COURT OF APPEAL FOR ONTARIO

CITATION: Volk v. Volk, 2020 ONCA 256

DATE: 20200414

DOCKET: M51430 (C67918)

Paciocco J.A. (Motion Judge)

BETWEEN

George Volk

Applicant (Respondent/Moving Party)

and

Doris Volk,
Darlene Mussato
,
    Lisa Volk,
Felicia Mussato
and Public Guardian and Trustee

Respondents (
Appellants/Responding Parties
)

Ellen Ann Brohm, for the moving party

Jerry W. Switzer, for the responding
    parties

Heard: April 14, 2020

REASONS FOR DECISION

[1]

Litigation under the
Substitute Decisions
    Act
,
1992
, S.O. 1992, c. 30, is underway relating to the property
    of Doris Volk, who is not competent to handle her legal affairs. Included in
    the dispute is real property registered in the name of Doris Volk (1%) and her
    granddaughter, Felicia Kowalski (n
é
e Mussato) (99%), as tenants-in-common (the home). The home is
    currently occupied by Doris Volks daughter, Darlene Mussato, who is Felicia
    Kowalskis mother.

[2]

George Volk, Doris Volks husband, instituted
    the action by application claiming that Darlene Mussato, a co-attorney of Doris
    Volks property along with her sister Lisa Volk, abused her power of attorney in
    order to enrich herself and her daughter, Felicia Mussato, and that property of
    Doris Volk was improperly disbursed to Darlene Mussato and Lisa Volk. George
    Volk contends that the considerable, ongoing expenses relating to the operation
    and maintenance of the home are being paid for with Doris Volks money, in further
    breach of trust.

[3]

On January 7, 2020, George Volk brought an interlocutory
    application for an order freezing various assets, ordering the transfer of
    other assets into the name of George Volk in trust for Doris Volk, and
    providing for the sale of the home, with the deposit of the proceeds to be paid
    to George Volk in trust for Doris Volk. The respondent to the application, Lisa
    Volk, consented to the order. The respondents Darlene Mussato, Felicia Kowalski
    and the Public Guardian and Trustee, did not appear or file opposing materials.
    The order was granted. Pursuant to that order, an agreement of purchase and
    sale has since been entered relating to the home, with a closing date of May
    16, 2020. This agreement of purchase and sale gives the stay motion added
    urgency.

[4]

Darlene Mussato and Felicia Kowalksi are now
    appealing the order of January 7, 2020, in appeal C67918. Included in the
    grounds of appeal is that the order was made in the absence of Darlene Mussato
    and Felicia Kowalski, who were not properly served or provided with adequate
    notice of the application.

[5]

Darlene Mussato and Felicia Kowalski now bring a
    motion before this court, M51316, to stay the order of January 7, 2020,
    relating to the sale of the home. Filed in support of that stay motion is an
    affidavit of Felicia Kowalski, dated February 3, 2020.

[6]

On February 26, 2020, Felicia Kowalski was
    cross-examined on her affidavit of February 3, 2020. On the advice of counsel,
    she refused to answer several of the questions, and an undertaking that was
    provided has yet to be answered. As a result, George Volk brought a refusals
    motion, seeking to compel the refused questions and the undertaking to be
    answered, either through further cross-examination or in writing. George Volk
    has also requested the adjournment of the stay motion brought by Darlene
    Mussato and Felicia Kowalksi, contending that the refusals by Felicia Kowalski
    have prejudiced his ability to respond to the stay motion.

[7]

Both the refusals motion and the stay motion
    were scheduled to be heard before me on April 14, 2020. I heard the refusals
    motion and the adjournment application relating to the stay motion during a hearing
    in which counsel for Darlene Mussato and Felicia Kowalksi attended by teleconference
    and counsel for George Volk attended by videoconference. At the completion of
    the hearing I advised the parties that I would be granting the refusals motion
    in part, adjourning the stay motion, and establishing a timetable for
    compliance with this order and for the hearing of the stay motion. I ordered
    that Felicia Kowalski is to provide answers in writing to the questions I
    identify within seven (7) days of the receipt of my written decision, as well
    as related orders. This is the written decision and the timetable I am ordering.

[8]

The refused questions and undertaking can be
    grouped thematically, using the question numbers employed in the Chart of
    Refusals and Undertakings found at pp. 12-19 of George Volks Motion Record,
    filed in motion M51430, dated March 7, 2020, as follows:

(a)

Questions pertaining to the non-attendance of
    Darlene Mussato and Felicia Kowalski at the January 7, 2020 application:
    Questions 7,8,11,43,44,45, 47;

(b)

Questions pertaining to the use of funds
    provided by Doris Volk: Questions 12, 13, 40;

(c)

Question pertaining to the operation/ownership
    of the hairdressing business: Question 39;

(d)

Questions pertaining to utility payments:
    Question 76;

(e)

The undertaking pertaining to Doris Volks
    contribution to the property: Question 156;

(f)

Questions pertaining to other gifts from Doris Volk
    to Felicia Kowalski: Question 12, 13;

(g)

Question relating to other support and help
    Felicia Kowalski provided to Doris Volk: Question 167;

(h)

Questions relating to Doriss state of mind or
    actions: Question 111, 164; and

(i)

Questions seeking undertakings relating to
    future use of the property: Question 159, 160, 161.

[9]

On the advice of counsel, Felicia Kowalski
    refused to answer these questions because, in counsels view, they did not fall
    within the four corners of Felicia Kowalskis affidavit. Felicia Kowalskis
    conception of the questions that need to be answered when an affiant is being
    cross-examined on an affidavit in support of a motion is unreasonably narrow
    and wrong in law.

[10]

As Borins J. noted in
Moyle v. Palmerston
    Police Services Board
, [1995] O.J. No. 627 (Div. Ct.), at para. 11, the
    nature of the relief sought on an interlocutory motion often plays a
    significant role in determining the proper scope of cross-examination. This is
    because the cross-examination is meant to serve the fact-finding needs that the
    motion requires. Accordingly, as Borins J. affirmed, quoting Gale J. from
Thomson
    v. Thomson
, [1948] O.W.N 137 (H.C.) at 138, a person cross-examining on an
    affidavit is not confined to the four corners of the affidavit but may
    cross-examine on matters that are relevant to the issue in respect of which the
    affidavit was filed. Therefore, although the cross-examiner is not free to
    cross-examine on all matters that touch upon the underlying action, if the
    cross-examiner has a bona fide intention to direct questions to the issues
    relevant to the resolution of the motion and those questions are fair, the
    question should be answered, not refused. This includes questions relevant to
    credibility determinations that are within the competence of the motion judge,
    which would include questions intended to expose errors, omissions,
    inconsistencies, exaggerations or improbabilities of the deponents testimony
    contained in his or her affidavit:
Moyle
, at para. 14.

[11]

The motion in this case is for the stay of an
    order to preserve the disputed asset. A motion for a stay pending appeal engages
    the same general legal standards from
RJR-MacDonald Inc. v. Canada (Attorney
    General)
, [1994] 1 S.C.R. 311, which are

employed in granting
    interlocutory injunctions, namely, consideration of whether the appeal raises a
    serious issue, whether the applicant will suffer irreparable harm if the stay
    is not granted, and the balance of convenience: see
Buccilli v. Pillitteri
,
    [2013] O.J. No. 6110 (C.A.), at para. 34 (Gillese J.A., in Chambers). In
Moyle
,
    Borins J. noted that because of the nature of the discretionary remedy to grant
    in interlocutory injunction, the scope of cross-examination for such motions is
    apt to be broader than in respect of many motions for other remedies: at para.
    18. The same is necessarily true of motions for a stay pending appeal.

[12]

I would therefore order Felicia Kowalski to
    answer, in writing, the questions listed above in (a), (b), (c), (d), and the
    undertaking in (e), for the following reasons.

[13]

The questions related to topic (a), the
    non-attendance of Darlene Mussato and Felicia Kowalski, are relevant to the
    seriousness of the issues to be tried, given that Darlene Mussato and Felicia
    Kowalski seek to rely in their appeal on their absence from the January 7, 2020
    application hearing where the disputed order was made.

[14]

Questions related to topic (b) are relevant to
    the use of Doris Volks funds, which use is relevant to Felicia Kowalksis
    description of the use of funds set out in her affidavit, and to the balance of
    convenience in granting the stay sought.

[15]

Question (c) is relevant to the claim made by
    Felicia Kowalski in her affidavit that she has a small hair salon business
    which she operates from the home.

[16]

Question (d), relating to the utilities payments,
    is relevant to the claim made by Felicia Kowalski in her affidavit that she
    paid for the utilities and upkeep of the home.

[17]

The undertaking in (e) was provided and should
    be answered. I do not accept Felicia Kowalskis position, taken through her
    counsel, that this undertaking can be answered later as part of the responding
    materials in the application. This undertaking was furnished during the
    cross-examination on the affidavit filed in support of the motion for a stay and
    the information is relevant to the seriousness of the issue to be tried, and to
    the balance of convenience in determining whether the stay should be granted.

[18]

I would not order questions (f) and (g) to be
    answered. They do not relate to the issues raised in the motion. I recognize
    that the answers provided to question (f) could raise questions about the
    plausibility of some of the facts represented in Felicia Kowalskis affidavit, but
    this is not the kind of credibility factor a motion judge could properly
    consider during a stay motion, as described in para. 10 of these Reasons for
    Decision.

[19]

I would not order questions (h) or (i) to be
    answered. The questions in (h) relating to what Doris Volk could have done were
    unfair to Felicia Kowalski, who is not poised to speak to other steps Doris
    Volk could have taken in accomplishing her goals. The questions in (i) are
    irrelevant and unfair. Felicia Kowalskis position is that she has done nothing
    wrong. There is no reason for her to give the kinds of undertakings sought in
    those questions.

[20]

As counsel for George Volk recognizes, it is not
    feasible in the current COVID-19 crisis to order the parties to reconvene for
    cross-examination. I therefore direct that the erroneous refusals are to be
    remedied, in the following manner, and on the following schedule:

(1)

Questions
    (a), (b), (c) and (d) are to be answered in writing by Felicia Kowalski, with
    the answers delivered electronically to counsel for George Volk, by 10:00 a.m.
    on April 22, 2020;

(2)

Counsel
    for George Volk may deliver follow-up questions arising from the answers to
    questions (a), (b), (c) and (d), in writing to counsel for Felicia Kowalski by
    electronic transmission by 10:00 a.m. on April 24, 2020;

(3)

Unless the
    information being sought is privileged or otherwise protected by law, Felicia
    Kowalski will answer in writing any and all follow-up questions received by her
    counsel according to paragraph (2) above, by electronic transmission by 10:00
    a.m. on April 28, 2020, along with the undertaken information described above
    in question (e) at para. 8 of these Reasons for Decision. Disputes about the
    propriety of the answered questions shall be resolved by the motion judge hearing
    the stay motion. If those questions prove to have been improper the motion
    judge can disregard the answers as inadmissible;

(4)

George
    Volk may serve and file an amended factum relating to the stay motion
    incorporating information arising from paragraphs (1) and (3) above, by joint
    electronic transmission to counsel for Felicia Kowalski, and the court, by
    10:00 a.m. on May 1, 2020. No further proof of service shall be required.

(5)

George
    Volk shall serve and file electronic copies of the answers, follow-up
    questions, answers to follow-up questions, and the response to the undertaking
    described in paragraphs (1), (2), and (3) above, by joint electronic
    transmission to counsel for Felicia Kowalski and to the court, by 10:00 a.m. on
    May 1, 2020. No further proof of service shall be required.

(6)

The stay
    motion, M51316 shall be adjourned to May 6, 2020, peremptory on Darlene Mussato
    and Felicia Kowalski. The parties shall confirm in advance whether the motion
    will be heard in person, or electronically, and shall be responsible for ensuring
    that proper arrangements have been made for their attendance.

[21]

Costs in this motion are reserved to the motion
    judge hearing the stay motion. If the stay motion is abandoned, costs will be
    reserved to the panel hearing the appeal. If the appeal is abandoned, the
    parties may bring a costs application before me in writing, not to exceed 3
    pages in length plus supporting bills of costs, within 10 days of the notice of
    abandonment of the appeal being filed.

David
    M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: 2222868 Ontario Inc. v. Grimsby
    (Town), 2020 ONCA 376

DATE: 20200612

DOCKET: C67759

Pepall, van Rensburg and
    Paciocco JJ.A.

BETWEEN

2222868 Ontario Inc.

Applicant (Respondent)

and

The Corporation of the Town of
    Grimsby

Respondent (Appellant)

R. Andrew Biggart, for the appellant

Scott Snider and Shelley Kaufman, for the respondent

Heard: April 28, 2020 by video conference

On appeal from the judgment of Justice Meredith
    Donohue of the Superior Court of Justice, dated November 4, 2019.

Pepall J.A.:

INTRODUCTION

[1]

This appeal concerns the interpretation of a municipal by-law, and in
    particular, the Town of Grimsby Zoning By-law 14-45 (the By-law).

[2]

The respondent, 2222868 Ontario Inc. (2222), purchased a 119-acre
    property (the property) located in the Town of Grimsby on March 30, 2018,
    after reviewing zoning and permitted uses. The property is adjacent to a
    private regional airport that is on the same parcel of land as that of 2222.

[3]

2222 proposed to operate a works yard to store construction machinery
    for a private company. It unsuccessfully applied for site plan approval to
    permit a Works Yard, as that term is defined in the By-law, on part of its
    property. It maintained that its proposed Works Yard was a permitted use in the
    Zone designated as the Utility Zone in the By-law. The appellant, the Town of
    Grimsby (the Town), took the position that the proposed use did not comply
    with its By-law, stating: the use of the subject lands for a works yard for a
    private company which does not deliver a public or quasi-public utility is not
    intended in the terminology contained in either the Zoning By-law or the
    Official Plan.

[4]

2222 brought an application for a determination that a private Works
    Yard is included as a permitted use in the By-law.

[5]

The application judge granted the application and subsequently ordered
    costs of $40,000 on a partial indemnity scale in favour of 2222. The Town
    appeals.

[6]

For the reasons that follow, I would dismiss the
    appeal. The application judge correctly concluded that the By-law permits the
    use proposed by 2222
.

FACTS

(1)

The By-law

[7]

The Town passed the By-law on May 20, 2014. The By-law states that it is
    in conformity with the Official Plan of the Town that was approved by the
    Ontario Municipal Board under the
Planning Act
,
    R.S.O. 1990, c. P.13. The stated purpose of the By-law is to regulate the use
    of land, buildings and structures, to regulate the construction and alteration
    of buildings and structures, and to implement the policies of the Towns
    Official Plan.

[8]

The By-law creates numerous Zones, three of which are Employment Zones:
    the General Employment Zone; the Prestige Employment Zone; and, at issue in
    this appeal, the Utility Zone. Utility is not a defined term in the By-law.

[9]

Section 10 of the By-law describes the permitted uses within each Employment
    Zone. The Utility Zone has four permitted uses: Airport; Utility Corridor;
    Water and Sewage Treatment, Pumping and Storage Facility; and Works Yard.

[10]

Works
    Yard is defined as a facility for the storage and repair of machinery,
    vehicles and equipment.

[11]

The
    By-law provides that where a use is defined, it shall not be interpreted to
    include any other defined use unless it is stated in the definition to the
    contrary: s. 2.5.7. Italicized words in the By-law are to provide clarity and
    to ensure that the By-law and its intent are applied consistently.

[12]

Some
    permitted uses have qualifications. For example, in the Prestige Employment
    Zone, Professional and Administrative Office is a permitted use but Restaurant
    is noted as an Accessory use to that Office use. Accessory use is defined in
    the By-law as a
use
naturally and normally incidental to, subordinate
    to or exclusively devoted to a principal
use
and located on the same
lot
.

[13]

No
    Accessory uses are identified in the Utility Zone. Accordingly, Works Yard is a
    stand-alone use. A Works Yard Permitted Use is not found elsewhere in the
    By-law.

(2)

The Official Plan

[14]

The
    Towns Official Plan received final approval on May 12, 2012. Pursuant to s.
    24(1) of the
Planning Act
, no by-law shall be
    passed that does not conform to an Official Plan that is in effect.

[15]

Pursuant
    to s. 24(4) of the
Planning Act
,
    zoning by-laws are deemed conclusively to conform with an Official Plan where
    there is no outstanding appeal or appeal periods applicable to the relevant
    provisions.

[16]

In
    this case, neither party suggested that there is any outstanding appeal or
    appeal periods relating to the Towns Official Plan.

[17]

2222s property is located in the Utility Area designation of
    the Towns Official Plan. Utility is defined in the Official Plan as all
    public and/or private utilities, including but not limited to licensed
    broadcasting,a water supply, storm or sanitary sewageor any other similar
    works or systems necessary to the public interest.

[18]

Section
    3.9 of the Official Plan describes the Intent, Objectives and Permitted
    Uses of the Utility Area.

[19]

Under
    the heading Intent, the Official Plan states that the Utility Area recognizes
    the existing water treatment plant and pollution control plant and other public
    and private utilities. The Objective is to ensure that utilities are located
    in a manner that maximizes their performance while limiting any land use
    incompatibilities. Lastly, the Permitted Uses within the Utility Area
    designation shall
include

[p]ublic and quasi-public
utility

uses of Town-wide or regional significance including
    existing sewage and water treatment facilities, existing pumping stations,
    airport use, and transmission towers (underline emphasis added).

[20]

As
    the application judge observed, the Official Plan uses language of inclusion in
    the Permitted Uses designation, not prohibition.

[21]

The
    Town states that as a portion of the parcel of land was used for a regional
    airport, 2222s property was designated as a Utility Area in the Official
    Plan.

(3)

The Provincial Policy Statement and the Greenbelt Plan

[22]

Pursuant
    to s. 3 of the
Planning Act
, the Province may
    issue Policy Statements on municipal planning. The Provincial Policy Statement
    states that the Official Plan is the most important vehicle for implementation
    of the Provincial Policy Statement.
Decisions of the
    municipal council shall be consistent with the Policy Statements.

[23]

According
    to the appellant, the Provincial Policy Statement addresses the provincial
    interest in transportation and infrastructure corridors. An airport is treated
    as infrastructure, which also includes transit and transportation corridors and
    facilities. Planning authorities are to plan for and protect corridors and
    rights-of-way for infrastructure, including transportation, transit and
    electricity generation facilities, and transmission systems to meet current and
    future needs. According to the Provincial Policy Statement: Planning
    authorities shall not permit
development
in
planned corridors
that could preclude or negatively
    affect the use of the corridor for the purpose(s) for which it was identified and
    Planning for land uses in the vicinity of
airports
shall
    be undertaken so that:their long-term operation and economic role is protected

[24]

The
    Ontario Government has established a Greenbelt Area for which it has a
    Greenbelt Plan. Pursuant to s. 7 of the
Greenbelt Act
,
2005
, S.O. 2005, c.1, a decision made under the
Planning
    Act
or in relation to a prescribed matter by a municipal council
    shall conform with the Greenbelt Plan and no municipality shall pass a by-law
    that conflicts with the Greenbelt Plan.

[25]

The
    Town states that 2222s lands are located in a Specialty Crop Area within the
    Protected Countryside designation under the Greenbelt Plan, and that with
    certain permitted exceptions such as Infrastructure, a Specialty Crop Area is
    for agricultural use.

APPLICATION JUDGES REASONS

[26]

As
    mentioned, the application judge granted 2222s application and declared that a
    private works yard is a permitted use for the Utility Zone in the By-law. She
    rejected the Towns argument that use must support or be limited to a
    utility.

[27]

The
    application judge considered the contents of the Official Plan and went on to
    note that it speaks of what shall be included in Utility Areas, but does not
    prohibit non-public or quasi-public uses. Moreover, there was no evidence or
    argument that the proposed construction equipment storage use is incompatible
    with the land use objectives. She noted that permitted use does not take its
    context from the name of the zone. For example, Agricultural use is permitted
    in the Prestige Employment Zone.

[28]

Importantly,
    the Town failed to link all uses in the Utility Zone to public or quasi-public
    uses, which it could have done with a qualification or an accessory use
    designation, as seen elsewhere in the zoning tables included in the By-law. The
    application judge concluded that the Towns proposed narrow public uses
    interpretation was not intended; the By-law was unambiguous and clearly-stated.
    As such, there was no need to consult the Provincial Policy Statement or the
    Greenbelt Plan.

[29]

The
    application judge applied this courts decision in
St. Mary's Cement Inc. (Canada) v. Clarington (Municipality)
, 2012 ONCA 884, 299 O.A.C. 357,
at
    para. 17:

The modern principles of statutory
    interpretation apply equally to the interpretation of a municipal by-law and a
    statute [citation omitted]. Thus, the interpretation of a by-law involves
    consideration of the text of the by-law, the intent of municipal council, and
    the purpose and scheme of the by-law as a whole

[30]

The
    application judge concluded her analysis as follows:

The plain language of the by-law permits the use sought by the
    applicant. The by-law did not qualify the use to be for a public purpose. The
    by-law defined Works Yard without any restriction to a public use. The zone
    has already permitted a private airport to operate within the zone. There is no
    suggestion of the proposed use being incompatible.

GROUNDS OF APPEAL

[31]

The
    Town submits that the application judge erred:

a)

in her interpretation of the By-law by permitting a private Works Yard that
    is not in any way related to a Utility use, notwithstanding:

i.

that the lands are designated in the Official Plan as Utility Areas
    and are zoned Utility

in the Towns By-law consistent with the
    Official Plan;

ii.

the context which includes consideration of the Official Plan and the
    permitted uses in the Utility Zone; and

iii.

the applicable statutory and policy regime, which includes the
    Provincial Policy Statement and the Greenbelt Plan; and

b)

in considering compatibility of land use as part of her assessment.

ANALYSIS

[32]

It
    is helpful to first set forth the legal principles applicable to the
    interpretation of a by-law.

·

The interpretation of a by-law is a question of law, reviewable
    on a correctness standard:
Sarnia (City) v. River City
    Vineyard Christian Fellowship of Sarnia
, 2015 ONCA 494, 336 O.A.C.
    373, at para. 22.

·

A zoning by-law is the end-product in law of the planning process
    legislated by
the
Planning Act
:
Rotstein v. Oro-Medonte (Township)
,
    2002 CarswellOnt 4411 (S.C.), at para. 22.

·

The modern principles of statutory interpretation apply equally
    to the interpretation of a municipal by-law and statute. Thus, the
    interpretation of a by-law involves consideration of the text of the by-law,
    the intent of municipal council, and the purpose and scheme of the by-law as a
    whole:
Clarington
, at para. 17.

·

Official Plans are not statutes:
Bele
    Himmell Investments Ltd. v. Mississauga (City)
, 1982 CarswellOnt
    1946 (Div. Ct.), at para. 22. The purpose of an Official Plan is to set out a
    framework of goals, objectives and policies. It establishes the broad
    principles that are to govern the municipalitys land use planning generally:
Goldlist Properties Inc. v. Toronto (City)
, 232 D.L.R. (4th) 298 (Ont. C.A.)
,
    at para. 49.

·

As by-laws are the means by which Official Plans are implemented,
    the terms of an Official Plan aid in the contextual interpretation of the
    by-law:
Clarington
,
at para. 21.

·

Under the

Building Code Act
, 1992
, S.O. 1992, c. 23,

an
    applicant for a building permit must be in compliance with the applicable
    By-law. Unambiguous by-laws provide clarity to the Chief Building Official and
    to a landowner.

[33]

In
    this case, the application judge identified and applied the correct test. She
    examined the Zone and the Permitted Uses contained in the By-law. Works Yard
    was specifically and unambiguously defined in the By-law. A Works Yard was
    identified as a separate Permitted Use and not as an Accessory Use. Had the
    Town intended to link Works Yard to utility use or to public or quasi-public
    uses, it could have done so by including a Qualification or Accessory use
    designation in the By-law as it did for other uses. Instead, the Town opted not
    to do so.

[34]

Furthermore,
    the name of a Zone did not dictate a Permitted Use; this was not the scheme of
    the By-law. For example, as the application judge observed, Agricultural Use
    was permitted in the Prestige Employment Zone.

[35]

As
    mentioned, under the
Planning Act
, zoning
    by-laws are deemed conclusively to conform with an Official Plan in the absence
    of an appeal or appeal period applicable to the relevant provision. Neither
    party in this case suggested that there was an outstanding appeal or appeal
    period. The application judge nonetheless did consider the Official Plan in her
    interpretation of the By-law. She fairly reasoned that it used language of
    inclusion rather than prohibition within the Permitted Uses designation of the
    Utility area. In addition, she noted that the objective of the designation in
    the Official Plan was to ensure that Utilities are located in a manner that
    maximizes their performance while limiting land use incompatibilities. A Works
    Yard was compatible with the uses enumerated in the Utility Area designation of
    the Official Plan.

[36]

In
    these circumstances, I need not comment further on the Provincial Policy
    Statement or the Greenbelt Plan. I would note, however, that the appellant was
    unable to direct the court to any authority reflecting a requirement to have
    recourse to these documents when interpreting a by-law. Furthermore, in oral
    argument, the appellant acknowledged that while it was open to the application
    judge to look at these documents, she was not required to do so.

[37]

I
    would also note that, as mentioned, Works Yard is not found as a Permitted Use elsewhere
    in the By-law. If one were to accept the appellants proposed interpretation, a
    Works Yard unconnected to a utility would be prohibited anywhere in the Town,
    surely an unintended result.

[38]

In
    conclusion, the interpretation of Works Yard in the By-law permitted the use
    advocated by the respondent.

[39]

Lastly,
    I see no error in the application judges statement that there was no evidence
    or argument that the proposed land use of storing construction equipment was in
    any way incompatible with the land use objectives. This was not the drawing of
    an adverse inference; it was simply a statement of fact.

DISPOSITION

[40]

For
    these reasons, I would dismiss the appeal with costs of the appeal fixed in the
    amount of $21,700 on a partial indemnity scale inclusive of disbursements and
    applicable tax to be paid by the Town to the respondent.

[41]

I see no basis on which to interfere with the application judges
    discretionary award of $40,000 in favour of the respondent for costs of the
    application.

Released: June 12, 2020

S.E.P.

S.E. Pepall
    J.A.

I agree. K.
    van Rensburg J.A.

I agree.
    David M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: 4352238 Canada Inc. v. SNC-Lavalin
    Group Inc., 2020 ONCA 303

DATE: 20200513

DOCKET: C67394

Roberts J.A. (Case Management
    Judge)

BETWEEN

4352238 Canada Inc.

Applicant (Appellant)

and

SNC-Lavalin Group Inc.,
    SNC-Lavalin Inc., SNC-Lavalin Highway Holdings Inc., 7577702 Canada Inc., and MICI
    Inc.

Respondents (Respondents)

Mark A. Gelowitz, Allan D. Coleman and
    Lia Bruschetta, for the appellant

Linda Fuerst and Fahad Siddiqui, for
    the respondents SNC-Lavalin Group Inc., SNC-Lavalin Inc. and SNC-Lavalin
    Highway Holdings Inc.

Eliot N. Kolers and Alexander Rose, for
    the respondents 7577702 Canada Inc. and MICI Inc.

Heard: May 8, 2020 by teleconference

REASONS FOR DECISION

A.

Overview

[1]

This appeal was scheduled to be heard on April
    16, 2020, but was adjourned
sine die
due to the COVID-19 pandemic
    emergency. The parties appeared before me for a case management conference to
    determine how this matter will proceed. The appellant objected to the appeal
    proceeding in writing, as suggested by the respondents. It argued that this
    court would not have jurisdiction to hear an appeal in writing over a partys
    objection. I disagree. For the following reasons, this matter will proceed in
    writing.

B.

Analysis

(1)

This Court Has Jurisdiction to Order a Civil
    Appeal Heard in Writing

[2]

The appellant
submitted that this court has
    limited supervisory jurisdiction over its own process, restricted to governing
    administrative details, and cannot order an appeal be heard in writing over the
    objection of one of the parties to the appeal. This, according to appellant,
    would run contrary to the provisions of the
Courts of
    Justice Act
, R.S.O. 1990, c. C.43,
and the
Rules of Civil Procedure
,
R.R.O. 1990,
    Reg. 194,
which mandate an oral hearing of a civil appeal unless the
    parties consent to an appeal in writing.

[3]

I do not accept these submissions.

[4]

It is well settled that this courts implicit or ancillary jurisdiction
    to manage its own process is broad. This court has the jurisdiction to make any
    procedural order to prevent an abuse of process or to ensure the just and
    efficient administration of justice: see
R. v. Anderson
, 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 58;
R. v. Cunningham
,
    2010 SCC 10, [2010] 1 S.C.R. 331, at paras. 18,
19;
Marché
    D'Alimentation Denis Thériault Ltée v. Giant Tiger Stores Ltd.
, 2007 ONCA
    695, 87 O.R. (3d) 660, at para.
24.
The courts
    implicit powers include those that are reasonably necessary to accomplish the
    courts mandate and perform its intended functions: see
R. v. 974649
    Ontario Inc.
, 2001 SCC 81, [2001] 3 S.C.R. 575, at para. 70. They arise by
    necessary implication even in the absence of express statutory or common law
    authority: see
Cunningham
, at para. 19; see also
Pierre v.

McRae
,
    2011 ONCA 187, 104 O.R. (3d) 321, at paras. 30-42.

[5]

The exercise of the courts jurisdiction to manage its own process by
    directing that some appeals proceed on the written record is not inconsistent
    with any provision of the
Courts of Justice Act
or the
Rules of Civil Procedure
, which, in any
    event, do not mandate the absolute right to an oral hearing of an appeal.
The
Courts of Justice Act
prescribes the composition of the
    Court of Appeal, but not the mode of hearings.
And, while oral hearings
    are contemplated, the
Rules of Civil Procedure
do not explicitly direct that appeals to the Court of Appeal require an oral
    hearing. Rather, r. 1.04(1) expresses the governing principle that the
Rules

shall be
    liberally construed to secure the just, most expeditious and least expensive
    determination of every civil proceeding on its merits.

[6]

It is also beyond controversy that the COVID-19 pandemic has created
    extraordinary circumstances to which we must all adapt as best we can. Since
    March 17, 2020, there have been no in person appeals heard at the Court of
    Appeal. More than 100 scheduled appeals had to be adjourned. Through a series
    of Practice Directions, this court has endeavoured to address the tremendous
    disruption caused by the pandemic. As a result, appeals are being heard in
    writing or remotely until in person appeals can resume. Case management
    conferences are being held to manage and schedule them.

[7]

Accordingly, it is well within this Courts jurisdiction to order that a
    civil appeal be heard in writing when the due administration of justice
    requires it. During these extraordinary times, judicial resources are strained.
    The ability to hear appeals remotely is not unlimited. Where appropriate, some
    appeals must be heard in writing in order to ensure that appeals continue to be
    heard in a timely and an orderly fashion.

(2)

This Appeal Should Proceed in Writing

[8]

In the present case, this appeal is entirely suited to being heard in
    writing. It arises out of the dismissal of an application for narrow
    declaratory relief. The application proceeded on a paper record. It concerns
    the interpretation of a clause in a contract within the context of a relatively
    straightforward factual matrix. The parties are permitted to file supplementary
    facta. Further submissions are not foreclosed: if necessary, the panel has the
    option to seek further oral and written submissions. There is absolutely no
    prejudice or unfairness to the appellant by proceeding in writing. But the potential
    prejudice to the respondents by any further delay and the unnecessary strain on
    the court system are obviated.

C.

Directions

[9]

This appeal will proceed in writing.

[10]

The
    parties shall serve and file electronically all material previously filed in
    paper and supplementary facta of no more than ten pages as follows: (1) the
    appellant by June 3, 2020; and (2) the respondents by June 24, 2020.

[11]

The
    supplementary facta shall include the parties respective brief costs
    submissions and append a costs outline. The facta and supplementary facta shall
    include hyperlinks as described in section 11 of the
Practice
    Direction Regarding the Electronic Conduct of Matters During the COVID-19
    Emergency
. Where possible, as described in section 12 of the same
    Practice Direction, parties are encouraged, but not required, to hyperlink the
    key documents referred to in their factums and use PDF bookmarks to facilitate
    navigation of the materials filed.

The parties are to consult
    the
Practice Direction Regarding the Electronic Conduct of
    Matters During the COVID-19 Emergency
at
https://www.ontariocourts.ca/coa/en/notices/covid19/practice-direction-electronic-conduct.pdf
.
    All electronic filings must be sent via email to
coa.e-file@ontario.ca
.

[12]

The
    courts appeal scheduling unit will contact the parties to advise the week
    during which the appeal shall be considered by the panel so that they are
    available in the event the panel requires additional submissions orally or in
    writing.

[13]

There
    is no publication ban nor any concerns about members of the public or media
    having access to the hearing.

L.B.
    Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: 2484234 Ontario Inc. v. Hanley
    Park Developments Inc., 2020 ONCA 293

DATE: 20200507

DOCKET: C67171

Tulloch, van Rensburg and
    Zarnett JJ.A.

BETWEEN

2484234 Ontario Inc.

Applicant (Appellant)

and

Hanley Park Developments Inc.

Respondent (Respondent)

Richard P. Quance, for the appellant

Howard J. Alpert and Vivian Xu, for the
    respondent

Heard: February 7, 2020

On appeal from the judgment of Justice Jane
    Ferguson of the Superior Court of Justice, dated June 13, 2019 with reasons
    reported at 2019 ONSC 3696.

COSTS ENDORSEMENT

[1]

By reasons dated April 29, 2020 (2020 ONCA 273),
    the appellants appeal was allowed, and costs of the appeal were awarded to the
    appellant. The parties were invited to make submissions, in writing, on the
    disposition of the costs below. Counsel for the appellant has advised that the
    parties have now reached agreement on these costs.

[2]

In accordance with the agreement of the parties,
    costs of the proceedings in the Superior Court, fixed in the sum of $30,000 all
    inclusive, shall be paid by the respondent to the appellant.

M. Tulloch J.A.

K. van Rensburg J.A.

B. Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Abu-Saud v. Abu-Saud, 2020 ONCA
    314

DATE: 20200522

DOCKET: M51538 (C67699)

Benotto
    J.A. (Motion Judge)

BETWEEN

Amneh Tawfic Abu-Saud

Applicant (Respondent/Moving Party)

and

Azam
    Asaad Abu-Saud

Respondent (Appellant
/Responding
    Party
)

William R. Clayton, for the responding
    party

Sharon E. Hassan, for the moving party

Heard: In writing
    with brief oral submissions on May 19, 2020

REASONS
    FOR DECISION

[1]

The appellant has not complied with the support
    order that he seeks to appeal. The respondent brings this motion to adjourn the
    appeal. She also requests a partial lifting of the automatic stay for a portion
    of the equalization payment, security for costs and an extension of time to
    file her factum.

BACKGROUND

[2]

The parties were married for 27 years. They have
    two adult children. The respondent was primarily responsible for child-rearing
    while the appellant pursued a career in tax preparation. He opened a business
    in 1992 that was operated from the family home with assistance from the
    respondent. The business eventually moved to an office, and the respondent
    assisted with the business while the children were in daycare or school. In
    1996, the appellant registered as a mutual fund dealer and started a company,
    Superstar Investment Corp. He is the sole shareholder and operating mind of
    Superstar.

[3]

In 2002, the respondent stopped working for the
    family business and obtained a job at another company. In 2010 she was
    diagnosed with fibromyalgia, which required her to withdraw from the workforce.
    She has not worked since.

[4]

The parties separated in 2015 and the respondent
    brought the underlying application seeking spousal support and an equalization
    of net family property. The highly contested litigation continued until 2019
    when the trial judgment was released. In the meantime, in 2017, the appellant
    entered into an agreement with Monarch Wealth Corporation whereby this company
    became the dealer under which he sold mutual funds to his clients. Superstar
    was de-registered for the sale of mutual funds, but the appellant continued to
    carry on his business through Superstar and all fees and commissions were paid
    to it.

DECISION BELOW

[5]

The trial judge awarded the respondent spousal
    support retroactive to the date of separation. The support was ordered on both
    a compensatory and a needs basis, recognizing her important contribution to the
    management of the household and to the appellants business.

[6]

The main issue as to equalization was the value
    of the goodwill of Superstar. The trial judge accepted the evidence of the
    respondents expert that the goodwill has a value because clients continue to
    seek the appellants advice and he continues to earn money for that advice. Even
    though by the time of the trial, the appellant was de-registered as a mutual
    fund dealer, the application judge found that he continues to manage his
    clients books of business. This was evidence of the goodwill value of
    Superstar at the valuation date for the purpose of calculating net family
    property and equalization. The trial judge rejected the evidence of the
    appellants expert, which attached no value to the goodwill absent evidence of
    a special purchaser. The trial judge accepted the respondents experts
    methodology and value of Superstars goodwill as $172,500.

[7]

The final Judgment released on October 30, 2019,
    with reasons reported at 2019 ONSC 6303, provided that:

1.

The appellant
pay
    spousal support in the amount of $2,653 per month, commencing January 1, 2019;

2.

The
retroactive spousal
    support of $94,305 be payable at a minimum rate of $500 per month, commencing
    April 1, 2019;

3.

The appellant
pay an
    equalization payment of $
278,316.85,
plus
    pre-judgment interest, with one-half being payable by April 30, 2019 and the
    remainder in equal instalments commencing January, 2020 and continuing until
    January, 2029;

4.

The payments for support and equalization were
secured against the appellants holdings in Superstar.

EVENTS FOLLOWING TRIAL

[8]

The delivery of a notice of appeal automatically
    stays, until the disposition of the appeal, any provision of the order for the
    payment of money,
except a provision that awards support
or enforces a
    support order: rule 63.01(1) of the
Rules of Civil Procedure,
R.R.O.
    1990, Reg. 194 [Emphasis added.]

[9]

The appellant has not paid the support ordered
    by the trial judge. The appellant did not pay the arrears in spousal support,
    retroactive spousal support, or increased monthly spousal support. Instead he
    initially paid spousal support of $1,500 per month, pursuant to an interim order,
    instead of the increased monthly support of $2,653. Then, in January 2020 he
    further reduced his monthly support payment to $1,100. He acknowledges that he
    has not complied but submits that he pays what he can afford to pay. He has
    not sought to stay the support provisions in the judgment.

[10]

Six days after receipt the judgment, the
    appellant transferred his 50% interest in his home to his current wife for
    consideration of $2. He did not transfer his liability under the mortgage to
    her, nor did she assume it.

[11]

Counsel for the respondent wrote to Monarch
    Wealth advising the company of the order securing the payments against
    Superstar. On March 16, 2020 Monarch Wealth sent an email to counsel as
    follows:

This is to inform you that [the appellant] has
    recently redeemed 100% of the holdings in the account Superstar Investments
    Corp.

We had this
    account frozen due to the correspondence you provided to us; however [the
    appellant] sent his request directly to the fund company without our knowledge,
    which is against our policies and procedures.

[12]

The respondent submits that this breaches the
    trial judges order. The appellant admits that he withdrew $200,000 from
    Superstar but says this was to assist with the purchase of his home, not to
    make himself judgment-proof. He says he still has the shares of Superstar so he
    has not violated the judgment provisions. He further submits that he was
    required pursuant to a pre-nuptial agreement with his current wife to make the
    payment for the home. The respondent points out that this alleged agreement was
    never disclosed to her or to the trial judge and this is the first time it has
    been mentioned.

THE APPEAL

[13]

The appellant submits that the trial judge erred
    in his determination of the equalization payment owing and
support.

[14]

The equalization payment error alleged is that
    the trial judge accepted the respondents expert evidence as to the value of
    the goodwill of Superstar. He says that the equalization payment award of
    $278,316.85 should instead have been $150,685.22.

[15]

He submits as well that the trial judge erred by
    awarding retroactive support and by imputing income to him of $90,000 in order
    to arrive at the
Guidelines
amount of support.

DISCUSSION

[16]

Against this background, I address the
    respondents motion.

Support arrears

[17]

I begin with the appellants failure to pay the
    support ordered in the judgment. Compliance with an order for support is not
    optional. Support payments are not stayed pending appeal. If the appellant
    seeks relief from this requirement, the procedure is to bring a motion to stay
    the support. The procedure is not to decide for yourself how much to pay. This
    court
has repeatedly
    admonished payors who do not pay the support pending appeal. In
Murphy v. Murphy
,
2015 ONCA 69, 56
    R.F.L. (7th) 257,
the court
    refused to entertain submissions from a party who had not paid support pending
    appeal. To do otherwise would be to reward his deliberate and willful
    misconduct: at para. 6.

[18]

The court may also refuse to hear an appeal when
    the appellant is in arrears until the arrears are cured. (See: Laskin J.A. in
Dickie v. Dicki
e (2006), 78 OR (3d) 1 at para. 21, endorsed by the SCC
    in
Dickie v. Dickie

2007 SCC 8, [2007] 1 S.C.R. 346, at para. 6
;
Brophy v. Brophy
, 180 O.A.C. 389
, at paras. 11-12;
A.A. v. Z.G.,
2016 ONCA 660
;
Siddiqui v. Anwar,
2018 ONCA 965
).

[19]

The appellants failure to pay is flagrant.
    Currently he owes more than $17,000. He acknowledges that he has the funds to
    pay.

[20]

Until his payments are brought up-to-date and he
    complies with the judgment, his appeal will not be listed for hearing. This is
    the just result and consistent with the approach of Laskin J.A. in
Dickie
at
    para. 21, and then endorsed by the SCC:

It is worth noting
    that requiring an appellant to comply with outstanding support orders, as a
    condition of proceeding with an appeal, does not make an appellant's appeal
    pointless. If the appellant is successful on appeal, the court's disposition
    can take into account the extent to which the support payments made have
    exceeded the level of support ordered on appeal.

Equalization payment

[21]

I turn to the equalization payment. The
    appellant has conceded that he owes a portion of the equalization payment. The
    respondent calculates the conceded amount to be $57,448.68
[1]
. The judgment provides that half of the equalization was to be paid
    on April 1, 2019.

[22]

Rule 63.01(5) provides that this court may order
    that the stay provision in r. 63.01(1) does not apply. Usually, the court
    looks to the merits of the appeal, the need for funds, and whether there is a
    danger that the payment will not be made:
Popa v.
    Popa
,

2018 ONCA 972, at para. 7. This is not
    a case like
Popa
. Here
    the appellant acknowledges that a portion of the equalization payment is owed.
    There is therefore no dispute about the funds requested by the respondent. In
    light of all the circumstances, it is just that the funds be paid now. The
    automatic stay on the equalization payment is hereby lifted to the extent of
    half of the admitted amount owing. Therefore $28,724.34 plus pre-judgment
    interest is payable now.

Support arrears and partial equalization to
    be paid

[23]

The appellant is to pay the respondent the
    support owed together with the portion of the equalization set out above. These
    payments are to be paid, together with outstanding interest, no later than June
    19, 2020.

Security for costs and an extension of time

[24]

The respondent
has
    not had the funds necessary to address the appeal and has not filed a responding
    factum. Consequently, she seeks security for costs and an extension of time to
    file the factum on the appeal. I will consider these requests immediately after
    June 19, 2020 or when the above payments are made, whichever is earlier.

Summary

[25]

In conclusion:

1.

The appeal is stayed until the appellant
    complies with this order.

2.

The appellant is to comply with judgment by
    bringing support payments up to date with a payment of $17,071 to the
    respondent no later than June 19, 2020.

3.

The appellant is to pay the respondent
    $28,724.34 plus pre-judgment interest to the respondent no later than June 19,
    2020.

4.

If the payments are not made, the respondent has
    leave to apply to a panel of this court to quash the appeal.

5.

If the payments are made, then I will address
    the portion of the motion dealing with an extension of time for the respondent
    to file her factum and security for costs. I therefore ask counsel to advise
    the motions office of the status of the payments.

6.

Costs of this portion of the respondents motion
    are payable to her in the amount of $3500 inclusive of HST and disbursements.

Released: May 22, 2020

M.L. Benotto J.A.

[1]
The difference between what the trial judge ordered and what he
    says it should have been less a payment already received by the respondent.


COURT OF APPEAL FOR ONTARIO

CITATION: Anderson (Re), 2020 ONCA 277

DATE: May 1, 2020

DOCKET: C67672

MacPherson, Benotto and
    Nordheimer JJ.A.

IN THE MATTER OF: Duane Anderson

AN APPEAL
    UNDER PART XX.1 OF THE
CODE

Terrance Luscombe, for the appellant

Ken Lockhart, for the respondent Her
    Majesty the Queen

Naveen Hassan, for the respondent Ontario
    Shores Centre for Mental Health Services

Heard: in writing

On appeal from the disposition of the
    Ontario Review Board dated October 15, 2019 with reasons dated October 28, 2019.

REASONS FOR DECISION

[1]

Duane Anderson appeals from the decision of the
    Ontario Review Board that continued his detention order and, in doing so,
    imposed a condition that he abstain absolutely from the non-medical use of
    alcohol or drugs. The appellant particularly objects to this condition insofar
    as it would prohibit him from the recreational use of cannabis. Medical use of
    cannabis is permitted under the current disposition.

[2]

The appellant submits that the condition
    regarding the use of drugs is not the least restrictive disposition available to
    the Board. He also submits that the condition was based on an inadequate
    evidentiary basis. There was no direct evidence that the use of cannabis would
    be a problem in the appellants case.

[3]

What the Board did have was the expert evidence
    of a psychiatrist that the use of cannabis generally exacerbates psychotic
    symptoms in people. The Board also had information in the hospital report, provided
    by the appellants mother, of a prior incident of the appellant acting aggressively
    that was tied to his excessive use of cannabis. All of this evidence had to be
    considered against the backdrop that there was no dispute that the appellant
    continues to pose a significant risk to the safety of the public.

[4]

The appellant points to a number of prior
    decisions of this court that he says supports his position that the Board must
    impose the least restrictive conditions in making a disposition. In particular,
    he relies on the decisions in
Re Sheikh
, 2019 ONCA 2019;
Re Wall
,
    2017 ONCA 713 and
Re Anuff
, 2016 ONCA 280. None of those decisions
    actually addresses the issue that we have here. In each of those cases, the
    issue was whether the evidence supported a finding by the Board that the
    individual posed a significant risk to the public. Here, that finding is
    conceded.

[5]

Rather, we are dealing with the legitimacy of a
    condition of the appellants disposition that restricts his access to cannabis.
    While those conditions must still pass the least restrictive test, in our view,
    there was sufficient evidence before the Board to warrant the imposition of
    that condition. It is not necessary for the Board to have direct evidence
    amounting to an absolute certainty that the imposition of such a condition is necessary
    in the appellants case. The Board was entitled to rely on the expert evidence regarding
    the effect of cannabis on individuals generally, coupled with evidence as to
    prior effect on the appellant, as a sufficient foundation to warrant the
    imposition of that condition. We note that there was no evidence to the
    contrary, that is, that the appellant was somehow immune from the general
    effect of cannabis.

[6]

It would be contrary to the Boards duty to
    protect the safety of the public to require it to withhold the imposition of a
    condition until an actual adverse event took place. The Board is entitled to
    rely on expert evidence as to the likelihood of an event happening as being
    sufficient to warrant the imposition of a specific condition. It certainly
    cannot be said that, in doing so, the Board acted unreasonably.

[7]

For the foregoing reasons, the appeal is dismissed.

J.C. MacPherson J.A.

M.L. Benotto J.A.

I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Barry v. Barry, 2020 ONCA 321

DATE: 20200527

DOCKET: C67550

Feldman, Lauwers and Huscroft
    JJ.A.

BETWEEN

Susan Barry

Applicant (Appellant)

and

Marc
    Andrew Barry
and James Michael Barry

Respondents (
Respondent
)

Michael H. Murray, for the appellant

Marc Andrew Barry, acting in person

Heard: In writing

On appeal from the order of Justice Timothy
    G. Price of the Superior Court of Justice, dated September 11, 2019.

REASONS FOR DECISION

[1]

Following a four-day trial to resolve financial issues arising from
    marital breakdown, the trial judge ordered that the respondent owed the
    appellant an equalization payment of $226,670.96. The order also provided that,
    after a fair market value assessment, the respondent had the right to conclude
    the purchase of the appellants interest in the jointly-owned matrimonial home
    within 30 days of the date of the release of the trial judges reasons, and to
    obtain the release of the appellant from her obligations under the existing
    first mortgage registered against the matrimonial home.

[2]

The appellant seeks to vary the trial judges order to omit the
    respondents right to conclude the purchase of the matrimonial home. She seeks
    the sale of the matrimonial home and division of its net proceeds.

[3]

The respondent initially informed the court that he would not be
    participating in the appeal. In a letter to the court, he stated that the
    appeal belonged in the Divisional Court, and asserted that he was not properly
    the respondent and that it was incumbent on the trial judge to explain his
    order. Just prior to the date scheduled for consideration of this appeal, the
    respondent filed a factum and reiterated these positions, and in addition took
    issue with the conduct of the appellant and her counsel throughout the
    proceedings. He stated that he had been required to live in a trailer as the
    matrimonial home sat vacant while the appellant lived with her mother, and
    sought compensation for his expenses and hardship.

[4]

Having considered the positions of the parties, we allow the appeal for
    these reasons.

[5]

First, the appeal is properly heard in this court rather than the
    Divisional Court. This court has jurisdiction to hear this appeal pursuant to
    s.6(1)(b) of the
Courts of Justice Act
, R.S.O.
    1990, c. C.43 (
CJA
) as an appeal from a final
    order of a judge of the Superior Court.
[1]

[6]

Second, the trial judges order speaks for itself. Trial judges do not
    defend their decisions on appeal. The respondent is entitled to defend the
    trial judges order. In any event, the appellant bears the burden of
    establishing that the trial judges decision should be varied on appeal.

[7]

This case raises a single issue: the arrangements for selling the
    matrimonial home. The appellant wanted to sell the home and divide the net
    proceeds of the sale, while the respondent wanted to purchase the appellants
    interest in it. The current value of the home was not established at trial. The
    trial judge granted the respondent the right to purchase the matrimonial home
    within 30 days from the release of his decision after obtaining a fair market
    value assessment.

[8]

The appellant submits that the trial judge erred in making this order.
    We agree.

[9]

As this court explained in
Martin v. Martin
, [1992] 8 O.R. (3d) 41 (C.A.), a right of first refusal is a
    substantive right that has economic value. It falls outside the boundaries of
    what is ancillary or what is reasonably necessary to implement the order for
    sale of the matrimonial home. It distorts the market for the sale of the
    matrimonial home by eliminating the need to compete against any other
    prospective purchaser, thus potentially reducing the amount the joint owning
    spouse realizes on the sale. In the absence of consent, the right of first
    refusal should not have been granted in this case. If the respondent seeks to
    purchase the matrimonial home, he must compete with any other interested
    purchaser.

[10]

Accordingly, the appeal is allowed.

[11]

Section 3 of the order is vacated. Section 4 of
    the order is replaced with the following provision: The matrimonial home shall
    be listed for sale immediately.

[12]

The appellant is entitled to costs on the appeal
    fixed at $7,500, inclusive of taxes and disbursements.

K. Feldman J.A.

P. Lauwers J.A.

Grant Huscroft
    J.A.

[1]
Part I of the
Family Law Act
, R.S.O. 1990, c. F.3, which
    deals with equalization of net family properties, does not have an appeal
    provision captured by the deeming provision in s. 21.9.1 of the
CJA,
which
directs
    certain final appeals from decisions of the Family Court to the Divisional
    Court.


COURT OF APPEAL FOR ONTARIO

CITATION: Bowman v. Martineau, 2020 ONCA 330

DATE: 20200529

DOCKET: C66751

Rouleau, Hourigan and Roberts JJ.A.

BETWEEN

Aden Bowman personally
and as executor for the estate of Shirley Bowman

Plaintiffs
(Respondents)

and

Alma Emond, Shelley Emond, Paul Studholme
,
Suzanne Martineau
and Re/Max Hallmark Realty Limited

Defendants
(
Appellants
)

Paul Le Vay and Stephen Aylward, for the appellants

David A. Morin and Peter Reinitzer, for
    the respondents

Heard: March 12, 2020

On appeal from the judgment of
    Justice Guy P. Di Tomaso of the Superior Court of Justice dated March 4, 2019, with
    reasons reported at 2019 ONSC 1468, and from the costs judgment dated April 4,
    2019, with reasons reported at 2019 ONSC 2141 and 2019 ONSC 2328.

Roberts
    J.A.:

A.

Overview

[1]

The appellant real estate agent and broker appeal from the judgment ordering
    them to pay damages to the respondent purchasers of a residential home. The
    trial judge ordered the appellants to pay for the costs necessary to repair water
    and mould damage that the respondents discovered only after their purchase due
    to the appellant real estate agents negligence.

[2]

The appellants do not appeal the trial judges finding or apportionment of
    liability but submit that the trial judge erred in his assessment of damages.

[3]

For the following reasons, I would allow the appeal, set aside judgment
    in respect of the damages awarded for the costs to repair the property, and
    remit the matter to the trial judge to determine the diminution in value of the
    property given its damaged state.

B.

BACKGROUND

[4]

The appellants acted both for the vendors, Alma and Shelley Emond, and the
    respondents on the sale of a house. The trial judge found the vendors liable to
    the respondents for non-disclosure and concealment of water damage. He determined
    that the appellants were negligent in the execution of their professional
    responsibilities and therefore liable to the respondents.

[5]

Specifically, the trial judge determined that the appellant real estate
    agent, Ms. Martineau, had failed to review and verify with the vendors and then
    the respondents the information contained in the Seller Property Information
    Statement (SPIS), the checklist of information about the property. The trial judge
    concluded that if she had done so, Ms. Martineau would have discovered that the
    property suffered from ongoing water leakage. As a result, the respondents were
    left without the means to find out about the ongoing roof leakage and mould problems.

[6]

The trial judge assessed the respondents damages at $450,215.35, calculated
    as follows: $332,706.59 for the cost to repair the property; $10,282.13 for out
    of pocket expenses for time and materials spent on the tearing out of the
    damaged portions of the house; $101,500 for the respondents alternative living
    expenses from September 2014 to July 2019; $726.63 for hydro and insurance costs
    thrown away; and $5,000 in general damages. He apportioned the appellants liability
    at 70% and the vendors liability at 30%
[1]
.
    Accordingly, judgment was granted against the appellants in the amount of $315,150.74
    (70% of $450,215.35) and costs of $144,679.55.

C.

Issues

[7]

The appellants submit the trial judge erred in his assessment of the respondents
    damages as follows:

1.

The trial judge erred by applying a cost of repair rather than a diminution
    in value measure of damages;

2.

The trial judge erred in concluding that the respondents had not failed
    to mitigate their damages; and

3.

The trial judge erred in determining that the frost heave damage was
    reasonably foreseeable.

D.

Analysis

(1)

The Measure of Damages

(a)

Applicable Legal Principles

[8]

The general, well-settled rule for the assessment of compensatory damages
    in tort actions is that, as far as damages can accomplish this, the plaintiff
    is entitled to be put into the position he or she would have occupied but for
    the injury caused by the defendant:
Nan v. Black Pine Manufacturing Ltd.
(1991),
    80 D.L.R. (4th) 153 (B.C.C.A.), at p. 157.

[9]

Restoration of the plaintiffs position should not amount to under or
    over compensation but only result in the amount of compensation that will make the
    plaintiff whole. Accordingly, limits are placed on compensation: a plaintiff
    can generally only recover for actual injury caused by the defendants conduct,
    and not for damages that are too remote in that they are speculative or not reasonably
    foreseeable:
Clements v. Clements
, 2012 SCC 32, [2012] 2 S.C.R. 181,
    at para. 13;
Deloitte & Touche v. Livent Inc.
, 2017 SCC 63, [2017]
    2 S.C.R. 855, at para. 77.

[10]

Achieving
    the restoration of the plaintiffs position requires an approach that is not
    unnecessarily complicated or rule-ridden but responsive to the facts of each
    given case:
James Street Hardware and Furniture Co. v. Spizziri
, 1987
    CanLII 4172 (Ont. C.A.), at pp. 27-28.

[11]

In
    cases where the harm to be compensated for is property damage, damages have typically
    been assessed either as the cost to repair the property or its resulting
    diminution in value.
The historical common law
    position was that damage caused to real property was measured by the diminution
    in the value of the land:
C.R. Taylor (Wholesale) Ltd. and others v.
    Hepworths Ltd.
, [1977] 2 All E.R. 784
    (Q.B.) at pp. 790-91, citing
Jones v. Gooday
(1841), 8 M. & W. 146. However, later English
    cases held that the cost of reinstatement, or repair, could be awarded in an appropriate
    case:
Dominion Mosaics and Tile Co. Ltd. and another v. Trafalgar
    Trucking Co. Ltd. and another
, [1990] 2 All
    E.R. 246 (C.A.), at pp. 249-50;
Hepworths
, at p. 791,

citing
Harbutts Plasticine Ltd. v. Wayne Tank and Pump Co. Ltd.
, [1970] 1 All E.R. 225 (C.A.). These later authorities
    have been received into the law of this country:
James Street
    Hardware
;
Nan
, at pp. 157-158
. The application of one or the
    other of these approaches is governed by the specific facts of the particular
    case and the further regulating factors of causation, reasonableness and
    proportionality that I have already referenced.

[12]

In
    professional negligence cases involving real property, like the present, careful
    attention must be paid to the causal link between the injury suffered and the
    act of negligence. Depending on the facts, the negligence may not actually have
    caused property damage, rendering the case law concerning the assessment of damages
    for harm to property inapplicable.

[13]

In
    some cases, the professional negligence will actually have caused the defect in
    the property or will have caused the plaintiff to lose the right to recover for
    that defect. For example, in
Kienzle v. Stringer
(1981), 35 O.R. (2d)
    85 (C.A.), leave to appeal refused, [1982] S.C.C.A. No. 252, the solicitors negligence
    in conveying the property caused a defect in title and the plaintiff was entitled
    to recover the cost of putting the title in good order. In
Jarbeau v. McLean,
2017 ONCA 115, 410 D.L.R. (4th) 246, the solicitor negligently failed to
    commence an action against an engineer who negligently certified the defective
    construction of a new home. But for the negligence, the plaintiffs would have recovered
    the cost to repair the property against the negligent engineer, whose negligence
    had, in turn, caused the defect in the property. Finally, in
Tabata v. McWilliams
    et al.
(1982), 40 O.R. (2d) 158 (C.A.), the
    solicitor negligently failed to warn the client, who was purchasing a home, of
    the need for an occupancy permit prior to occupation of the property. But for
    the negligence, the plaintiff could have insisted on an occupancy permit being
    obtained by the vendors prior to closing, which would have in all probability
    involved the repair of the property
. Given these cases involve defects
    in property, the case law concerning the assessment of damage to property applies.

[14]

In
    other cases, however, the professional negligence will not have caused damage
    to property, but rather will have merely caused the plaintiff to enter into a
    transaction they would otherwise have avoided. For example, in
Messineo et
    al. v. Beale
(1978), 20 O.R. (2d) 49 (C.A.), a solicitor negligently
    failed to discover and report a pre-existing defect in the vendors title but
    did not cause the defect. In
Toronto Industrial Leaseholds Ltd. v. Posesorski
(1994), 119 D.L.R. (4th) 193 (Ont. C.A.), a solicitor negligently failed to
    report the existence of an option to rent the purchased property at below
    current market rents but did not bring the option into existence. Finally, in
Krawchuk
    v. Scherbak
, 2011 ONCA 352, 106 O.R. (3d) 598, leave to appeal refused,
    [2011] S.C.C.A. No. 319, the real estate agent negligently failed to take any
    steps to inquire into the accuracy of the vendors representations concerning the
    condition of the property, but did not cause its poor condition. In these cases,
    damages were assessed by looking to the overpayment paid by the plaintiff and
    their consequential damages, rather than the cost to repair or remove the defect.

(b)

The Trial Judge Erred by Mischaracterizing the Nature of the Harm Suffered
    by the Respondents

[15]

Relying
    on the approach followed by this court in
Messineo
and
Posesorski
,
    the appellants submit that the trial judge erred in measuring damages as the cost
    to repair the premises because the appellants professional negligence did not
    cause the water and mould damage to the property.

[16]

The
    respondents argue that diminution of value is not the appropriate measure of
    damages. In their submission, in the case of the loss of a family home, where
    there is a reasonable desire to rebuild, cost to repair provides the appropriate
    measure of damages.

[17]

I
    agree with the appellants position. The difficulty with the respondents
    argument is that it conflates the cause in fact of their damages with the reasonableness
    of the quantum. In my view, the trial judge erred in his approach to causation.
    Specifically, the trial judge mischaracterized the respondents loss flowing
    from the appellants negligence and misinterpreted this courts decision in
Jarbeau.

[18]

The
    trial judge properly concluded that but for the appellants negligence, the respondents
    would not have entered into the agreement of purchase and sale to buy the
    house. This finding was supported by the respondents pleading and Mr. Bowmans
    evidence at trial. It is not contested on appeal.

[19]

However,
    the trial judge erred by mischaracterizing the respondents resulting loss as
    their entitlement to a house free of mould and water damage. He also
    misinterpreted
Jarbeau
as standing for the general proposition that cost
    to repair is a more appropriate measure of damages when assessing loss related
    to defective property. These errors led the trial judge to reject the diminution
    in value calculation and apply the cost to repair approach without considering
    whether the latter measure of damages compensated for the injury actually
    caused by the appellants negligence.

[20]

Referring
    to
Jarbeau
, the trial judge explained his reasoning as follows:

I reject the diminution in value approach for the following reasons.
    This approach fails to take into account the purpose of damages in a tort claim
     to ensure that the damages awarded to a plaintiff should put him or her in the
    same position as they would have been in had they not sustained the wrong for
    which they are receiving compensation or reparation.
In the context of property
    loss matters, where a purchaser believes it had purchased a home free of
    defects, the fairest measure of damages is that which would provide the
    [plaintiffs] with what they bargained for  a home free of defects.
 [Emphasis
    added.]

[21]

Jarbeau
does not stand for the general proposition espoused by the trial judge that cost
    to repair invariably represents the fairest measure of damages regardless of
    the causal link.
Jarbeau
was a solicitors negligence action. The plaintiffs
    claimed damages against their solicitor for failing to commence an action within
    the requisite limitation period against the engineer who negligently certified
    the design and construction of the plaintiffs brand-new, but defective home. The
    plaintiffs were entitled to be put into the position they would have occupied had
    the action been commenced in time against the negligent engineer. In their proposed
    action against the negligent engineer, the plaintiffs would have been entitled
    to be put into the position they would have occupied had the engineer not been
    negligent, namely, they would have received the new, defect-free house for which
    they had bargained. It was in those particular circumstances that this court upheld
    the cost of reinstatement as the reasonable and proportionate measure of damages.

[22]

In
    the present case, the trial judge erroneously equated the respondents loss
    with the loss of a house free of mould and water damage. This reasoning is reflected
    in the trial judges observations that: No evidence was tendered at trial
    suggesting that damages calculated on a diminution in value basis would permit [the
    respondents]
to obtain a home similar to the one they purchased that is free
    of mould and water damage
 (emphasis added). However, the loss that the
    respondents suffered as a result of the appellants negligence was not property
    loss of this nature.

[23]

The
    respondents loss consisted of entering into a transaction to purchase a house
    damaged by water and mould. The appellants negligent provision of professional
    services caused the respondents to enter into a transaction that they would not
    have otherwise undertaken. But the appellants did not cause the water and mould
    damage to the property. In other words, even if the appellants had not been negligent,
    the respondents would still not have received a water and mould-free property;
    they would merely have avoided this bargain. This takes this case outside the
    scope of
Jarbeau
,
Nan
, and other cases where the negligence was
    causally related to property damage.

[24]

As
    the appellants wrong did not cause the property defect, the respondents are
    not entitled to demand what they could never have had even if the appellants
    had not been negligent, namely, a house free of mould and water damage:
Posesorski
,
    at p. 210;
Avrom Evenchick (Trustee of) v. Ottawa (City)
(1998), 111 O.A.C. 132 (C.A.)
, at para. 12;
Samson
    v. Lockwood
, 1998 CanLII 1920 (Ont. C.A.)
,
    at p. 13. They are only entitled to damages to compensate them for entering
    into a bad transaction they would have otherwise avoided. These damages will include
    their overpayment for the defective property, namely, its diminution in value.
[2]

[25]

I
    do not accept the respondents additional argument that the cost of repair is the
    default method for ascertaining damages in this case. Awarding cost to repair would
    over-compensate the respondents and therefore not put them in the position they
    would have occupied but for the appellants negligence:
Evenchick
, at para. 12;
Esso Petroleum Co. Ltd. v.
    Mardon
, [1976] 2 All E.R. 5

(C.A.), at p. 16; see also
Downs and another
    v. Chappell and another
, [1996] 3 All E.R.
    344

(C.A), at p. 358.

[26]

As
    a result, the trial judges cost to repair approach to damages that awarded the
    equivalent of a house free of mould and water damage to the respondents was not
    the true measure of the respondents loss caused by the appellants negligence
    and must be set aside.

(c)

The Assessment of Damages Must be Remitted

[27]

While
    I conclude that the cost to repair the home was not an appropriate measure of
    damages in this case, it is not possible on the record before us to assess the damages
    flowing to the respondents from the appellants negligence. There is, for example,
    no admissible evidence concerning the value of the property given the mould and
    water damage, which is necessary to calculate the magnitude of overpayment. The
    trial judge rejected the evidence of the real estate expert called by the
    appellants and the appellants have not challenged that ruling on appeal.

[28]

In
    consequence, I would remit the assessment of damages to the trial judge for his
    determination, as well as the case management of what further evidence and submissions
    from the parties will be required for the determination of this issue.

(2)

Mitigation

[29]

The
    appellants argue that the trial judge erred in rejecting their submission that
    the respondents failed to mitigate their damages. Specifically, they say the respondents
    should have simply walked away from the property and the mortgage.

[30]

I
    disagree.

[31]

The
    respondents were required to make reasonable efforts to mitigate their damages.
    It is the appellants onus to demonstrate they failed to do so:
Janiak v.
    Ippolito
, [1985] 1 S.C.R. 146, at p. 163. I see no error in the trial
    judges conclusion that the appellants did not meet that onus. The trial judges
    determination of the mitigation issue was reasonable in the circumstances of
    this case. His conclusion is therefore entitled to deference on appeal.

[32]

There
    was no evidence establishing that the respondents could have sold or walked
    away from the property, or that it was reasonable for them to take either
    course in their circumstances, which included their straitened finances and obligations
    under the vendor-take-back mortgage. Even accepting the appellants real estate
    expert evidence of property value at $165,000, the respondents would not have
    been able to recoup enough money from a sale to repay the vendor-take-back
    mortgage. The unchallenged evidence at trial showed that the respondents were
    in difficult financial circumstances: they could not afford to buy another property,
    remediate this property, or maintain the property while paying the mortgage and
    renting alternative living accommodations. As a result, it was not unreasonable
    for them to retain the property and seek damages from the appellants.

(3)

Frost Heave Damage

[33]

The
    appellants submit that the trial judge erred in his consideration of this issue
    in that the trial judge made inconsistent findings concerning the question of
    whether the frost heave damage was reasonably foreseeable. Specifically, the appellants
    say that the trial judge erred by determining that while the respondents could
    not have foreseen the cause of the heaving of the foundation, the frost heave
    damage was a reasonably foreseeable consequence of the negligence.

[34]

I
    do not accept these submissions. In my view, the appellants are conflating the
    trial judges findings on mitigation with those on remoteness of damages.

[35]

At
    trial, the appellants argued that the frost heave damage was too remote and not
    causally connected to the appellants negligence; and, further, that the
    respondents had failed to mitigate their damages. A fair reading of the trial
    judges reasons shows that the trial judge dealt with both these issues.

[36]

With
    respect to the issue of mitigation, the trial judge determined that it was fair
    and reasonable for the respondents to shut down the house rather than reinstate
    a heating system that they could not afford to operate in order to heat a house
    that was not insulated because of the gutting required by the water and mould damage.
    He also found that it was reasonable for the respondents to follow the measures
    recommended by Mr. Korner, a professional engineer, to try to protect the
    house. As a result, he found that the appellants had failed to satisfy their onus
    to demonstrate that the respondents did not mitigate their damages.

[37]

Turning
    next to the trial judges findings concerning causation and remoteness of damages,
    he found that it is foreseeable that a home rendered inhabitable by mould and
    water damage cannot be lived in, that a home not lived in will not be heated and
    that an unheated home subjected to the effects of freezing temperatures during
    the winter months could suffer from floor heaving. In consequence, he determined
    that the basement floor heaving is not so removed as to be unrecoverable.

[38]

It
    is clear that the trial judge concluded that the frost heave was reasonably foreseeable
    and hence the necessity for the respondents efforts to protect the empty houses
    foundation with straw as recommended by their engineering expert. What was not
    foreseeable, and therefore not a failure to mitigate on the part of the respondents,
    was that the recommended protective steps would not be effective. The trial
    judge effectively concluded that the failure of the recommended measures to
    adequately protect the foundation should not be visited against the respondents
    as a failure to mitigate their damages. His mitigation finding was separate from
    the trial judges findings respecting causation and remoteness.

[39]

I
    see no inconsistencies or errors in the trial judges findings concerning the issues
    of mitigation, causation and remoteness of the frost heave damage. They were available
    to him on the record.

(4)

Conclusion

[40]

Awarding
    the cost of repair was an error in this case because the defect in the property
    did not result from the negligence. This head of damage should be replaced with
    the diminution in value of the property as a result of the now-revealed defects.
    In light of my conclusions above that the respondents have not failed to mitigate
    their damages and that the frost heave damage is a reasonably foreseeable
    consequence of being negligently advised into this transaction, the relevant measure
    is the difference between the purchase price paid and the actual value of the
    property in its damaged state at the time of trial, including as a result of
    the frost heaving.

E.

Disposition

[41]

Accordingly,
    I would allow the appeal in part and set aside the trial judges March 4, 2019 judgment
    in relation to his award of costs to repair against the appellants in the amount
    of $232,894.61. The balance of the trial judges award is not affected by this
    result. I would also set aside his April 4, 2019 judgment of costs, fixed in
    the amount of $144,679.55, against the appellants.

[42]

I
    would remit to the trial judge the assessment of the respondents damages arising
    from the overpayment and diminution in value of the property caused by the
    appellants negligence and the issue of the costs from the first trial.

[43]

In
    my proposed disposition of the appeal, since the appellants would succeed on only
    their first ground of appeal, the results would be mixed, and I would make no
    order as to costs of the appeal.

Released: May 29, 2020 (P.R.)

L.B.
    Roberts J.A.

I
    agree. Paul Rouleau J.A.

I
    agree. C.W. Hourigan J.A.

[1]

The respondents and the vendors entered in to a proportionate
    share agreement in settlement of the respondents claim against them.

[2]
These
  damages are not limited to overpayment. As reflected in the portion of the
  trial judges damages award that is not challenged on this appeal, there may be
  various consequential losses suffered as a result of being wrongfully advised
  into the transaction:
Posesorski
, at p. 40
.