Ontario Ltd., acquired all of the shares of Rohwedder
    North America, a wholly-owned subsidiary of Rohwedder A.G.  RCI was a wholly-owned
    subsidiary of Rohwedder North America making 2249659 Ontario Ltd. the parent
    company of RCI.  2249659 Ontario Ltd. had nothing to do with the events
    underlying this litigation.

III

[5]

There has, of course, been no trial of the merits.  The summary below is
    taken from the Statement of Claim and motion material.

[6]

In February 2006, GETRAG, one of Chryslers suppliers, approached TMG to
    manufacture solenoids to be used in Chrysler transmissions.  The solenoids would
    be manufactured by TMG at a plant in Cambridge, Ontario.  TMG and RCI entered
    into negotiations with a view to RCI manufacturing and installing the assembly
    lines in the Cambridge plant needed to produce the solenoids.

[7]

In June 2007, TMG and RCI entered into a Confidentiality Agreement
    covering all of the information acquired either directly or indirectly in the
    course of the [assembly line] Project.  Paragraph 10 of the Agreement is a
    choice of forum clause:

Unless otherwise expressly prescribed by law, the sole place of
    jurisdiction for all disputes arising from this Agreement is Betzdorf,
    Germany.  All disputes arising from or in connection with this Agreement shall
    be subject to the law of the Federal Republic of Germany.

[8]

In September 2007, TMG and RCI entered into an agreement with respect to
    the purchase and installation of the assembly lines at the Cambridge plant.
    TMG agreed to pay RCI $6,750,000 and made an initial payment of $675,000.  The
    Agreement was negotiated by Joachim Rohwedder, the Chairman of Rohwedder A.G.,
    and Patrick Meyer of TMG.  Both men were based in Germany.  RCI signed and
    accepted the Agreement in Markham, Ontario.

[9]

The Agreement took the form of a Purchase Order.  That Purchase Order
    incorporated by reference TMGs General Business Conditions.  The English
    translation of the General Business Conditions provided to RCI at the time it
    signed the Agreement included these two terms:

·

If the parties have not agreed otherwise the laws of the Federal
    Republic of Germany shall exclusively apply.

·

The court at the place where the plaintiff is domiciled is
    Herdorf [Germany].

[10]

The
    English translation of the General Business Conditions filed by the respondents
    on the motion worded the second of these two terms differently:

·

The place of jurisdiction is Betzdorf [Germany].

[11]

The
    respondents contend that the second condition outlined above is a choice of
    forum provision that applies to this claim.

[12]

In
    the fall of 2007, TMG incorporated Thomas Magnete Canada Inc. (TMC) in
    Ontario.  TMC was a wholly-controlled subsidiary of TMG.  TMG approached
    Sparkasse to provide financing to TMC for the purchase of the assembly lines
    from RCI.  Sparkasse advised that before it could provide that financing, TMC
    would have to be the legal owner of the assembly lines so that the assembly
    lines could be included in Sparkasses security for its loan to TMC.  Sparkasse
    agreed to make the loan on that condition and TMG agreed to guarantee the
    loan.

[13]

TMG
    then asked RCI to substitute its subsidiary TMC for TMG as the purchaser of the
    assembly lines.  TMG explained to RCI that the change would assist TMG in tax
    planning issues.  Some of these discussions occurred in Ontario.

[14]

RCI
    initially declined to make the substitution because TMC, a new company, did not
    appear to have any assets.  RCI, however, did eventually offer to allow the
    substitution of TMC as the purchaser if TMG and Sparkasse agreed to provide
    written assurances that they would pay RCI any amount owing to it under the Purchase
    Order if TMC was unable to make the payments.

[15]

In
    December 2007, Sparkasse prepared a letter addressed to RCI entitled
    Confirmation of Project Funding.  The letter was sent to TMG and forwarded by
    TMG to RCI by email in Ontario.  It read in part:

[T]he project of setting up a new production site by our client
    Thomas Magnete Group in Cambridge/ Ontario is financially supported by
    Sparkasse Siegen.

We herewith confirm, that  in line with the project plan  the
    necessary funds including expenses for the purchase of production lines and
    machinery are in place.

Thomas Magnete GmbH, Herdorf, provided a guarantee in our
    favour regarding the projects financing scheme, thus accepting financial
    liability for the project.

[16]

After
    receiving the letter, RCI agreed to substitute TMC for TMG.  A second Purchase Order
    on the same terms and conditions as the first, but identifying TMC as the
    purchaser, was signed by RCI in Markham in January 2008.  Neither respondent is
    a party to the second Purchase Order.

[17]

RCI
    delivered the assembly lines to the Cambridge, Ontario plant in October and
    November, 2008.  Unfortunately, GETRAG, the company to whom TMC was to provide
    the solenoids, went bankrupt.  TMC advised RCI that the project was on hold, and
    acknowledged that RCI was owed $1,489,617.00.

[18]

In
    2009, TMG wound up TMC and litigation among TMCs creditors ensued.  Both RCI
    and Sparkasse claimed to be entitled to the proceeds of the sale of the
    assembly lines.  The issue was litigated in Ontario and RCI was ultimately
    successful.

IV

the nature of RCIs claim

[19]

RCI
    commenced this lawsuit in September 2010.  The claims against TMG and Sparkasse
    sound in contract and tort.  RCI does not, however, rely on the terms of the agreements
    set out in the Purchase Orders, but instead relies on an agreement that it
    alleges the respondents made in December 2007, whereby they promised to
    guarantee payment to RCI of any amounts not paid by TMC in connection with the
    manufacture and installation of the assembly lines.  Paragraphs 31 and 32 of
    the Statement of Claim advance the contract claim, and paragraphs 33 through 36
    advance the claim for negligent misrepresentation:

31.  In consideration of RCI accepting the Magnete Canada
    purchase order, the Defendants promised in the December correspondence that
    funds necessary to pay RCI under the purchase order were in place and would be
    paid to RCI.  The Defendants promised that they guaranteed the projects
    financing scheme and accepted financial liability for the project.

32.  Furthermore, in response to RCIs request for a commitment
    that in the case of the illiquidity of Magnete Canada, RCI would be paid, the
    Defendants expressly or impliedly accepted that obligation to pay by the
    December correspondence wherein they advised among other things, of Sparkasses
    financial support of the project, Magnete GmbHs acceptance of financial
    liability for the project and the fact that funds for the purchase of the three
    assembly lines are in place.

33.  In addition, in order to induce RCI to accept the Magnete
    Canada purchase order, the Defendants made statements to RCI in the December
    correspondence regarding the financing of the project and regarding payment to
    RCI which were untrue, inaccurate and misleading and thus were
    misrepresentations by reason of the information given and by reason of
    information that was not given and not disclosed.  Particulars are as follows:

34.  At the time of the making of the representations, the
    Defendants intended and knew or ought to have known that RCI would rely thereon
    and would be induced to accept the replacement purchase order from Magnete
    Canada.

35.  In the circumstances, the Defendants were under a duty to
    take care in the making of said representations to RCI.  In breach of that
    duty, the Defendants were guilty of negligence in making said representations.

36.  Acting on the faith of said representations and induced
    thereby, RCI accepted the replacement purchase order from Magnete Canada Inc.
    in replacement for the purchase order of Magnete GmbH and manufactured and
    delivered the three assembly lines in exchange for a promise of payment
    instalments.

V

my approach to the issues raised on the
    appeal

[20]

The
    appeal raises issues pertaining to jurisdiction
simpliciter
, the
    effect of forum selection clauses relied on by the respondents, and the determination
    of whether Ontario is
forum non conveniens
.  Jurisdiction
simpliciter
is a threshold question and I will address it first.  If the motion judge did
    not err in finding that Ontario had no jurisdiction
simpliciter
, there
    is no need to address the other issues.

[21]

As
    I would hold that Ontario has jurisdiction
simpliciter
, I will next
    consider the motion judges treatment of the forum selection clauses in the
    Confidentiality Agreement and Purchase Orders.  An applicable forum selection
    clause designating a forum other than Ontario places a heavy onus on the
    plaintiff to justify Ontario as
forum conveniens
.  Finally, as I would hold there is no applicable
    forum selection clause, I will
consider whether in the absence of
    any forum selection clause, the trial judge erred in concluding that Ontario
    was
forum non conveniens
.

VI

jurisdiction simpliciter

[22]

The
    motion judge referred to the controlling test for determining jurisdiction
    simpliciter set out in
Club Resorts Ltd. v. Van Breda
,
2012 SCC 17, [2012] 1 S.C.R. 572, at
    para. 90.  The motion judge recognized, at para. 15, that under the
Van
    Breda
test certain factors are presumed to
prima facie
entitle a
    court to assume jurisdiction.  Those factors include:

·

the defendant carries on business in the province;

·

the tort was committed in the province; and

·

a contract connected with the dispute was made in the province.

[23]

The
    motion judge ultimately held, at para. 36:

The defendants argue that there is no jurisdiction
simpliciter
,
    as the claim does not fall under any of the provisions of Rule 17.02.  I have
    considered all of the materials before me, including the claims, the evidence,
    case law, and the submissions of the parties, and agree with the submissions of
    the defendants.  I find there is no jurisdiction
simpliciter
with
    respect to the claims made by the plaintiffs against the defendants and that
    there is no real and substantial connection with Ontario.

[24]

With
    respect, I think the motion judge made three errors in reaching her conclusion
    that Ontario did not have jurisdiction
simpliciter
.  First, the motion
    judge appears to have accepted TMGs argument that the existence of a forum
    selection clause in favour of Germany was central to the question of
    jurisdiction
simpliciter
.  I say this having regard to her description
    of the jurisdiction
simpliciter
issue as encompassing a consideration
    of the forum selection clauses (para. 13), and her indication in arriving at
    her conclusion that Ontario was without
jurisdiction simpliciter
that
    she had been guided by (para. 37) the forum selection clause jurisprudence.

[25]

A
    forum selection clause applicable to the relevant litigation identifying a
    forum other than Ontario as the forum of choice cannot deprive Ontario of
    jurisdiction
simpliciter
.  A forum selection clause is relevant to
    whether Ontario should exercise its jurisdiction and not whether Ontario has
    jurisdiction
[1]
:
    see
Momentous.ca Corp. v. Canadian American Assn. of Professional Baseball
    Ltd.
, 2010 ONCA 722, 103 O.R. (3d) 467, at paras. 33-40, affd 2012 SCC 9,
    [2012] 1 S.C.R. 359.  The motion judge should have considered the question of
    jurisdiction
simpliciter
before examining the forum selection
    clauses.  Those clauses, even if applicable to this litigation, could not
    assist in determining jurisdiction
simpliciter
.

[26]

Second,
    the motion judge also erred in considering the adequacy of the appellants pleadings
    in determining whether Ontario had jurisdiction
simpliciter
.
    Sparkasse submitted that the claim of negligent misrepresentation against
    Sparkasse advanced in the Statement of Claim did not properly plead the
    essential elements of that tort.  Sparkasse argued that because the claim was
    not properly pleaded, it could not provide a basis for a finding of
    jurisdiction
simpliciter
.  The motion judge accepted this submission (para.
    32).

[27]

Where
    a defendant seeks an order dismissing a claim for want of jurisdiction, the
    adequacy of the pleadings must be assessed in the context of that challenge.  A
    jurisdictional motion is not the time or place to consider the adequacy of the
    pleadings for the purpose of a trial.  That is the function of a Rule
    21.01(1)(b) motion.

[28]

It
    is open to a party bringing a jurisdictional challenge to argue that the
    pleadings are so inadequate as to preclude an accurate characterization of the
    nature of the claims advanced in the pleading.  A pleading that falls into that
    category would provide considerable support for the submission that the
    pleadings do not show an adequate connection between Ontario and the claim to
    warrant a finding of jurisdiction.  However, whatever may be said about any
    deficiencies in the negligent misrepresentation pleadings in this case, they do
    not prevent a proper assessment of the connection of that claim to Ontario.  Any
    further inquiry into the adequacy of the pleadings had no relevance on the
    motion challenging the jurisdiction of the Ontario court.

[29]

The
    motion judges third error arose through her failure to focus on the nature of
    the contractual claim advanced in the Statement of Claim.  That claim did not
    rely on the payment terms in the Purchase Orders, but rather on the alleged promise
    by Sparkasse and TMG to make the payments if TMC, the substituted purchaser, did
    not pay as required under the Purchase Orders.  To the extent that the motion
    judge examined the contractual relationship of the parties (paras. 33-34), she focussed
    on the Purchase Orders and not the agreement alleged in the Statement of
    Claim.  In doing so, she failed to consider whether the agreement alleged in
    the Statement of Claim, as opposed to the Purchase Orders, was entered into in
    Ontario, thereby providing a presumptive connecting factor that
prima facie
entitled Ontario to assume jurisdiction
simpliciter
over the claim.

[30]

Having
    concluded that the motion judge erred in her jurisdiction
simpliciter
analysis in the foregoing respects, I turn to a consideration of the
Van
    Breda
factors.  The appellants rely on three presumptive connecting
    factors:

·

the respondents were carrying on business in Ontario;

·

the tort of negligent misrepresentation was committed in Ontario;
    and

·

the contracts relied on in the Statement of Claim were made and
    breached in Ontario.

[31]

There
    is a strong argument that all three factors exist, although any one factor will
    give rise to a presumption of jurisdiction under the
Van Breda
analysis.
    Perhaps the strongest of the three factors relied on by the appellants is its
    contention that the negligent misrepresentation occurred in Ontario.  The tort
    of negligent misrepresentation occurs where the misinformation is received or
    acted upon:
Cannon v. Funds for Canada Foundation
, 2010 ONSC 4517, at
    para. 52.  RCI received the alleged misrepresentations via the email sent to
    its place of business in Markham, Ontario.  Based on this allegation, the tort
    of negligent misrepresentation occurred in Ontario.

[32]

It
    is arguable that the allegation of a commission of tort in Ontario is enough to
    give Ontario jurisdiction
simpliciter
over both the tort claim and the
    closely related contract claim:  see
Cannon
, at paras. 80-91. I need
    not decide that issue, as in my view the claim as pleaded also alleges a
    contract entered into and/ or broken in Ontario.

[33]

The
    representations by the respondents relied on by the appellants as constituting
    the guarantee of TMCs indebtedness were made in response to RCIs offer to substitute
    TMC as the purchaser if the respondents agreed to provide the guarantees. RCI
    received notification of the respondents acceptance of that offer at its
    office in Markham.  As a general rule, a contract is made where the offeror
    (RCI) receives notification of the offerees (the respondents) acceptance of
    the offer:
Eastern Power Ltd. v. Azienda Communale Energia and Ambiente
(1999), 178 D.L.R. (4
th
) 409 (Ont. C.A.), at paras. 21-22.

[34]

On
    the facts as alleged, the contract RCI relies on in advancing its contract claim
    was made in Ontario.  For the reasons explained in connection with the negligent
    misrepresentation pleadings, a jurisdiction motion is neither the time nor the place
    to consider arguments that the allegations in the Statement of Claim are
    insufficient to establish a contract between RCI on the one hand, and TMG and
    Sparkasse on the other.

[35]

As
    I am satisfied that the alleged negligent misrepresentations were made in
    Ontario and the contract relied on by RCI was entered into in Ontario, I need
    not examine the appellants argument that the respondents were carrying on
    business in Ontario.  I say only that, having regard to TMCs status as a fully-controlled
    subsidiary of TMG, there is a formidable argument that TMG was carrying on business
    in Ontario:
Stubbs v. A.T.S. Applied Tech Systems Inc.
, 2010 ONCA 879,
at paras. 45-48.

[36]

My
    conclusion that the allegations are sufficient to establish connecting factors
    that create a presumption of jurisdiction does not end the
Van Breda
analysis.  The presumption can be rebutted by the respondents.  As explained in
Van Breda
, at para. 95:

The burden of rebutting the presumption of jurisdiction rests,
    of course, on the party challenging the assumption of jurisdiction.  That party
    must establish facts which demonstrate that the presumptive connecting factor
    does not point to any real relationship between the subject matter of the
    litigation and the forum or points only to a weak relationship between them.

[37]

The
    respondents challenged jurisdiction
simpliciter
claiming first that
    the forum selection clauses were determinative and, second, that under the
Van
    Breda
test, there were no presumptive connecting factors.  I have rejected
    both of those arguments for the reasons set out above.  The respondents did not
    suggest that if there were presumptive connecting factors, the respondents had
    rebutted the presumption of jurisdiction flowing from those factors.  There is
    nothing in this record that could support that argument.

[38]

Ontario
    has jurisdiction
simpliciter
.

VII

the effect of the purported forum selection clauses

[39]

Forum selection clauses in an agreement between parties, particularly
    sophisticated commercial parties, will normally be enforced by Ontario courts.
    A plaintiff who seeks to litigate in Ontario, having agreed that the dispute would
    be litigated in another forum, carries a heavy burden and must show a strong
    cause for departing from the terms of the agreement:
Z.I. Pompey
    Industrie v. ECU-Line N.V.
, 2003 SCC 27, [2003] 1 S.C.R. 450, at para. 20;
Expedition Helicopters Inc. v. Honeywell Inc.
, 2010 ONCA 351, 100 O.R.
    (3d) 241.

[40]

In
Expedition Helicopters Inc.
, this court described the burden in these terms, at
    para 11:

Rather, the forum selection clause pervades the [
forum non conveniens
]
    analysis and must be given full weight in the consideration of other factors.
    It is not enough for the plaintiff to establish a strong case that Ontario is
    the more convenient forum.  The plaintiff must show strong cause that the
    case is exceptional and the forum selection clause should not be enforced.

[41]

The
    requirement that the plaintiff show strong cause for litigating in a forum
    other than the forum agreed upon presumes that there is an agreement that
    contains a clear forum selection clause, and that the forum selection clause,
    by its terms, applies to the litigation that the plaintiff seeks to bring in
    Ontario:
Loat v. Horvath
,
2011 ONCA 509, 338 D.L.R.
    (4th) 644,
at para. 35;
Matrix Integrated Solutions Ltd. v. Naccarato
(2009), 97 O.R. (3d) 693 (C.A.), at paras. 10-11. The appellants argue that
    neither of these preconditions is met.

[42]

The
    respondents rely on two different forum selection clauses.  They point first to
    the confidentiality agreement between TMG and RCI.  That agreement contains a
    clear choice of forum clause (
supra
, para. 7).  However, the clause
    applies to all disputes arising from or in connection with this Agreement.
    The Agreement relates to the mutual duty of confidentiality owed by TMG and
    RCI in respect of all information acquired either directly or indirectly during
    the course of the assembly line project.

[43]

The
    claims advanced by the appellants have nothing to do directly or indirectly
    with any alleged breach of the confidentiality agreement.  They do not arise
    from and are not connected to that agreement.  The forum selection clause in
    the confidentiality agreement has no application to this litigation.

[44]

The
    respondents rely more heavily on what they claim is a forum selection clause in
    the Purchase Orders.  As set out above, two versions of the relevant clause
    were before the motion judge.  She relied on the version provided to RCI by TMG
    at the time of the first Purchase Order.  The alleged forum selection clause in
    that version read:

The court at the place where the plaintiff is domiciled is Herdorf.

[45]

The
    motion judge described this clause as providing that the place of jurisdiction
    is Herdorf, Germany (para. 6).  I seriously doubt that the clause as worded in
    the version provided to RCI at the time it entered into the first Purchase
    Order has the clarity needed to create an effective forum selection clause.  The
    alternate version put forward by the affiant for the respondents on the motion
    which declares that the place of jurisdiction is Betzdorf is clearer and
    could, in my view, be construed as a forum selection clause applicable to
    disputes arising out of the Purchase Order.

[46]

I
    need not decide whether either version is sufficiently clear to justify
    interpreting the term as a forum selection clause.  I will assume that there is
    a forum selection clause in favour of Germany in the Purchase Orders.  Even on that
    assumption, however, the respondents must still demonstrate that the claims advanced
    against them fall within the ambit of the language in the forum selection
    clause.  The bald language in either version of the clause cannot be extended to
    disputes based on claims that are outside of the terms of the Purchase Orders.
    The appellants claims, properly characterized, do not claim relief for non-compliance
    with the payment terms of the Purchase Orders.  The claims are against the
    alleged guarantors of the payments required under the Purchase Orders.

[47]

The
    commercial interchange leading up to the Purchase Orders and the terms of the
    Purchase Orders are central features of the factual context in which the
    appellants claims are advanced.  The claims are, however, distinct from
    obligations arising under the Purchase Orders.  As counsel for the appellants
    persuasively argues, the appellants do not seek an interpretation or implementation
    of any provision of the Purchase Orders.  Rather, they seek enforcement of the
    respondents guarantees.  Assuming there is a forum selection clause in the
    Purchase Orders, it does not apply to these claims.

[48]

I
    would add that neither respondent is a party to the second Purchase Order.  I
    do not see how, on their theory of the case, either could enforce the terms of
    the second Purchase Order.

VIII

is ontario
forum
Non
conveniens
?

[49]

Unlike
    the determination of jurisdiction
simpliciter
, the
forum conveniens
inquiry engages judicial discretion.  Different judges can reasonably and
    properly come to different conclusions on whether Ontario is
forum non
    conveniens
in a given set of circumstances.  This court will defer to the
    findings made at first instance absent an error in law or principle, or a clear
    and serious factual error:
Van Breda
, at para. 112.

[50]

In
    her relatively brief
forum non conveniens
analysis, the motion judge
    referred to various connections that the litigation had to Germany and
    Ontario.  In the course of doing so, she said, at para. 39:

The plaintiffs have agreed that the laws of Germany apply, and
    that the place of performance and the court at the place where the plaintiffs
    are domiciled is Herdorf.

[51]

In
    referring to the plaintiffs (now appellants) as having agreed that the law of
    Germany applied, the motion judge was referring to the terms of the Purchase
    Orders.  For the reasons set out above, the Purchase Orders do not govern these
    claims.  There was no agreement by the plaintiffs (now appellants) that the law
    of Germany would apply to these claims.

[52]

Clearly,
    the negligent misrepresentation claim would be governed by the law of Ontario.
    Insofar as the contract-based allegations are concerned, the most that could be
    said at this stage is that there is an argument that the law of Germany should
    apply.  With respect, the motion judge erred in holding that by virtue of the
    terms of the Purchase Orders German law would apply to this litigation.

[53]

The
    motion judges erroneous determination that German law would govern the claims
    was part of her
forum non conveniens
analysis.  That error amounts to an error in law, removing the requirement that
    this court defer to the motion judges decision and requiring this court to
    make its own assessment of whether Ontario is
forum conveniens
.  In making that assessment,
I bear in
    mind that the respondents have the burden of showing that Ontario is
forum
    non conveniens
.  To meet that burden,
    the respondents must demonstrate that
fairness to the parties and
    the efficient resolution of these claims makes Germany clearly a more appropriate
    forum for resolving these claims than is Ontario:
Van Breda
, paras.
    103-111.

[54]

On
    my review of the relevant facts, neither Ontario nor Germany is clearly a more
    appropriate forum.  The location of potential witnesses, and the physical
    location of documentary evidence, seems to me, in a commercial dispute like
    this, to offer little reason for preferring either Germany or Ontario.  The
    witnesses are distributed between the jurisdictions, and other jurisdictions, and
    none should be particularly surprised that international commercial activities
    might take them to court in a foreign jurisdiction.  The documents are
    presumably easily portable.

[55]

The
    application of Ontario law to at least part, and perhaps all of the claims
    advanced by the appellants, is a relevant factor favouring Ontario.  Here, too,
    however, I do not think undue weight should be attached to this factor.  Presumably,
    a German court will have no difficulty applying Ontario law to the
    misrepresentation allegation.

[56]

Ultimately,
    the
forum conveniens
inquiry comes down to a characterization of the commercial
    activity giving rise to this litigation.  By commercial activity, I include not
    only the alleged guarantees giving rise to the claims, but also the course of
    commercial activity that gave rise to the guarantees.  That activity was German
    in the sense that the controlling corporations and the individuals making the
    decisions on behalf of the controlling corporations operated out of Germany and
    viewed Germany as the place to litigate disputes arising out of the
    confidentiality agreement and probably the Purchase Orders.

[57]

In
    another sense, however, the underlying commercial activity is Canadian in that
    it represents the expansion of German business interests into the automobile
    parts manufacturing industry in Ontario.  Presumably, the Thomas controlled companies
    saw significant potential business through active participation in that
    industry in Ontario.  The end product of the commercial relationship  the
    assembly lines  were to be manufactured and installed in Ontario.

[58]

At
    the risk of oversimplifying the situation, the commercial activities that give
    context to this litigation can be described as business decisions made by Germans
    in Germany about doing business in Ontario.  I think both jurisdictions have
    meaningful connections to that commercial activity.

[59]

The
    respondents, as the parties seeking a stay based on the argument that Ontario
    was
forum non conveniens
, had the onus of showing that a German court
    was in a better position to fairly and efficiently dispose of this claim than
    was an Ontario court.  I think the respondents demonstrated that Germany was a
forum
    conveniens
, but I do not think the respondents demonstrated that Germany
    was clearly more appropriate for disposing of the litigation than was
    Ontario:  see
Van Breda
, para. 109. The Ontario proceedings should not
    have been stayed on the basis of
forum non conveniens
.

IX

conclusion

[60]

I
    would allow the appeal, set aside the order of the motion judge and substitute
    an order dismissing the motions brought by the respondents for orders
    dismissing or permanently staying this action.

[61]

The
    parties may make written submissions as to costs.  The appellants submissions
    of less than 10 pages should be served on the respondents and filed within 30
    days of the release of these reasons.  The respondents submissions should be
    served and filed within 15 days of the receipt of the appellants submissions.

RELEASED:  DD  MAY 31 2013

Doherty J.A.

I agree J.I. Laskin
    J.A.

I agree R.A. Blair
    J.A.

[1]

The situation is quite different where the forum selection
    clause identifies Ontario as the forum of choice.  In that situation, the
    clause arguably gives Ontario jurisdiction through the consent of the parties.


COURT OF APPEAL FOR ONTARIO

CITATION: Barud (Re), 2013 ONCA 301

DATE: 20130507

DOCKET: C55609

Weiler, Gillese and Hoy JJ.A.

IN THE MATTER OF:  Tiriq Barud

AN APPEAL UNDER PART XX.1 OF THE
CODE

Tariq Barud, acting in person

Dean Embry, as
amicus curiae

Janice E. Blackburn, for the Centre for Addiction and
    Mental Health

Tracy Kozlowski, for the Attorney General

Heard: May 6, 2013

On appeal against the disposition of the Ontario Review
    Board dated, March 14, 2012.

APPEAL BOOK ENDORSEMENT

[1]

The appellant submits that an inference cannot be drawn from the
    evidence that, if granted an absolute discharge, she would likely stop taking
    her medication. We disagree. The slippage in attendance for psychiatric
    counselling in the past year, coupled with her lack of insight into the
    relationship between her need to take medication and her violent history of
    behaviour, along with the omission to take her medication at times, is evidence
    supporting the boards conclusion. Dr. Eayrss opinion was that in the event of
    an absolute discharge, given that appointment attendance would become
    voluntary, the appellant was unlikely to continue with her medication risking
    future mental and behavioural deterioration. The Boards disposition is
    reasonable and supported by the evidence. In view of our conclusion we need not
    address the Boards comments respecting the likelihood of the appellant
    becoming pregnant and re-entering a post partum psychotic state.

[2]

The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: Boehme (Re), 2013 ONCA 337

DATE20130524

DOCKET: C56190

Weiler, Blair and Strathy JJ.A.

IN THE MATTER OF RALPH BOEHME

AN APPEAL UNDER PART XX.1 OF THE
CRIMINAL CODE

Ralph Boehme, acting in person

Paul Burstein,
amicus curiae

Michael Perlin, for the respondent Crown

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

Heard: May 22, 2013

On appeal against the disposition of the Ontario Review
    Board dated September 20, 2012 (Reasons for Disposition Dated November 29,
    2012).

ENDORSEMENT

Overview

[1]

Mr. Boehme seeks to set aside the disposition of the Ontario Review
    Board determining that he continues to pose a significant threat to the safety
    of the community and requiring his continued detention in custody at the
    General Forensic Service unit of the Ontario Shores Centre for Mental Health Sciences.
    The disposition makes allowances for him to enter the community and, with
    approval of the Person-in-Charge of Ontario Shores, to reside in the community.

[2]

Mr. Boehme asked for a conditional discharge at the hearing, but in this
    Court requests an absolute discharge.  He submits that the ORB's decision was
    unreasonable and that the Board misapprehended the evidence and made erroneous
    findings of fact.  He also seeks to file fresh evidence.

[3]

We do not accept these submissions.  In addition, we conclude that the
    proposed fresh evidence, even if admissible, would not have affected the
    decision of the Board and would not affect the disposition of this appeal.

The Index Offence(s) and the Circumstances of the Appellant

[4]

The specific index offence occurred in August 2011, but was predated by
    a number of other related offences.  The appellant was found not criminally
    responsible (NCR) for failing to comply with a probation order and uttering
    threats against the complainant.  The complainant was the owner/operator of a
    property management company and had managed the property in which the
    appellant's late mother had lived and died.  The appellant was given a period
    of time to retrieve his mothers effects and, when he did not comply, the
    management company placed them in storage, which meant that the appellant had
    to pay a storage fee to obtain their release.

[5]

This triggered a lengthy crusade by the appellant against the
    complainant in the courts and elsewhere.  The appellant became obsessed with
    the complainant.  In 2000, 2002, 2004 and 2008, he was convicted of criminally
    harassing behaviour.  The failure to comply charge in August 2011 related to
    the probation order imposed following his 2008 conviction.

[6]

The appellant is diagnosed as suffering from Delusional Disorder.  He
    continues to deny the existence of any mental disorder and has a long history
    of non-compliance with his prescribed medication.  Although he has had no
    direct contact with the complainant since his original detention at Ontario
    Shores, the appellant drafted a letter to the Toronto Sun, scathingly critical of
    the complainant, accusing her of having caused him all sorts of financial and
    emotional harm due to his Germanic descent, which the appellant's attending
    psychiatrist considered to be evidence of his "continuing persistent
    delusional disorder and lack of insight and judgment."

[7]

On this basis, the treating psychiatrist and the hospital concluded that
    the appellant continues to be unable to manage his disease, that he would be
    unstable in the community, and that he continued to pose a significant threat
    to the safety of the community.

[8]

The ORB accepted this conclusion.

The Merits of the Appeal

[9]

On the merits of the appeal, we note that in his factum, Mr. Burstein,
    as
amicus curiae
, very carefully and helpfully outlined the history
    and the facts underlying the Board's disposition, as well as the appellant's
    arguments, but concluded in the end that "[a]fter having reviewed the
    record of the hearing before the Board, as well as the new information which the
    Appellant has since filed with this Court,
amicus curiae
cannot offer
    this Court any further assistance concerning the Appellant's ground of
    appeal."

[10]

We
    do not accept the appellant's submission that the Board's decision was
    unreasonable insofar as it denied him a conditional or absolute discharge.  The
    decision was based primarily on (1) the appellant's inability to live
    independently in the community and (2) the continued significant threat posed
    by the appellant's poor insight and continued thoughts of delusion and
    persecution.  There was ample basis in the record to support these findings and
    they fully support the decision to deny the appellant a conditional discharge.
    As an expert tribunal, the Board's decision is entitled to considerable
    deference.

[11]

Nor
    do we accept that the Board misapprehended the evidence.  We see no material
    errors in its treatment of the evidence.

Fresh Evidence

[12]

Finally,
    even if we were to take into account the fresh evidence sought to be filed by
    the appellant, that evidence would not have affected the Board's decision in
    any way, in our view.  The Board would still have been left with its concern
    that, as a result of his Delusional Disorder, the appellant would continue to
    be obsessed with his pursuit of the complainant and pose a continued threat to
    the community as a result.  The same considerations apply to the appeal.

Disposition

[13]

For
    the foregoing reasons, we dismiss the appeal.

K.M. Weiler J.A.

R.A. Blair J.A.

G.R. Strathy J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Boyce v. The Co-Operators General Insurance
    Company, 2013 ONCA 298

DATE: 20130508

DOCKET: C56369

Doherty, Cronk and Lauwers JJ.A.

Thomas Boyce and Marilyn Boyce

Respondents
    (Plaintiffs)

and

The Co-Operators General Insurance Company

Appellant
    (Defendant)

Mitchell K. Kitagawa, for the appellant (defendant) the
    Co-Operators General Insurance Company

Richard Knott, for the respondents (plaintiffs) Thomas
    and Marilyn Boyce

Heard:  April 30, 2013

On appeal from the order of Justice Michael Quigley of
    the Superior Court of Justice, dated November 13, 2012.

By the Court:

I

[1]

The respondents own and operate a womans fashion boutique known as
    Portside Boutique.  Their business has been insured by the appellant
    (Co-Operators) for a number of years.

[2]

On October 30, 2010, Ms. Boyce arrived at the store to discover a foul
    odour emanating from the entrance area.  The business had to be closed for a
    time, substantial clean-up costs were incurred, and a great deal of inventory could
    not be salvaged.  The respondents contacted the Co-Operators immediately.  Co-Operators
    took the position that the smell was caused by a skunk and that any damage was
    not covered by the policy.  The respondents claimed that the business had been
    vandalized, a peril covered by the policy.

[3]

The respondents filed a proof of loss claim in December 2010 and
    commenced this action by Statement of Claim issued in February 2012, more than
    one year, but less than two years after the incident.

[4]

Co-Operators moved for summary judgment, claiming that the action was time
    barred by a one-year limitation period.  Co-Operators relied on the one-year statutory
    limitation period in s. 148 of the
Insurance Act
, R.S.O. 1990, c. I8.

[5]

On the motion, Co-Operators expanded its argument to include the submission
    that the action was out of time by virtue of the contractual provisions in the
    policy that incorporated the one-year limitation set out in the
Insurance
    Act
.  Co-Operators also argued that Mr. Boyce was not a party to the
    policy of insurance.

[6]

The motion judge found that the one-year statutory limitation
    period in the
Insurance Act
had no
    application.  Co-Operators does not challenge that finding on appeal.  The
    motion judge also held that Thomas Boyce was a party to the insurance
    contract.  That finding is not challenged on appeal.

[7]

The motion judge further held that the provision in the policy limiting
    coverage to claims made within one year of the loss did not override the
    statutory two-year limitation period set out in s. 4 of the
Limitations
    Act, 2002
, S.O. 2002, c. 24.  In so holding, the motion judge held that
    the term in the policy lacked the specific language necessary to override the
    statutory limitation period and that in any event, the contract of insurance
    was not a business agreement as required under s. 22(5) of the
Limitations
    Act, 2002
.

II

[8]

Co-Operators does appeal from the motion judges holding that the
    contract of insurance does not contain an enforceable one-year limitation
    period.  The appeal raises three questions.

1)

Is there a term in the
    contract of insurance that provides for a one-year limitation period?

2)

If there is a term in
    the contract imposing a one-year time limit on claims, is that term capable of
    overriding the otherwise applicable two-year limitation period set out in the
Limitations
    Act, 2002
?

3)

Is the contract of
    insurance a business agreement as defined in s. 22(6) of the
Limitations
    Act, 2002
?

III

the relevant terms of the insurance contract

[9]

The contract contains the following provisions:

Conditions

The Statutory Conditions apply to the peril of fire and as
    modified or supplemented by forms or endorsements attached apply as Policy
    Conditions to all other perils insured by this policy.

Statutory Conditions

14.
Action

Every action or proceeding against the insurer for recovery
    of any claim under or by virtue of this contract is absolutely barred unless
    commenced within one year* next after the loss or damage occurs.

* Two years in province of Manitoba and Yukon Territory

[10]

These provisions
    purport to incorporate the statutory conditions in s. 148 of the
Insurance
    Act
into the contract.

the relevant provisions of the limitations act, 2002

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

22. (1) A limitation period under this Act applies despite any
    agreement to vary or exclude it, subject only to the exceptions in subsections
    (2) to (6).

Exception

(2) A limitation period under this Act may be varied or
    excluded by an agreement made before January 1, 2004.

Same

(3) A limitation period under this Act, other than one
    established by section 15, may be suspended or extended by an agreement made on
    or after October 19, 2006.

Same

(4) A limitation period established by section 15 may be
    suspended or extended by an agreement made on or after October 19, 2006, but
    only if the relevant claim has been discovered.

Same

(5)
The
    following exceptions apply only in respect of business agreements:

1.
A
    limitation period under this Act, other than one established by section 15, may
    be varied or excluded by an agreement made on or after October 19, 2006.

2. A limitation period established by section 15 may be varied
    by an agreement made on or after October 19, 2006, except that it may be
    suspended or extended only in accordance with subsection (4).

Definitions

(6) In this section,

business
    agreement means an agreement made by parties none of whom is a consumer as
    defined in the
Consumer Protection Act, 2002
; (accord commercial)

vary includes extend, shorten and suspend.

IV

(1)

is
    there a term in the contract of insurance providing for a one-year limitation?

[11]

The language in the
    policy set out above tracks very closely the language in the insurance contract
    considered in
International Movie Conversions Ltd. v. ITT
    Hartford Canada
(2002), 57 O.R. (3d) 652 (C.A.).  In that case, the judge
    on the summary judgment motion described the language in the policy as clear
    and not requiring any reference to a statute for clarification.  Cronk J.A., after
    outlining the language and the analysis of the motion judge, indicated, at
    para. 28:

I agree with these conclusions by the
    motion judge.  Clause 14 is clear and unambiguous.  Indeed, in my view, it is
    difficult to conceive how it could have been made more explicit.
Use of the
    heading statutory conditions does not render it ambiguous or confusing.
    [Emphasis added.]

[12]

The motion judge in
    this case described the provision as misleading in that it suggested that the
    one-year limitation was mandated by legislation and not by contract.  In coming
    to his conclusion, the motion judge made no reference to
International
    Movie Conversions Ltd.
That case had direct application to this case.    This
    policy, like the policy in
International Movie Conversion
    Ltd.
, provides for a one-year limitation on claims in clear and unambiguous
    language.

(2)

is
    the term in the contract providing for a one-year limitation capable of
    overriding the otherwise applicable two-year limitation period in the
limitations
    act, 2002
?

[13]

The
    motion judge recognized that a term in a contract purporting to vary an
    otherwise applicable limitation period under the
Limitations Act, 2002
had to comply with s. 22 of the
Limitations
    Act, 2002
.  Co-Operators relied on s. 22(5).  As set out above, that section
    allows parties to vary or exclude, by agreement, the otherwise applicable
    statutory limitation period.  Section 22(5), however, applies only to business
    agreements as defined in s. 22(6).

[14]

Before
    considering whether the insurance policy qualified as a business contract,
    the motion judge, relying principally on
Bell Canada v. Plan Group Inc.
,
    2012 ONSC 42, determined that an agreement could be effective for the purposes
    of s. 22 of the
Limitations Act, 2002
, only if it contained the
    following:

·

specific reference to the statutory limitation period;

·

clear and unequivocal language that the parties were intending to
    vary the statutory protection; and

·

a provision clearly alerting the insured that they were foregoing
    a statutory right to a longer limitation period.

[15]

The
    motion judge added a fourth requirement, at para. 46:

For the purposes of s. 22 of the
Limitations Act, 2002
,
    I would further add that any agreement to forego the statutory protection
    contained in the
Limitations Act, 2002
ought, at a minimum, to be
    signed by the person(s) foregoing such a right in order to make clear that
    he/she understands the forfeiture of that statutory right.

[16]

We
    cannot accept that an agreement purporting to vary the statutory limitation
    period is enforceable under s. 22 of the
Limitations Act, 2002
only if
    it contains the specific requirements set out by the motion judge.  Nothing in
    the language of s. 22 offers any support for imposing these requirements.  The
    only limitation in s. 22(5) is found in the definition of business
    agreement.  No other limitation appears, expressly or by implication, and
    certainly no content related requirements appear in s. 22(5).

[17]

The
    case law relied on in
Bell Canada
also does not support the judicial imposition
    of the various specific requirements set out in
Bell Canada
and
    adopted by the motion judge.
Bell Canada
refers to two authorities.  One,
Armak Chemicals Ltd. v. Canadian National Railway Co.
(1991), 3 O.R.
    (3d) 1 at 16, involved a contractual term that shifted statutorily imposed liability
    for fires from the railway to the other contracting party.  The second case,
Hunter
    Engineering Company Inc. v. Syncrude Canada Ltd.
, [1989] 1 S.C.R. 426 at
    449-50, involved a contractual provision that one party claimed replaced a
    broad statutory warranty with a narrower contractual warranty.

[18]

In
Armak
, this court indicated that very clear language was required before
    a contractual provision could successfully shift a statutory obligation from
    one party to another.  In
Hunter Engineering Company Inc.
, the
    majority of the Supreme Court of Canada required clear and direct language
    before interpreting a term in a contract as relieving against a statutorily
    imposed warranty.

[19]

Neither
    judgment purported to detail the contents of the language needed to meet the
    standards described in the two cases.  Certainly, neither case suggested the kind
    of detailed requirements described by the motion judge.  In fact, a close
    reading of
Hunter Engineering Company Inc.
, at p. 439,
indicates the contrary.  In
Hunter
,
    one of the parties (Allis-Chalmers) had a term in its contract that provided
    that the warranty in the contract was the only warranty  and no other
    warranty or conditions statutory or otherwise, shall be implied.  The majority
    in the Supreme Court of Canada had no difficulty in finding that this express
    term excluded the statutory warranty despite the absence of any reference to
    the terms of the statutory warranty and the absence of any specific
    acknowledgement that the other contracting party was giving up a statutory
    right.  Clearly, the provision in the Allis-Chalmers contract would not have
    satisfied the prerequisites set down by the motion judge.

[20]

A
    court faced with a contractual term that purports to shorten a statutory
    limitation period must consider whether that provision in clear language describes
    a limitation period, identifies the scope of the application of that limitation
    period, and excludes the operation of other limitation periods.  A term in a
    contract which meets those requirements will be sufficient for s. 22 purposes,
    assuming, of course, it meets any of the other requirements specifically
    identified in s. 22.

(3)

is
    the insurance contract a business agreement?

[21]

As
    outlined above, business agreement is defined in s. 22(6) as an agreement
    made by parties, none of whom is a consumer as defined in the
Consumer
    Protection Act, 2002
, S.O. 2002, C.30
.
    That
Act
defines consumer as:

Consumer means an individual acting for personal, family or household
    purposes and does not include a person who is acting for business purposes.

[22]

By using the definition of consumer as found in the
Consumer
    Protection Act, 2002
, the legislature drew a bright line for the purposes
    of s. 22(5) between agreements entered into for personal, family or household
    purposes and other agreements.  Subject to the potential application of the
    other parts of s. 22, persons entering into agreements for personal, family or
    household purposes cannot contract out of the limitation periods in the
Limitations
    Act, 2002
.  Persons contracting for
    other purposes can do so.

[23]

The motion judge concluded that the
insurance
    contract was not a business agreement under s. 22(5) for two reasons.  First,
    he described the contract as a peace of mind contract.  That characterization
    may be appropriate.  It does not, however, have any effect on whether the
    insurance contract falls within the meaning of business agreement for the
    purposes of s. 22(5) of the
Limitations Act, 2002
. That determination
    is made solely by reference to the definition of consumer in the
Consumer
    Protection Act, 2002
.

[24]

Second, the trial judge concluded that because insurance
    contracts were not covered by the
Consumer Protection Act, 2002
, they could not be business agreements under s.
    22(5).  The scope of the
Consumer Protection Act, 2002
is irrelevant.  The only relevance of the
Consumer
    Protection Act, 2002
flows from the incorporation
    of the definition of consumer from that
Act
into s. 22(5) of the
Limitations Act,
    2002
.

[25]

The respondents
    contracted with Co-Operators for insurance covering various risks related to
    the operation of their business.  The contract was not for personal, family or
    household purposes.  The contract fell within the definition of business
    agreement in s. 22(6) of the
Limitations Act, 2002
.

V

conclusion

[26]

The
    appeal must be allowed, the order below set aside, and an order made dismissing
    the action insofar as it is based on a claim made under the insurance policy.

[27]

Co-Operators
    is entitled to its costs on the motion and in this court.  We fix those costs
    at $6,000 on the motion and $5,000 on the appeal, both amounts inclusive of
    disbursements and relevant taxes.

RELEASED:  DD  MAY 08 2013

Doherty J.A.

E.A.
    Cronk J.A.

P. Lauwers
    J.A.


WARNING

THIS
    IS AN APPEAL UNDER THE

CHILD
    AND FAMILY SERVICES ACT

AND
    IS SUBJECT TO S. 45 OF THE ACT WHICH PROVIDES:

45. (7)
The court may make an order,

(a)     excluding a
    particular media representative from all or part of a hearing;

(b)     excluding
    all media representatives from all or a part of a hearing; or

(c)     prohibiting
    the publication of a report of the hearing or a specified part of the hearing,

where the
    court is of the opinion that the presence of the media representative or
    representatives or the publication of the report, as the case may be, would
    cause emotional harm to a child who is a witness at or a participant in the
    hearing or is the subject of the proceeding.

45. (8)
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.

45. (9)
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.

COURT OF APPEAL FOR ONTARIO

CITATION: Children's Aid Society of the Regional Municipality
    of Waterloo v. L.M., 2013 ONCA 335

DATE: 20130523

DOCKET: C56474

Goudge, Gillese and Pepall JJ.A.

BETWEEN

The Childrens Aid Society of the Regional
    Municipality of Waterloo

Applicant (Respondent)

and

L.M.

Respondent (Appellant)

Brigitte Gratl, for the appellant

Catherine Bellinger, for the children

Jeff Boich, for the respondent

J. Stanley Jenkins, for Legal Aid Ontario

Heard: May 22, 2013

On appeal from the judgment of Justice Gerald E. Taylor
    of the Superior Court of Justice, dated November 30, 2012.

APPEAL BOOK ENDORSEMENT

[1]

As the legislature has made clear and this court has underlined
    repeatedly the best interests of the children require that child protection
    matters proceed expeditiously.  To now permit this appeal to proceed would push
    off final resolution of the situation of these children well into the future
    contrary to the policy imperative.

[2]

Moreover, it appears to us that this appeal has very little merit and
    carries little chance of success.

[3]

In light of these important considerations, we can see no basis to
    interfere with the judgment appealed from.

[4]

The appeal is dismissed. No costs ordered.


COURT OF
          APPEAL FOR ONTARIO

CITATION:
          Combined Air Mechanical Services Inc. v. Flesch, 2013 ONCA 304

DATE: 20130508

DOCKET:
C51986

Winkler C.J.O.,
          Laskin, Sharpe, Armstrong and Rouleau JJ.A.

BETWEEN

Combined Air Mechanical Services
          Inc., Dravo Manufacturing Inc.and
          Combined Air Mechanical Services

Plaintiffs
          (Appellants)

and

William Flesch, WJF Investments
          Inc.,
Service
          Sheet Metal Inc., and James Searle

Defendants
          (Respondents)

J. Gardner Hodder and Guillermo
          Schible, for the appellants

Daniel F. Chitiz and Tamara Ramsey,
          for the respondents

Heard: June 21, 2011

On appeal
          from the order of Justice Edward P. Belobaba of the Superior Court of Justice
          dated April 8, 2010.

COSTS ENDORSEMENT

[1]

The parties have made
    written submissions with respect to the costs of this appeal. We have
    considered those submissions and award costs in favour of the respondents,
    fixed in the amount of $20,000 inclusive of disbursements and HST.

W.K. Winkler C.J.O.

John Laskin J.A.

Robert J. Sharpe J.A.

R.P. Armstrong J.A.

Paul Rouleau J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Global
    Learning Group Inc. v. Eskasoni First Nation, 2013 ONCA 325

DATE: 20130516

DOCKET: C56153

Rosenberg, Goudge and Tulloch JJ.A.

BETWEEN

Global Learning Group Inc.

Applicant (Respondent)

and

Eskasoni First Nation

Respondent (Appellant)

Maxime Faille, for the appellant

David Winer, for the respondent

Heard: April 29, 2013

On appeal from the judgment of Justice
Elizabeth M.

Stewart of the Superior Court of Justice, dated November 7, 2012.

Goudge
    J.A.:

[1]

The appellant is an Indian band within the meaning of the
Indian Act
,
    R.S.C. 1985, c. I-5.  The respondent provides fundraising services to clients
    such as the appellant.

[2]

On October 20, 2009, the respondent contracted with the appellant to
    solicit donations for the appellant.  The contract provided that the respondent
    would be paid a fee equal to 15 percent (including GST) of the gross amount of
    donations raised for the band in the timeframe being invoiced.

[3]

The dispute arose because the appellant, as an Indian band, is exempted
    by statute from payment of GST on services provided to it.  A service provider
    to the appellant is therefore not required to collect GST from it for remitting
    to the government.

[4]

This led to a difference between the parties on the meaning of the
    reimbursement provision in the contract, particularly including GST.

[5]

The appellant says that including GST refers to the amount for GST
    that a non-exempt client would be required to pay for equivalent services.  It
    says that this amount constitutes a deduction from the 15 percent that it is
    required to pay.  On the other hand, the respondent says that including GST
    means the GST payable on these services to this appellant, which, because of
    the exemption, is zero.

[6]

The respondent brought an application to resolve this dispute.  The
    application judge concluded that the contract was clear and unambiguous.  She
    agreed with the respondents interpretation, holding:

On its face, the contract required the Applicant to assume the
    risk and responsibility of remitting GST.  The fact that GST was determined to
    be inapplicable to the Respondent does not operate to reduce the fees to be
    paid by it or trigger a corresponding discount.

[7]

In the alternative, the application judge went on to consider the
    post-contract conduct of the parties which she viewed as supportive of the
    respondents interpretation, if one viewed the contract as ambiguous.

[8]

The appellant appeals to this court from the order of the application
    judge.  Both parties essentially reprise the arguments they made at first
    instance.

[9]

For several reasons, I would dismiss the appeal.

[10]

First,
    I do not think the words including GST can bear the meaning urged by the
    appellant.  Neither that phrase nor its contractual context refer in any way to
    the GST that a different, non-exempt client would have to pay for equivalent
    services.  Rather the phrase simply refers to the GST that this client has to
    pay for these services.  Given the appellants tax exempt status, that amount
    is zero.

[11]

Second,
    I do not think that the contested phrase including GST carries any
    implication of a discount to the appellant.  Whether the GST that a client has
    to pay is zero percent (as it is with the appellant), or five percent (as it
    would be for a non-exempt client), the contract obliges the appellant to pay a
    fee equal to 15 percent of donations, not some lesser amount.  The contract
    language clearly requires the appellant to pay a fee of 15 percent.  Moreover
    there is no suggestion in the factual context for the making of this contract,
    namely the factual matrix, that the parties contemplated that the appellants
    exemption from GST would provide it with any discount from 15 percent.

[12]

I
    would therefore conclude that the application judge was correct to find that
    the language of the contract is clear and that the respondent read it
    correctly.

[13]

It
    is therefore unnecessary to deal with the question of post-contract conduct and
    any possible ambiguity.

[14]

The
    appeal must be dismissed.

[15]

The
    parties may file written submissions on the issue of costs of no more than
    three pages within three weeks of the release of these reasons.

Released: May 16, 2013 (S.T.G.)

S.T. Goudge J.A.

I agree. M. Rosenberg J.A.

I agree. M. Tulloch J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Grant v. Saks, 2013 ONCA 334

DATE: 20130523

DOCKET: C56362

Goudge, Gillese and Pepall JJ.A.

BETWEEN

Gary Grant

Appellant

and

Uri Saks and 3780 14
th
Avenue Holdings
    Inc.

Respondents

Gary Grant, appearing in person

Heidi Rubin, for the respondents

Heard: May 22, 2013

On appeal from the judgment of Justice Susan E. Healey of
    the Superior Court of Justice, dated November 13, 2012.

APPEAL BOOK ENDORSEMENT

[1]

In our view there is no error in the reasons below.  We would therefore
    dismiss the appeal.

[2]

Costs to the respondent fixed at $2500 all in.


COURT OF APPEAL FOR ONTARIO

CITATION:
    Jubenville v. Jubenville, 2013 ONCA 302

DATE: 20130508

DOCKET: C56259

Rosenberg, Gillese and Rouleau JJ.A.

BETWEEN

Ashley Jubenville and Kelly Jubenville

Plaintiffs (Respondents)

and

Kevin Jubenville
,
    Wawanesa Mutual Insurance Company,
Superintendent of
    Financial Services and Economical Mutual Insurance Company/Economical Compagnie
    Mutuelle dAssurance

Defendants (
Appellants
)

Lauren Bloom and Jennifer
    McGlashan, for the appellant Economical Mutual Insurance Company/Economical
    Compagnie Mutuelle dAssurance

Michael Stocks, for the
    appellant Superintendent of Financial Services

Laura Pearce, for the respondents

Heard: March 20, 2013

On appeal from the order of Justice Bruce G. Thomas of
    the Superior Court of Justice dated October 15, 2012.

Rouleau
    J.A.:

OVERVIEW

[1]

This is an appeal from the motion judges finding that the respondent
    Ashley Jubenville is entitled to benefit from the uninsured motorist coverage in
    the standard automobile insurance policy issued to Kelly Jubenville by the
    appellant Economical Mutual Insurance Company (Economical).

[2]

The motion judges decision came as a result of a motion for the
    determination of a question of law in the form of a special case brought pursuant
    to rule 22.01 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194
. The question of
    law put to the motion judge was:

Was the Mercury Cougar, owned by, registered to and driven by
    Kevin Jubenville on the date of the accident an uninsured automobile as
    defined in the O.P.F. 1,
[1]
s. 265 of the
Insurance Act
and under policy number 9556129?

[3]

If the Mercury Cougar did not fall within the definition of an
    uninsured automobile, and therefore this question was answered in the
    negative, Ashley would be denied recovery under the policy. The motion judge
    held that the Mercury Cougar did qualify as an uninsured automobile, thereby entitling
    Ashley to claim pursuant to the uninsured provisions in the policy.

FACTS

[4]

The respondent Ashley Jubenville was five years old when she was injured
    in a single vehicle motor vehicle accident that occurred on May 23, 1993. At
    the time of the accident, Ashley was a passenger in a Mercury Cougar owned by,
    registered in the name of, and driven by her father, the appellant Kevin
    Jubenville.

[5]

The other respondent, Kelly Jubenville, is Ashleys mother and, on the
    day of the accident, was Kevins spouse. Kelly insured her two vehicles under a
    standard automobile insurance policy issued by the appellant Economical. Kelly
    did not insure Kevins Mercury Cougar. For the purposes of the motion, the
    parties agreed that Kevins vehicle was not otherwise insured.

[6]

Kellys insurance policy and s. 265 of the
Insurance Act
,
R.S.O. 1990, c. I.8, as amended to
    1993, contained nearly identical terms relating to uninsured automobile
    coverage.
[2]
The terms in Kellys insurance policy were as follows:

4.1

The insurer agrees to pay all sums that,

4.1.1
a person insured under the Policy
is legally entitled to recover from the owner or
    driver of an uninsured automobile or unidentified automobile as damages for
    bodily injury resulting from an accident involving an automobile;

4.2.2
    person insured under the policy
means,

(c) in respect of a
    claim for bodily injury or death,

(ii)
    the insured and his or her spouse and any dependent relative of either,

1.
    while an occupant of an uninsured automobile,  .

4.2.4
    uninsured automobile

means
    an automobile with respect to which neither the owner nor driver thereof has
    applicable and collectible bodily injury liability and property damage
    liability insurance for its ownership use or operation, but

does
    not include an automobile owned by or registered in the name of the insured or
    his or her spouse
.

[
Emphasis
added.]

[7]

Although insured is not defined in s. 265 of the
Insurance Act
or in the policy, it is defined in s. 224(1) of the
Insurance Act
, as amended to 1993,
as follows:

In this Part,  insured means a person insured by a contract whether
    named or not and includes every person who is entitled to no-fault benefits
    under the contract whether or not described therein as an insured person.
[3]

Section 265 is in the same part of the
Insurance
    Act
as s. 224.

[8]

The Rule 22 motion ultimately turned on the proper interpretation of
    the insured in the exclusionary phrase contained at the end of the definition
    of uninsured automobile in s. 4.2.4 of the policy. This phrase excludes an
    automobile owned by or registered in the name of
the
    insured
or his or her spouse (emphasis added) from being considered as an
    uninsured automobile.

[9]

If the insured in this section means either the owner of the policy (Kelly)
    or all those who are insured under the policy (which would include Kelly),
    Ashley would be denied access to coverage by the exclusionary language in the
    definition of uninsured automobile. This is because at the relevant time, Kelly,
    the insured, was the spouse of the owner of the uninsured vehicle, Kevin.

[10]

Alternatively,
    if the insured referred only to the person making the claim, in this case
    Ashley, then the automobile would qualify as an uninsured automobile and Ashley
    would be entitled to recover under the policy. This is because Ashley did not
    own the uninsured vehicle and, at five years old, had no spouse.

[11]

The
    motion judge accepted the second interpretation, i.e. that the insured
    referred to the person making the claim. As a result, he held that Kevins
    Mercury Cougar was an uninsured automobile within the meaning of Kellys policy
    and s. 265 of the
Insurance Act
and that Ashley was therefore able to claim under the policy
.

ISSUE ON APPEAL

[12]

The
    appellant submits that the motion judge erred in law when he determined that
    the Mercury Cougar, owned by, registered in the name of, and driven by Kevin on
    May 23, 1993, was an uninsured automobile as defined in Kellys policy and s.
    265 of the
Insurance Act
.

THE APPELLANTS POSITION

[13]

The
    appellant argues that in order to obtain coverage under Kellys insurance policy,
    Ashley must fulfil two requirements. First, Ashley must come within the
    definition of a person insured under the policy in s. 4.2.2(c)(ii). She must
    therefore be the insured, his or her spouse, or a dependent relative of
    either. The appellant concedes that Ashley qualifies under this first part
    because she was a dependent of Kelly, who is the insured, at the time of the
    accident.

[14]

Second,
    Ashley must have been an occupant of an uninsured automobile. However, the
    definition of an uninsured automobile in s. 4.2.4 expressly excludes an
    automobile owned by or registered in the name of the insured or his or her
    spouse. Here, Kevin owned the Mercury Cougar and it was registered in his name.
    Kevin was Kellys spouse. Because Kelly was the insured, the Mercury Cougar
    was excluded from the definition of an uninsured automobile.

[15]

In
    the appellants view, therefore, the motion judge erred in his interpretation
    of the insured in the context of a vehicle owned by or registered in the
    name of the insured or his or her spouse. The insured referred to in the
    definition of uninsured automobile in s. 4.2.4 should not, as the motion
    judge held, be restricted to only Ashley. Defining the insured as being
    limited to the person bringing the claim is a novel conclusion at law
    unsupported by the authorities and, in the appellants submission, would lead
    to an absurd result.

[16]

Even
    if a broader definition of the insured is adopted and Ashley is taken to be
    one of the insured persons under the policy, in order to find for the
    respondents, the court would still have to conclude that Kelly  the named
    insured  was not one of the insured under the policy for the purposes of s.
    4.2.4. Otherwise, the statutory exclusion will apply. The appellant argues that
    defining the insured as excluding the named insured in the policy could not have
    been intended by the drafters of the statute. The definition of the insured throughout
    the section, both in s. 4.2.2(c)(ii) and in s. 4.2.4 should be consistent and,
    at a minimum, include the named insured under the policy.

[17]

This
    interpretation is, in the appellants submission, consistent with this courts
    decisions in
Taggart (Litigation guardian
    of) v. Simmons
(2001)
,
    52 O.R. (3d) 704 (C.A.), leave to appeal to S.C.C. refused, [2001] S.C.C.A. No.
    206, and
McArdle v. Bugler
, 2007
    ONCA 659, 87 O.R. (3d) 433. In those decisions, the court determined that the
    phrase the insured as it appears in s. 4.2.2(c)(ii) was to be interpreted
    broadly and include all those who come within the definition of insured
    provided in s. 224(1) of the
Insurance Act.
The insured
    therefore includes every person who is entitled to no-fault benefits under the
    contract. As a result, the insured that appears in the definition of
    uninsured automobile must encompass the complete class of persons entitled to
    statutory accident or no-fault benefits under the Act, and not just the person
    making the claim.

[18]

Finally,
    the appellant submits that the motion judge failed to consider the complete
    contractual and statutory context of the section. Specifically, the appellant
    argues that had the legislature intended only to exclude uninsured vehicle
    owners and their spouses from coverage under the uninsured automobile provisions,
    and not other parties, it would have drafted an exclusion which depended on the
    identity of the claimant. For example, s. 4.3 of the policy does precisely
    that. It makes reference to the identity of a potentially covered person in
    relation to the qualification of a dependent relative in the following terms:

4.3
    Qualification of Dependent Relative
 Where a dependent relative referred to in section 4.2.2(c) is the
    owner of an automobile insured under a contract, or sustains bodily injury or
    dies as the result of an accident while the occupant of his or her own
    uninsured automobile, such dependent relative shall be deemed not to be a dependent
    relative for the purposes of this Part.

Therefore, the intent of the legislature is made clear
    by reference to the surrounding provisions in the statute.

ANALYSIS

[19]

In
    my view, the appeal should be dismissed and the decision of the motion judge
    upheld.

[20]

This
    courts decisions in
Taggart
and
McArdle
confirm that the
    broad definition of insured in s. 224(1) applies to s. 265. As a result, the
    reference in s. 4.2.2(c)(ii) of the policy to the insured includes
    Ashley, because she comes within the definition in s. 224.

[21]

When
    the insured is used again in the definition of uninsured automobile in s.
    4.2.4, it can have one of two meanings. It can, as the appellant submits, have
    the same meaning as it does in s. 4.2.2(c)(ii), that is, all persons coming
    within the definition of insured in s. 224. This would, at a minimum, include
    Kelly as the named insured. Alternatively, it could, as the motion judge found,
    mean only the insured person making the claim. Both interpretations are reasonable.

[22]

Given
    this ambiguity, it was open to the motion judge to turn to interpretive
    principles in ascertaining the meaning of the insured in this context. The
    conclusion he reached is, in my view, the correct one. I say so for three
    reasons.

[23]

First,
    the language of the
Insurance Act
should be interpreted harmoniously
    with the scheme and object of the Act and the intention of Parliament. As the
    motion judge noted, the purpose of the
Insurance Act
is to internalize
    the costs of driving so that they do not fall on the public purse. This
    principle militates in favour of interpreting the definition of uninsured
    automobile in a way that does not exclude dependent relatives of policy
    holders from access to insurance coverage. In
Wing v. 1198281 Ontario Ltd.
(2006), 46 C.C.L.I. (4th) 154 (Ont. S.C.), Brown J. came to a similar
    conclusion. In that case, he was interpreting a fleet policy of insurance where
    there are often many insured in the one policy. In explaining why he
    interpreted the equivalent of s. 4.2.4 in the same way as the respondents in
    this case, Brown J. stated, at para. 22, that to

reduce the number of persons covered by the uninsured
    automobile provisions of a policy, especially in cases involving fleet policies
    of insurance, and require more claimants to look to the Fund for compensation
    would run counter to the intent of the Act to internalize the costs resulting
    from injuries caused by uninsured automobiles.

[24]

Second,
    a principle of interpretation specific to insurance contracts and legislation
    is that any ambiguities in provisions governing the extent of coverage should
    be resolved in favour of the insured: see
Wigle v. Allstate Insurance Co. of
    Canada
(1984), 49 O.R. (2d) 101 (C.A.), at p. 116, leave to appeal to
    S.C.C. refused, [1985] S.C.C.A. No. 135;
July v. Neal
(1986), 57 O.R. (2d) 129 (C.A.), at p. 135
. This principle also supports
    the motion judges conclusion.

[25]

Finally,
    the motion judges decision finds support in the interests of fairness and
    public policy. Excluding an individual like Ashley from coverage leads to an
    unjust result. Ashley, at five years old, had no control over the scope of her
    parents insurance coverage. Even accepting that the goal of the exclusionary
    phrase is to prevent individuals from relying on uninsured automobile coverage instead
    of insuring each of their vehicles, such a goal would not be undermined by the
    interpretation given to the section by the motion judge. The motion judges
    interpretation makes certain that people who are responsible for insuring their
    vehicles and their spouses will be penalized for failing to insure each vehicle
    they own. This is achieved by disentitling the claimant and his or her spouse
    from any claim under the uninsured coverage whenever one or the other is the
    owner of the uninsured vehicle. Those who have no control over coverage
    decisions, such as dependent relatives, will nonetheless be entitled to make a claim.

[26]

As
    to the appellants submission that s. 4.3, Qualification of Dependent Relative,
    indicates that the legislature intended that the insured in the definition of
    uninsured automobile be given a broader interpretation, I disagree. Section
    4.3 adds little to the interpretation exercise. The fact that the legislature
    chose in s. 4.3 to specifically disqualify a dependent relative from making a
    claim where the dependent relative is the occupant of his or her own uninsured
    automobile is in fact consistent with the respondents interpretation. Had the
    legislature wished to disqualify dependent relatives who were occupants of
    uninsured automobiles owned by their parents, it would have drafted s. 4.3 to do
    so. By limiting the exclusion in s. 4.3 to dependent relatives who themselves own
    the uninsured automobile, the legislator is, by omission, indicating that
    dependent relatives who do not own the uninsured automobile should not be
    excluded.

CONCLUSION

[27]

For
    these reasons, I would dismiss the appeal. The parties have agreed that there
    should be no costs of the appeal.

Paul Rouleau J.A.

I agree M. Rosenberg
    J.A.

I agree E.E. Gillese
    J.A.

Released: May 8, 2013

[1]
O.P.F. 1 stands for Ontario Automobile Policy Form 1.

[2]
The
Insurance Act
uses the term contract in place of policy. These
    reasons will use the section numbers from the relevant insurance policy, rather
    than those found in s. 265 of the
Insurance Act.

[3]
The words no-fault benefits have since been replaced by statutory accident
    benefits.


COURT OF APPEAL FOR ONTARIO

CITATION: Kawartha
    Lakes (City) v. Ontario (Environment), 2013 ONCA 310

DATE: 20130510

DOCKET: C56382

Rosenberg, Goudge and Tulloch JJ.A.

BETWEEN

The Corporation of the City of Kawartha Lakes

Appellant

and

Director, Ministry of the Environment, Wayne
    Gendron, Liana Gendron, Doug Thompson Fuels Ltd., D.L. Services Inc., Farmers
    Mutual Insurance Company and Ian Pepper Insurance Adjusters Inc.

Respondents

Cliff Cole and Jennifer Danahy, for the appellant

Nadine Harris and Fredrika Rotter, for the respondent
    Director, Ministry of the Environment

Martin Forget, for the respondents Wayne Gendron and
    Liana Gendron

Heard: May 1, 2013

On appeal from the order of the Divisional Court (Justices
    W. Larry Whalen, Harriett E. Sachs and Thea P. Herman), dated May 28, 2012,
    dismissing the appeal from the decision of the Environmental Review Tribunal,
    dated July 16, 2010.

Goudge J.A.
:

[1]

This proceeding arises from a fuel oil spill that occurred on December
    18, 2008 on residential property owned by Mr. and Mrs. Gendron.  The Gendron
    property is adjacent to a road allowance owned by the appellant City of
    Kawartha Lakes, which is in turn adjacent to the shore of Sturgeon Lake.  The
    fuel oil was delivered to the Gendrons that day by Thompson Fuels Ltd.

[2]

Following the spill, fuel oil migrated on to the appellants property
    and into Sturgeon Lake.  As a consequence, the Ministry of the Environment (the
    MOE) ordered the appellant to remediate the adverse effects of the spill on its
    property.  The appellant appealed unsuccessfully, first to the Environment
    Review Tribunal, and then to the Divisional Court.  With leave, it now appeals
    to this court.

[3]

All parties agree that the appellant bore no responsibility for the
    spill.  The issue is whether the Tribunal erred in preventing the appellant
    from calling evidence to show who was at fault for the spill.  The Divisional
    Court found that the Tribunal was correct in doing so.

[4]

I would dismiss the appeal.  To explain why, it is necessary to describe
    the background in a little more detail.

[5]

Twelve days after the spill, on December 30, 2008, a provincial officer
    of the MOE issued an order under the
Environmental Protection Act
,
    R.S.O. C.E 19 (the Act). It ordered the Gendrons to prevent, eliminate and
    ameliorate the adverse effects of the spill.  This order was based on the
    Gendrons fault, namely their suspected violation of the Act by discharging or
    permitting the discharge of a contaminant into the natural environment.

[6]

The Gendrons commenced remediation by hiring a clean up firm, but by
    March 20, 2009, they had run out of funds and could not continue any
    remediation off site, that is on the appellants property.

[7]

Faced with this, on March 27, 2009, the MOE issued a provincial
    officers order to the appellant under s. 157.1 of the Act, to remediate the
    adverse effects of the spill on its own property.  As permitted by s. 157.1,
    this was a no fault order.  In other words, the order did not require an
    assertion by the MOE of any fault on the part of the appellant, and none was
    made.

[8]

As the Act permits, the appellant requested the respondent Director of
    the MOE to review the order.  On April 9, 2009 the Director confirmed the
    order.

[9]

The appellant appealed the Directors order to the Environmental Review
    Tribunal.  Under s. 145.2(1) of the Act, such an appeal is a hearing de novo.

[10]

The
    parties before the Tribunal included the appellant, the respondent Director,
    the Gendrons, Thompson Fuels Ltd. and the clean up firm retained by the
    Gendrons.  All parties agreed that the appellant was innocent of any wrong
    doing in connection with spill.  The appellants position was that while the
    MOE had jurisdiction to issue a s. 157.1 order against it as a property owner,
    to do so was unfair and contrary to the polluter pays principle, which
    assigns polluters the responsibility for, and the cost of, remedying the
    contamination for which they are responsible.  To make this case, the appellant
    sought to call evidence that each of the home owners, the fuel provider and/or
    the maker of the fuel tank was at fault for the spill.

[11]

The
    Gendrons moved to prohibit the appellant from calling such evidence.  In its
    procedural decision of November 20, 2009, the Tribunal found that evidence of
    who was at fault for causing the spill should not be permitted.  It held that
    no evidence of the appellants innocence was necessary, since that was agreed,
    and evidence of who was at fault was not relevant since it would be of no
    assistance to the Tribunal in deciding whether the Directors order to the
    appellant should be revoked or upheld.  The Tribunal found that although in
    some cases evidence of the conduct of others would be relevant, this was not
    such a case.  Evidence of others being at fault for the spill was simply
    irrelevant to the Tribunals task of determining whether the Acts objective of
    environmental protection meant that the Directors order should be upheld.  The
    Tribunal concluded that, despite this evidentiary ruling, in proceeding with
    its appeal, the appellant was entitled to argue that its status as an innocent
    owner together with the polluter pays principle should relieve it of the
    Directors order.

[12]

On
    the appeal itself, the Tribunal explicitly considered the issue relating to the
    polluter pays principle.  It found that if environmental work was necessary,
    the environmental protection objective of the Act takes precedence over the
    polluter pays principle.  It concluded that it was not enough for the
    appellant to rely on its status as an innocent victimized owner without
    addressing how the legislative objective of environmental protection would be
    met if the Directors order were revoked.  Since the appellant presented no
    evidence of an environmentally responsible solution in the event of revocation
    of the Directors order, the Tribunal dismissed its appeal.

[13]

The
    appellant appealed to the Divisional Court.  In reasons that are thorough and
    persuasive, the Divisional Court dismissed the appellants attack on both the
    Tribunals procedural ruling and its ultimate disposition of the appeal.

[14]

In
    addition to appealing the Tribunals order, the appellant has taken advantage
    of s. 100.1 of the Act which permits a party subject to a no fault order to
    seek to recover its costs from persons having control of the pollutant.  In
    this case, the appellant seeks recovery from the Gendrons, Thompson Fuels Ltd.
    and the Technical Standards and Safety Authority.  That proceeding has not yet
    concluded.

[15]

In
    this court, the appellant does not contest that the Director had jurisdiction
    to make her order.  Rather it says that in making the order, the Director erred
    in several ways.

[16]

First,
    it argues that in disposing of the appeal itself, the Tribunal erred in law by
    not considering the polluter pays principle.  That argument can be shortly
    disposed of.  The Tribunal explicitly considered the principle.  It did not
    decline to do so.  It is thus unnecessary to decide whether, had it declined to
    consider the polluter pays principle entirely, this would constitute legal
    error.

[17]

The
    appellant also argued that the Tribunals procedural order excluding evidence
    that others were at fault for the spill denied it natural justice and prevented
    it from fully making its case that it should be relieved of the Directors
    order because of the polluter pays principle.

[18]

Framed
    either way, I would dismiss this argument.  It turns entirely on whether the
    evidence sought to be tendered by the appellant was properly found irrelevant
    to the issue before the Tribunal.  If the evidence is irrelevant, excluding it
    does not constitute a denial of natural justice to the appellant, nor does it
    improperly limit its ability to argue that the polluter pays principle requires
    that the Directors order be revoked.

[19]

In
    this case, all agree that the appellant is innocent of any fault for the
    spill.  I agree with the Tribunal and the Divisional Court that evidence that
    others were at fault for the spill is irrelevant to whether the order against
    the appellant should be revoked.  That order is a no fault order.  It is not
    premised on a finding of fault on the part of the appellant but on the need to
    serve the environmental protection objective of the legislation.

[20]

The
    tribunal had to determine whether revoking the Directors order would serve
    that objective.  Deciding whether others are at fault for the spill is of no
    assistance in answering that question.  Evidence of the fault of others says
    nothing about how the environment would be protected and the legislative
    objective served if the Directors order were revoked.  Indeed, by inviting the
    Tribunal into a fault finding exercise, permitting the evidence might even
    impede answering the question in the timely way required by that legislative
    objective.

[21]

I
    would therefore conclude that the Tribunal correctly excluded the evidence
    proffered by the appellant.  The Divisional Court was correct to uphold the Tribunals
    procedural order.  Given this conclusion it is unnecessary to decide if that
    order ought to attract a deferential standard of review.  That issue can be
    left for another case.

[22]

In
    conclusion, I would dismiss the appeal.

[23]

As
    the parties have agreed, there will be no order of costs.

Released: May 10, 2013 (S.T.G.)

S.T. Goudge J.A.

I agree M. Rosenberg J.A.

I agree M. Tulloch J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Laushway Law Office v. Simpson, 2013
    ONCA 317

DATE: 20130510

DOCKET: M42269 (C54158)

Laskin J.A. (In Chambers)

BETWEEN

Laushway Law
    Office,
    Barry D. Laushway

Solicitors
    (Respondents/Responding Parties)

and

Robert Burton Simpson

Client
    (Appellant/Moving Party)

Robert Burton Simpson, acting in person

John J. Cardill, for the responding parties

Heard: April 12, 2013 by teleconference

On appeal from the judgment of Justice Robert N. Beaudoin
    of the Superior Court of Justice, dated July 4, 2011 and on a motion to extend
    the time to perfect the appeal.

ENDORSEMENT

[1]

The moving party, Robert Simpson, asks for an order to further extend
    the time for perfecting his appeal from the judgment of Beaudoin J. dated July
    4, 2011.  He has already been granted two lengthy extensions, one by Lang J.A.
    and one by me.

A.

background

[2]

Simpson was injured in a car accident in 1997.  Eventually he retained
    Barry Laushway of the Laushway Law Office (LLO) to represent him.  Simpson and
    LLO entered into a contingency fee agreement under which LLO was to be paid
    legal fees equal to 30 per cent of any recovery.

[3]

In November 2007, Simpsons claim was settled at a pre-trial conference
    for $750,000 plus disbursements.  After some adjustments to settle the claims
    of ODSP and Ontario Works, Simpson received the net amount of $516,473.64, and
    LLO received a net fee of $138,456.24.  The fee has been paid, and subject to
    these proceedings, LLO has the funds.

[4]

Simpson then challenged the enforceability of the contingency fee
    agreement.  In November 2008, McLeod-Beliveau J. ordered a hearing of that
    issue.   Shortly after, Barry Laushway died.

[5]

Simpson did not initially proceed to a hearing.  Instead, in June 2009,
    he brought an application for a declaration that the contingency fee agreement
    was void.  Power J. dismissed the application on the condition that Simpson had
    the right to raise the enforceability of the agreement at a hearing as directed
    by McLeod-Beliveau J.

[6]

The hearing took place before Beaudoin J.  It began in February 2010, took
    seven days, and ended in December 2010.  Mr. Laushways evidence went in by
    affidavit.  Numerous other witnesses, including Simpson, gave oral testimony.  Beaudoin
    J. delivered lengthy reasons on July 4, 2011 (see 2011 ONSC 4155), in which he
    found that the contingency fee agreement was enforceable.  Alternatively, he
    would have upheld the amount claimed on a quantum meruit basis.

B.

the appeal

[7]

Simpson has appealed the judgment of Beaudoin J.  He is representing
    himself.  Although he is a trained lawyer, he has not practised for many
    years.

[8]

Simpson has had all of the transcripts necessary to perfect his appeal
    since March 21, 2012.  The parties originally agreed on a perfection date of
    May 22, 2012.  Shortly before that date, Simpson indicated that his ill health
    prevented him from meeting the May 22 deadline.  He sought an extension of
    time.

(a)

The extension granted by Lang J.A.

[9]

On June 20, 2012, Lang J.A. granted Simpson an extension of time to
    perfect his appeal until November 15, 2012.  In her endorsement, she noted:

As a result of the accident and perhaps other causes Simpson
    has health considerations that require accommodation.  He has filed material
    that he is able to focus for a few hours a day at intervals.

Although I have granted this lengthy extension of time, I
    observe that Mr. Simpson has a draft factum on the law that was prepared for
    him.  His primary effort will be to write the facts portion of the factum in a
    concise manner.

(b)

The extension granted by me

[10]

Simpson
    had still not perfected his appeal by November 15.  He sought a further
    adjournment.  On December 5, 2012, I extended the time for perfecting his
    appeal to March 11, 2013.  I added that if it was not perfected by that date
    then, subject to any further order of the court, it would be dismissed for
    delay.

(c)

This motion

[11]

Simpson
    did not comply with the March 11 deadline.  Instead, he has asked for yet another
    lengthy extension.  And he has coupled this request with requests that the
    court issue summons to two witnesses and that the Attorney General intervene on
    this appeal.  The two witnesses are his former work supervisor and an expert
    on the financial impact of the accident on his ESL business.  He asks for the
    Attorney Generals intervention on the issue of chronic pain.

C.

discussion

[12]

In
    deciding whether to extend the time for appealing, a motion judge typically
    takes into account the following five factors:

1.

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

2.       The length of the
    delay;

3.       The appellants
    explanation for the delay;

4.       The merits of the
    appeal; and

5.       Any prejudice to the
    respondent.

[13]

In
    taking into account these five factors, the overriding question is whether the justice
    of the case warrants an extension:  see
Issasi v. Rosenzweig
, 2011
    ONCA 112, at para. 4.  For reasons that I will discuss, I am not persuaded that
    a further extension is warranted.

(1)

Whether Simpson formed an intention to appeal within the relevant period

[14]

Simpson
    filed his notice of appeal on time.

(2)

The length of the delay

[15]

The
    delay has been lengthy.  Simpson has already received two long extensions.
    Indeed, nearly a year has passed since he first agreed to perfect his appeal.
    I accept that his health requires some accommodation, but as Lang J.A. noted
    last June, over 10 months ago, the law section of his factum has already been
    prepared.  Moreover, he has had no trouble in preparing lengthy affidavits and
    arguments in support of his various requests for further time.  I can only
    conclude that, for whatever reasons, he simply does not wish to perfect his
    appeal  he would rather keep it in a state of limbo than perfect it and go to
    a hearing.

(3)

The explanation for the delay

[16]

I
    am not persuaded that Simpson has satisfactorily explained his lengthy delay.
    I have not been provided with any medical evidence that would support a further
    lengthy extension.  I give no weight to the request for the two summons or for
    the intervention of the Attorney General.  These are just delaying tactics.
    The two witnesses could have testified before Beaudoin J. if their evidence had
    any relevance, and I have been given no reason why they did not do so.  The
    issue of chronic pain is a familiar issue to the courts.  It is hardly an issue
    that requires the intervention of the Attorney General.

(4)

The merits of the appeal

[17]

Simpson
    has not shown any merit in his proposed appeal.  The reasons of Beaudoin J. are
    thorough and appear to be well reasoned.  Although he found that the
    contingency fee agreement was enforceable, even if it was not enforceable, he
    also found that the fee received by LLO was fully justified on a quantum meruit
    basis.  Simpsons general and conclusory contentions at paragraph 8 of his
    notice of motion do not raise any arguable ground of appeal arising from
    Beaudoin J.s reasons.

(5)

Prejudice to the respondent

[18]

LLO
    would not be prejudiced by a further extension in the sense that it has already
    received its fee.  However, it is prejudiced in the sense that these
    proceedings continue to be outstanding and have not been brought to a timely
    conclusion.  Finality is an important value in our justice system.  When an
    appeal is not pursued with reasonable diligence, a respondent is justified in
    asking the court to dismiss the appeal for delay.  Simpson has had 13 and a
    half months to perfect his apepal since he received the transcripts of the
    hearing before Beaudoin J.  He has not done so despite two lengthy extensions
    of time.  He has not pursued his appeal with reasonable diligence. My previous
    endorsement gave him ample warning that he risked having his appeal dismissed
    if he did not perfect it.  The respondents interest in finality is a further
    reason why Simpson is not entitled to yet another extension.

[19]

For
    these reasons, the justice of the case does not warrant a further extension of
    time to perfect the appeal.  The motion is dismissed.  The parties may make
    written submissions on the costs of the motion.

John Laskin J.A.