COURT OF APPEAL FOR ONTARIO

CITATION: Collins v. Ontario, 2017 ONCA 592

DATE: 20170707

DOCKET: C62801

Sharpe, Epstein and Miller JJ.A.

BETWEEN

R. Maxine Collins

Plaintiff/Appellant

and

Her Majesty the Queen in the Right of Ontario

Defendant/Respondent

R. Maxine Collins, acting in person

Daniel Mayer, for the respondent

Heard and released orally: June 30, 2017

On appeal from the order of Justice Mark L. Edwards of
    the Superior Court of Justice, dated September 25, 2016.

REASONS FOR DECISION

[1]

This is an appeal from an order granting the
    respondents motion to set aside a notice of default and dismissing the
    appellants action on the ground that it constitutes an abuse of process and
    fails to disclose a reasonable cause of action.

[2]

The appellants action against the Crown alleges that
    various Ministry of the Attorney General employees misconducted themselves in
    relation to proceedings that she had commenced before the Landlord Tenant
    Board, the Divisional Court and the Superior Court of Justice, after those
    proceedings were decided adversely against her.

[3]

The facts relating to the noting in default are set out
    in the reasons of the motion judge and need not be repeated here. We agree with
    the motion judge that even on the appellants version of events, which the
    respondent disputed, the respondent would be entitled to set aside the notice
    of default. There was no need to hear the appellants motion to review the
    registrars order, as the notice of default would have been set aside in any
    event.

[4]

It is apparent that the action against the Crown, based
    upon alleged misconduct of court officials, represents an attempt to question
    the legitimacy of proceedings that have been decided unfavourably against the
    appellant.

[5]

The motion judge did not err in characterizing this
    attempt as an abuse of process. Nor did he err in finding that the appellant
    had failed to plead the necessary elements of malice or intent to injure to
    make out the tort of
misfeasance
in public office.

[6]

There was no denial of the appellants right to be
    heard. The appellants cross motion to strike the statement of defence became
    moot once her statement of claim was struck.

[7]

Finally, we see no error regarding costs.

[8]

Accordingly, the appeal is dismissed. Costs to the
    respondent fixed at $2,000 inclusive of disbursements and taxes.

Robert J. Sharpe
    J.A.

Gloria
    Epstein J.A.

B.W.
    Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Cosentino v. Cosentino, 2017 ONCA 593

DATE: 20170707

DOCKET:  M47926, M47948 (C62422)

MacPherson, Cronk and Benotto JJ.A.

BETWEEN

Karina Cosentino

Applicant (Respondent in Appeal)

and

Benito Cosentino

Respondent (Appellant)

J. Richard Forget for, Benito Cosentino

Hugh M. Evans, for Karina Cosentino

Heard: July 6, 2017

REASONS FOR DECISION

[1]

The parties are involved in an ongoing matrimonial dispute. They were
    married in 2001 and have two children, now ages 11 and 13.

[2]

There was an order in the court below to bifurcate the custody and
    access issues from the financial matters. The financial matters were dealt with
    at a six-day trial held before Douglas J. On June 16, 2016, the trial judge
    made a final order that the husband pay the wife an equalization payment, child
    support and spousal support.

[3]

The husband appealed the quantum of the equalization payment. The wife
    cross-appealed the quantum of child support.

[4]

The wife now moves for an order dismissing the husbands appeal for
    non-payment of child and spousal support. In the alternative, if he is allowed
    to continue the appeal, she seeks to have certain case-management style
    conditions placed on him.

[5]

On October 25, 2016, Lauwers J.A. heard a motion by the wife for partial
    payment of the equalization payment. At the return of the motion, however, the
    parties instead requested that interim child and spousal support payments be
    set, together with an expedited appeal. The husbands counsel proposed
    $1,412.00 per month and the wifes counsel agreed. Lauwers J.A. made the order
    and neither party has sought to review it.

[6]

Lauwers J.A. also ordered that the appeal be expedited and heard in
    March 2017. March 2017 has come and gone and the appeal has not been perfected
    or heard. On March 29, 2017, Blair J.A., sitting in status court, commented
    that little has been done and he would consider placing the matter on the
    Purge Court list to be considered for dismissal for delay.

[7]

The husband has not complied with the order of Lauwers J.A. He has made
    only partial payments since February 2017. The wife seeks a dismissal of the
    appeal.

[8]

This court has consistently refused to hear from a party or entertain an
    appeal where the record shows continuing disobedience with court orders: see
Dickie v. Dickie
, 2007 SCC 8, [2007] 1 S.C.R. 346;
Nowacki v. Nowacki
,
    2015 CanLii 41092 (Ont. C.A.);
Martyn v. Martyn
, 2010 ONCA 730;
Burley
    v. Burley
, 2009 ONCA 2, 244 O.A.C. 198; and
Murphy v. Murphy
,
    2015 ONCA 69, 56 R.F.L. (7th) 257.

[9]

Here, it was the husbands counsel who  in order to avoid an order for
    partial payment of the equalization payment  proposed the amount of interim
    support, which the husband has since not paid.

[10]

The husbands actions in failing to pay the interim child and spousal
    support and in not pursuing or perfecting the appeal on a timely basis
    disentitle him from continuing with this appeal.

[11]

The wifes motion is allowed and the husbands appeal is dismissed with
    costs fixed at $3,750, inclusive of disbursements and HST. The costs may be
    enforced as part of support by the Family Responsibility Office.

[12]

At the wifes request, her cross-appeal is correspondingly dismissed
    without costs.

J.C. MacPherson J.A.

E.A. Cronk J.A.

M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Couper v. Nu-Life Corp., 2017 ONCA 571

DATE: 20170705

DOCKET: C62529

LaForme, Hourigan and Paciocco JJ.A.

BETWEEN

Mark Couper

Plaintiff
    (Respondent and

Appellant by way of cross-appeal)

and

Nu-Life
    Corp., Nu-Life Nutrition Ltd.,

Vitaquest International
    LLC and Keith Frankel

Defendants
    (Appellants and

Respondents by way of cross-appeal)

John J. Pirie and Jennifer R. Bernardo, for the
    appellants and respondents by way of cross-appeal

John J. Adair, for the respondent and appellant by way
    of cross-appeal

Heard: Thursday, June 29, 2017

On appeal from the judgment of Justice John A.B.
    MacDonald of the Superior Court of Justice, dated April 29, 2016.

REASONS FOR DECISION

[1]

This appeal and cross-appeal concern a contractual dispute between two
    friends and their respective companies.

[2]

Mark Couper was the president of the appellant Nu-Life Corp., which was
    affiliated with Nu-Life Nutrition Ltd (Nu-Life). He was friends with Keith
    Frankel, the senior executive officer of Vitaquest International LLC
    (Vitaquest). Nu-Life was a vitamin retailer based in Ontario and Vitaquest
    was a vitamin manufacturer based in New Jersey.

[3]

For a period of time, Vitaquest supplied Nu-Life with vitamins for the
    purpose of sale. Vitaquest eventually became the primary financier of Nu-Life.

[4]

Nu-Life became insolvent in 2002, requiring it to make a restructuring
    proposal. As a result of the restructuring, Vitaquest held a 90 per cent equity
    interest in Nu-Life. Mr. Coupers employment contract with Nu-Life was
    terminated. Discussions between Mr. Frankel and Mr. Couper ensued about an
    employment contract for Mr. Couper with Vitaquest. The trial judge found that
    an oral agreement was reached in October 2003 (the employment agreement). His
    findings about the terms of the contractual arrangements between Mr. Couper and
    Vitaquest are the subject of this appeal and cross-appeal.

[5]

The issues on the appeal and the cross-appeal
    were narrowed considerably by the parties. On the appeal brought by Nu-Life,
    Vitaquest and Mr. Frankel, the only issue is whether the trial judge erred in
    finding that Mr. Couper was entitled to damages equivalent to base pay for the
    period October 2003 to March 2005. On the cross-appeal brought by Mr. Couper,
    the only issue is whether the trial judge erred in finding that Mr. Couper was
    not entitled to a US$5 million payment from Vitaquest. For the reasons that
    follow, we dismiss the appeal and the cross-appeal.

[6]

On the issue of the base pay, Vitaquest submits
    that, because the trial judge found that Mr. Coupers employment was one of
    indefinite duration, the only basis to calculate damages is by conducting an
    analysis of the appropriate amount of pay in lieu of reasonable notice, having
    regard to the factors enunciated in
Bardal v. The Globe & Mail
    Ltd.
(1960), 24 D.L.R. (2d) 140 (Ont. H.C.). Vitaquest
    submits that the trial judge erred in not adopting this approach. It further
    submits that the employment agreement came to an end on November 14, 2013, when
    counsel for Vitaquest repudiated the employment agreement by proposing
    alternative employment terms that Mr. Couper rejected.

[7]

Mr. Couper submits that damages principles from
    wrongful dismissal cases have no application to the present case because he
    never sued for wrongful dismissal; his claim was for unpaid base wages under the
    employment agreement. In Mr. Coupers submission, the trial judge found that
    the employment agreement was repudiated in early March 2005. Accordingly, Mr.
    Couper says that the correct measure of damages is a straightforward
    calculation of unpaid base wages from October 20, 2003 to March 2005.

[8]

We accept the submissions made by Mr. Couper on
    this issue. The claim he asserted was for unpaid base salary and not wrongful
    dismissal. In written submissions to the trial judge, counsel for Mr. Couper argued
    that the employment agreement was repudiated in early March 2005. Vitaquest
    made a tactical decision to take the position at trial that no employment
    contract ever existed. It declined to make an alternative argument that, if an
    agreement existed, it was repudiated in November 2003.

[9]

On a careful review of his reasons, we are of
    the view that the trial judge found that the employment agreement was repudiated
    by Vitaquest in early March 2005. That finding is entitled to deference. There
    was an evidentiary basis for it, including the clear breakdown in the parties
    relationship resulting from dealings with a private equity firm interested in
    purchasing part of Vitaquest and the evidence of Mr. Couper that he began
    looking for alternative employment in March 2005.

[10]

As noted above, a November 2003 repudiation
    defence was never posited at trial by Vitaquest and, accordingly, there was no
    finding to this effect. It would be unfair to Mr. Couper to permit Vitaquest to
    advance alternative arguments such as a November 2003 contractual repudiation
    defence and wrongful dismissal for the first time on appeal. In any event, we are
    not satisfied that it was clear from the evidence regarding what transpired in
    November 2003 that there was a repudiation at that time.

[11]

We conclude, therefore, that there is no basis
    to interfere with the trial judges finding regarding base pay.

[12]

With respect to the issue raised on the
    cross-appeal of whether the employment agreement or any other agreement contained
    a term entitling Mr. Couper to a US$5 million payment, we also see no basis to
    interfere with the trial judges conclusion that no such term was included
    either in the employment agreement or in any separate agreement

[13]

The trial judge held that an October 14, 2003 email
    from Mr. Frankel to Vitaquests in-house counsel was the most reliable
    evidentiary support for his findings as to the content of the employment
    agreement. The contractual terms outlined in that email did not contain any
    reference to the US$5 million payment from Vitaquest to Mr. Couper, and the
    trial judge did not find that any other communication between the parties
    evidenced an agreement on such a payment

[14]

The trial judge was in the best position to consider
    the evidence regarding the US$5 million payment. In doing so, he drew upon his
    assessments of the credibility of Mr. Couper and Mr. Frankel, choosing not to
    place significant weight on Mr. Coupers testimony on this issue. He also chose
    not to place significant weight on surrounding facts that might support an
    argument that the disputed term was intended to be included in either the
    employment agreement or a separate agreement. These were highly fact-sensitive
    choices that the trial judge had to make.

[15]

Mr. Couper has not identified any extricable
    legal error in these choices. He points to elements of the factual matrix
    surrounding the October 14, 2003 email that he says support the existence of
    the disputed term. However, given the appropriate division of labour between
    trial and appellate courts, Mr. Couper must demonstrate something more than
    facts that support findings contrary to those made by the trial judge. In the
    absence of a palpable and overriding error in the trial judges choices as to
    which facts to rely on to make his findings, this court must defer to those
    factual findings:
Ledcor Construction Ltd. v. Northbridge Indemnity
    Insurance Co.
, 2016 SCC 37, [2016] 2 S.C.R. 23, at paras.
    35-37. We see no such palpable and overriding error.

[16]

The appeal and cross-appeal are dismissed. The
    parties agreed that the winner of the main appeal would be entitled to costs of
    $20,000 and that the winner of the cross-appeal would be entitled to costs of
    $15,000. In the result, there will be a cost order in favour of Mr. Couper in
    the amount of $5,000, inclusive of fees, disbursements and taxes.

H.S. LaForme J.A.

C.W. Hourigan J.A.

David M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: D'Ascenzo v. Nichols, 2017 ONCA
    578

DATE: 20170706

DOCKET: C63100

MacPherson, Cronk and Benotto JJ.A.

BETWEEN

Scott Andrew D'Ascenzo, 1702620 Ontario Inc. and
    1686977 Ontario Inc.

Plaintiffs
    (Respondents/

Appellants by way of
    cross-appeal)

and

Carl Albert Nichols

Defendant (Appellant/

Respondent by way of
    cross-appeal)

Marcus Boire, for the appellant/respondent by way of
    cross-appeal

Jean-François Laberge and Manou Ranaivoson, for the
    respondents/ appellants by way of cross-appeal

Heard: July 4, 2017

On appeal from the judgment of Justice Paul Kane of the Superior
    Court of Justice, dated December 6, 2016.

REASONS FOR DECISION

[1]

The appellant, Carl Nichols, appeals from the judgment of Kane J. of the
    Superior Court of Justice granting partial summary judgment to the respondents
    Scott DAscenzo and related numbered companies. The judgment relates to two
    pieces of vacant land the respondents sought to purchase from the appellant.
    Between 2006 and 2013, the respondents made payments to the appellant totalling
    $168,727.74 with respect to the two properties, yet to date title to the
    properties remains with the appellant.

[2]

The motion judge ordered rescission and damages with respect to one of
    the properties (Petting Zoo) and issued a certificate of pending litigation,
    with a view to potential transfer to the respondents, with respect to the other
    property (Lot 511).

[3]

On appeal, the appellant seeks to overturn the motion judges decision
    on the basis that the respondents defaulted on their debt obligation and
    therefore forfeited their interest in both properties. In the alternative, the
    appellant seeks to vary the judgment and alleges the motion judge erred in
    determining the appropriate remedies for both properties.

[4]

In 2006, the respondents sought to purchase from the appellant (a) the
    appellants shares in 1702620 Ontario Inc. (170) which owned a commercial
    plaza called Buckhorn Plaza, (b) the Petting Zoo vacant land, and (c) the Lot
    511 vacant land.

[5]

The parties agreed on the terms of the share purchase agreement pursuant
    to which Nichols sold his shares in 170 to DAncezno for $280,000. This
    transaction was completed and is not a subject of this appeal.

[6]

The share purchase agreement included the terms by which Nichols was to
    sell the Petting Zoo and Lot 511 to DAscenzo. In addition to various monetary
    terms, the agreement contemplated that the bulk of the purchase price was to be
    the subject of a vendor take back mortgage. It also required that the purchase
    of Lot 511 would be completed simultaneously with the closing of the share
    purchase transaction which had a closing date of November 14, 2006. This did
    not happen because Nichols did not take the required steps to have Lot 511
    severed pursuant to the
Planning Act
, R.S.O. 1990, c. P.13. No
    mortgage was ever registered on title to either property.

[7]

The share purchase transaction closed on November 24, 2006. Since the
    closing, as of January 2013, DAscenzo had made payments to Nichols towards the
    purchase of the Petting Zoo and Lot 511 totalling $168,727. DAscenzo did not
    make any further payments after January 2013. After that point, DAscenzo
    demanded clear title to the Petting Zoo because he alleged he had paid for it
    in full, and said he would pay the remaining $27,500, owing for Lot 511, when
    Nichols cleared up the title issues relating to the severance of that property.

[8]

Nichols refused to convey title to the Petting Zoo and informed
    DAscenzo he was foreclosing on Lot 511. To date, Nichols has not transferred
    title to either property to DAscenzo and Nichols only recently has sought the
    required severance for Lot 511. Nichols continues to be the legal owner of both
    properties.

[9]

The respondents commenced an action and brought a motion for summary
    judgment which was granted in part on the terms set out above. The motion judge
    referred other issues on for a trial and stayed seized of the proceedings.

[10]

The appellant appeals against the partial summary judgment, essentially
    on four grounds.

[11]

First, the appellant contends that the issues determined by the motion
    judge were not appropriate for resolution on a summary judgment basis; a trial
    was required.

[12]

We do not accept this submission. There was a comprehensive record
    before the motion judge including all the relevant commercial documents and
    extensive affidavit evidence and cross-examinations thereon from the parties
    and their joint lawyer. As we have said, the motion judge granted summary
    judgment on some issues and referred others on for a trial. We see no error in
    his division of the various issues in this respect.

[13]

Second, the appellant submits that the motion judge erred by not
    concluding that the respondents had breached the contract by not continuing their
    monthly payments towards the mortgage.

[14]

We are not persuaded by this submission. The reason DAscenzo stopped
    making payments in 2013 was that Nichols had taken no steps to obtain severance
    of Lot 511. As explained by the motion judge:

Mr. Nichols admitted on his examination for discovery that even
    though the plaintiffs were making monthly amortized payments of the combined
    purchase prices of the two properties, with interest, he failed to instruct Mr.
    Merla [the parties lawyer] to proceed with the severance application as to the
    511 Land.

Mr. Nichols 10 years later in October of 2016 has still not
    obtained the required severance of the 511 Land.

[15]

Third, the appellant asserts that the motion judge erred in granting
    rescission of the agreement to purchase the Petting Zoo. The appellant says
    that this component of his order is inconsistent with his order of specific performance
    of the purchase of Lot 511.

[16]

We disagree. Although rescission is probably the wrong legal term (it
    is evident from the motion judges reasons that he meant repudiation), it was
    clearly open to the motion judge, on the question of remedy, to treat the two
    properties separately and to determine that DAscenzo, after spending so much
    money over many years towards the purchase of the Petting Zoo, was entitled to
    treat the contract as at an end and to obtain damages as restitution of monies
    paid.

[17]

Fourth, and relatedly, the appellant argues that the motion judge erred
    by granting specific performance of the Lot 511 purchase. He says that DAscenzo
    never was willing, able and ready to close this component of the transaction.

[18]

We do not accept this submission. The motion judge did not order
    specific performance. He found that DAscenzos entitlement to specific
    performance of Lot 511 was established except for the crucial issue of
    severance which he determined will have to be established in a trial as to
    that issue. Accordingly, he directed that a Certificate of Pending Litigation
    be registered on title to Lot 511.

[19]

In the end, we agree with the respondents summary in their factum, at
    paras. 4 and 6:

The agreement for Lot 511 was supposed to close simultaneously
    with a share purchase agreement signed by the parties and did not do so because
    of the Appellants conduct. The transaction did not close at the originally
    stipulated date as deficiencies on title were discovered.  The Appellant was
    responsible for correcting the deficiencies in order to provide clear title to
    the Respondents.  The Appellant failed to correct them in a timely manner,
    despite a separate agreement to extend closing being executed to provide time
    for same, and despite the Appellants acknowledgement of his obligation to do
    so. Once the said deficiencies were corrected, title was supposed to be
    conveyed to Mr. DAscenzo. To this day, the Appellant has not fulfilled his
    obligations.

The Appellants position is factually and legally incorrect and
    would lead to a patently and manifestly unfair result.  The Appellant argues
    that his own breach should entitle him to the forfeiture of the monies paid by
    the Respondents over six years to the tune of over $168,000.00. In addition,
    the Appellant argues that he should also retain title to both properties.

[20]

The appeal is dismissed. The respondents are entitled to their costs of
    the appeal fixed at $16,000, inclusive of disbursements and HST.

J.C. MacPherson J.A.

E.A. Cronk J.A.

M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: D'Ascenzo v. Nichols, 2017 ONCA 604

DATE: 20170719

DOCKET: C63100

MacPherson, Cronk and Benotto JJ.A.

BETWEEN

Scott Andrew D'Ascenzo, 1702620 Ontario Inc. and
    1686977 Ontario Inc.

Plaintiffs
    (Respondents/

Appellants by way of
    cross-appeal)

and

Carl Albert Nichols

Defendant (Appellant/

Respondent by way of
    cross-appeal)

Marcus Boire, for the appellant/respondent by way of
    cross-appeal

Jean-François Laberge and Manou Ranaivoson, for the
    respondents/ appellants by way of cross-appeal

Heard: In Writing

On cross-appeal from the judgment of Justice Paul Kane of
    the Superior Court of Justice, dated December 6, 2016.

REASONS FOR DECISION

[1]

By reasons dated July 6, 2017, we dismissed the appeal in this case.

[2]

On the respondents cross-appeal, we allowed Mr. Nichols (who we will
    continue to refer to as the appellant) to file a factum no later than July 14,
    2017. He has filed the factum.

[3]

The parties agreed that the cross-appeal could then proceed on the basis
    of the record and facta.

[4]

The underlying facts of the parties contractual relationship are set
    out in the previous judgment on the appeal.

[5]

On the cross-appeal, the respondents raise four discrete and relatively
    minor issues.

[6]

First, the respondents contend that the motion judge erred by denying
    the return of any interest paid relating to the Petting Zoo based on a finding
    that the interest was paid to delay the closing. The motion judge found that
    this delay was a benefit that the respondents obtained.

[7]

We agree with this submission. The interest was to be paid, whether or
    not the closing was delayed, because it was a component of the original
    purchase price. Moreover, as found by the motion judge, it was the appellant
    who committed the pivotal breach of the contract. The respondents are entitled
    to restitution of the interest paid.

[8]

Second, the respondents submit that the motion judges calculation of
    principal owed to them should have been $142,796, not $122,246.

[9]

We disagree. We see no error in the motion judges mathematics leading
    to his ultimate calculation.

[10]

Third, the respondents assert that the motion judge erred by not
    granting prejudgment interest on the damages awarded for the Petting Zoo.

[11]

We agree. The motion judge awarded prejudgment interest with respect to
    the Lot 511 issue. We think it was probably just an oversight that he did not
    make a similar order with respect to the Petting Zoo. In any event, the respondents
    are entitled to prejudgment interest by virtue of s. 128(1) of the
Courts
    of Justice Act
, R.S.O. 1990, c. C. 43.

[12]

Fourth, the respondents contend the motion judge erred by not dealing
    with and awarding $1,955.03 representing the amount paid by the respondents for
    municipal property taxes on the Petting Zoo.

[13]

We agree. Although the motion judge listed this as an issue in paragraph
    9(b) of his reasons, he did not return to it. Since those taxes were paid by
    the respondents with a view to an eventual closing of the sale of the property,
    the respondents are entitled to a return of the money, together with pre- and
    post-judgment interest, in light of the failure to close.

[14]

The respondents have been successful on three of the four issues in the
    cross-appeal. They are entitled to their costs of the cross-appeal fixed at $3,000,
    inclusive of disbursements and HST.

J.C. MacPherson J.A.

E.A. Cronk J.A.

M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Dittman v. Aviva Insurance Company of Canada, 2017
    ONCA 617

DATE: 20170724

DOCKET: C62970

Sharpe, Lauwers and Roberts JJ.A.

BETWEEN

Erin Dittman

Plaintiff

(Respondent on Appeal)

and

Aviva Insurance Company of Canada

Defendant

(Appellant on Appeal)

Kadey Schultz and Christopher Macauley, for the
    appellant

Michael Gauthier and James Ross, for the respondent

Heard and released orally: July 21, 2017

On appeal from the judgment of Justice R.D. Gordon of the
    Superior Court of Justice, dated October 24, 2016.

REASONS FOR DECISION

[1]

The respondent sustained serious burns to her lower body when the entire
    contents of a coffee cup she ordered at a McDonalds drive-through spilled as
    she attempted to transfer the cup from the drive-through window to the cup
    holder in her vehicle.

[2]

The motion judge determined that the respondent was impaired as a result
    of an accident as defined in the
Statutory Accident Benefits Schedule (O.
    Reg 34/10, Effective September 1, 2010)
and accordingly that she entitled to
    statutory accident benefits in accordance with her insurance policy.

[3]

In our view, the motion judge did not err in his application of the SABs
    causation test. As the motion judge pointed out, at para. 13, and as elaborated
    in para. 28 of the respondents factum, the use and operation of the respondents
    vehicle was a direct cause of the respondents injuries. We refer here in
    particular to the following passage from para. 13 of the motion judges reasons
    where he states as follows:

I come to this conclusion because but for her use of the
    vehicle she would not have been in the drive-through lane, would not have
    received the coffee cup while in the seated position, would not have been
    transferring the coffee cup to the cup holder across her body, and would not
    have had the coffee spill on her lap. In addition, but for her being seated and
    restrained by a lap and shoulder harness she may have been able to take evasive
    action to avoid or lessen the amount of coffee that was spilled on her.

[4]

We are satisfied that these findings are
amply
    justified on the evidence, and that they meet the requirements of the direct
    causation test prescribed by s. 3 of the SABs regulation as this court laid out
    in
Greenhalgh v. ING Halifax Insurance
, [2004]
    O.J. No. 3485 (C.A.), at para 38, and in
Downer v. Personal
    Insurance Co.
, 2012 ONCA 302, at paras. 34, 38 and 39.

[5]

We are also satisfied that, as pointed out in the respondents factum, the
    restraint of the seatbelt increased the respondents exposure to the scalding
    liquid and thereby increased the level of her impairment.

[6]

There was no intervening act, as that phrase had been interpreted in the
    case law, in the circumstances of this case.

[7]

As pointed out in
Salamone

v. Aviva Canada
, 2016 OFSCD
    No 191, at para. 31,
the issue is not, what was
    the triggering event of the incident, but rather, what caused
    the impairment
. In this case, the use of a running motor vehicle in
    gear to access the drive-through and the seatbelt restraint were direct causes
    and dominant features of the impairment the respondent suffered.

[8]

Accordingly, the appeal is dismissed.

[9]

Costs to the respondent fixed at $12,000, inclusive of disbursements and
    taxes.


COURT OF APPEAL FOR ONTARIO

CITATION: Downing Street Financial Inc. v. Harmony
    Village-Sheppard Inc., 2017 ONCA 611

DATE: 20170720

DOCKET: M48044 (C63937)

Tulloch J.A. (In Chambers)

BETWEEN

Downing Street Financial Inc., in Trust

Applicant (Respondent in Appeal)

and

Harmony Village-Sheppard Inc., as General Partner
    of Harmony Village-Sheppard LP, and City Core Developments Inc.

Respondents (Respondents in Appeal)

David P. Preger and Michael J. Brzezinski, for the
    moving party, Court-appointed Receiver, Rosen Goldberg Inc.

Barbara Green, for the responding parties, Fortress
    Shepard (2016) Inc., Fortress Real Developments and Derek Sorrenti

Raymond M. Slattery, for the responding party,
    Purchasers

Mitchell Wine, for the responding party, Jozef Zubrzycki

Sean Zweig, for the responding party, the Successful
    Bidders

David T. Ullmann, for the responding party, Downing
    Street Financial Inc., in Trust

Heard: June 29, 2017

Tulloch JA:

A.

Introduction

[1]

The moving party on this motion was Rosen Goldberg Inc., the receiver in
    the underlying insolvency proceedings (the Receiver). The Debtor is Harmony
    Village-Sheppard LP. The responding parties on the motion were Fortress Shepard
    (2016) Inc., Fortress Real Developments and Derek Sorrenti (collectively,
    Fortress).

[2]

The Receivers purpose in bringing this motion was to defeat Fortress
    appeal from a court order approving an asset sale (the Approval Order) and
    thereby to secure that sale, for which the closing date was June 30, 2017.
    Fortress had filed a Notice of Appeal in this court, dated June 21, 2017, in
    which it had sought to appeal the Approval Order, asserting that this court had
    jurisdiction solely based on s. 193(c) of the
Bankruptcy and Insolvency Act
,
    R.S.C. 1985, c. B-3 (the
BIA
).

[3]

I heard the motion on June 29, 2017, and, given its urgency, I granted
    the motion orally and notified the parties that written reasons would follow.
    These are my written reasons.

B.

Background

(1)

The Property and the Stakeholders

[4]

Before its insolvency proceedings, the Debtor had been developing some
    real estate in Toronto (the Property) as a residential condominium project,
    marketed to seniors. At the time of the Receivers appointment, the Debtor had
    pre-sold 223 units in this project to various purchasers (the Unit
    Purchasers), although construction had not yet begun.

[5]

The Property is subject to three encumbrances. Downing Street Financial
    Inc. (DSFI) holds the first in priority, securing payment of approximately
    $20 million. The second in priority, held by JYR Capital Mortgage Investment
    Corp. and Li Ruixia as tenants in common, secures payment of approximately
    $1,395,000. The third encumbrance is a syndicated mortgage involving 542
    investors. According to Fortress, Sorrenti and a related company are the
    trustees of this syndicated mortgage.

(2)

The Approval Order

[6]

The Superior Court judge who reviewed the sale (the motions judge)
    made the Approval Order on June 19, 2017, and issued a brief endorsement on the
    same date. The Approval Order, granted in response to a motion by the Receiver,
    approved the Receivers sale of the Property to Pinnacle International One
    Lands Inc. (Pinnacle).

[7]

The sale to Pinnacle was the culmination of a court-approved sale process
    under the Receivers supervision in which Pinnacle and Fortress had competed
    for the Property.

(3)

The Stalking Horse Bid

[8]

Pursuant to the Receivers appointment order, dated January 20, 2017, the
    Receiver conducted a stalking horse sale process, in which a sale agreement
    between the Receiver and Fortress would constitute the stalking horse bid
    (the Stalking Horse Bid). The Stalking Horse Bid would have required Fortress
    to assume the Debtors agreements of purchase and sale with the Unit
    Purchasers. The Stalking Horse Bid also was a credit bid.  On closing, the
    first mortgagee, DSFI, would have been paid in full, while the purchaser would
    have assumed the existing debt secured under the second and third charges.

[9]

The Receiver and Fortress each provided different explanations for why
    Fortress repudiated the Stalking Horse Bid. However, the parties agreed in
    their submissions that, beyond the deal discussed in the next paragraph, the
    stalking horse process did not attract any offers for the Property.

[10]

According to Fortress, Fortress always had intended to find a developer
    to build the condo project, and it ultimately had negotiated a sale of the
    Property to Pinnacle (the Pinnacle-Fortress APS). The Pinnacle-Fortress APS
    required Pinnacle to assume the terms of the Stalking Horse Bid. Fortress
    advised the Receiver of its deal with Pinnacle, and the Receiver acquiesced on
    the condition that the sale price of the Pinnacle-Fortress APS would not exceed
    the Stalking Horse Bids sale price, so that Fortress intermediary role would
    not cost the Debtors estate any value.

[11]

However, in Fortress narrative, the Stalking Horse Bid failed because,
    on April 4, 2017, only three days before the court-approval hearing for the
    Pinnacle-Fortress APS, Pinnacle informed Fortress that it no longer was willing
    to assume the contracts with the Unit Purchasers. Fortress informed the
    Receiver of this problem, and the Receiver refused to save the deal by amending
    the requirements of the Stalking Horse Bid.

[12]

In the Receivers version, Fortress told the Receiver on April 6, 2017,
    the day before the hearing to approve the Pinnacle-Fortress APS, that Fortress would
    not complete the purchase of the Property pursuant to the Stalking Horse Bid
    because Fortress no longer was willing to assume the Unit Purchasers contracts.

(4)

Subsequent Offers and Negotiations

[13]

According to the Receiver, its subsequent efforts produced three offers
    for the Property. One of them, from an offeror whom the Receiver does not
    identify, which involved a price that the Receiver found unacceptably low. The
    other two offers were from Fortress and from Pinnacle, respectively. Fortress
    offer, dated April 13, 2017, involved the same price as the Stalking Horse Bid
    and similar financial terms. The important differences were that Fortress would
    not assume the contracts with the Unit Purchasers, but that Fortress deposit
    would be slightly higher. Pinnacle communicated its offer to the Receiver
    several days later. The Receiver accepted Pinnacles offer on May 2, 2017, and informed
    Fortress of this acceptance on May 3, 2017.

[14]

The Receiver asserts that it had legitimate concerns regarding Fortress
    financial capacity. The Receivers motion record includes some e-mail
    correspondence raising such concerns. The correspondence suggests that Fortress
    was unwilling to provide a deposit large enough to satisfy the Receiver.

(5)

Fortress Opposition to Pinnacles Offer

[15]

Fortress advised the Receiver on April 28, 2017 that it would oppose any
    deal between the Receiver and Pinnacle. Fortress alleged that Pinnacle had
    improperly exploited its earlier negotiations with Fortress to develop its own
    direct offer to the Receiver.

[16]

On June 16, 2017, several days before the scheduled hearing of the
    Receivers motion for approval of Pinnacles bid, Fortress submitted to the
    Receiver a new, third, offer to purchase the Property. This offer relied on a
    financing commitment from another party, MarshallZehr, to cover the cash
    component of Fortress offer, all closing costs, and the costs of the financing.
    During the hearing of this motion, counsel for Fortress conceded that the
    Receiver had correctly identified several conditions of the MarshallZehr
    financing that would limit Fortress ability to obtain additional financing
    from other parties. However, counsel for Fortress asserted that such formal
    conditions would not be a practical obstacle to the Fortress offers
    feasibility.

C.

Fortress Appeal

[17]

After the granting of the Approval Order on June 19, 2017, Fortress
    filed a Notice of Appeal in this court, dated June 21, 2017. The relief that
    Fortress seeks from this court is the following: an order setting aside the
    Approval Order, and an order directing the Receiver to accept Fortress June
    16, 2017 offer that would also serve as an approval and vesting order for a
    sale on that offers terms.

[18]

Based on the Notice of Appeal and Fortress submissions on this motion,
    the essence of Fortress planned argument on appeal would seem to be that the
    motions judge did not apply the right legal test when making the Approval
    Order; his brief endorsement said that he approved Pinnacles bid because it
    was the best offer to purchase the Property from the point of view of the
    majority of stakeholders. In oral argument for this motion, counsel for
    Fortress suggested that this language in the motions judges endorsement
    demonstrates that the motions judge did not correctly apply the relevant
    principles from
Royal Bank v. Soundair Corp.
(1991), 4 O.R. (3d) 1
    (C.A.).

[19]

The Notice of Appeal relies only on s. 193(c) of the
BIA
in support
    of this courts jurisdiction to hear the Appeal. Fortress explicitly disclaims
    reliance on s. 193(e), the provision for leave to appeal, by asserting in the
    Notice that it does not require leave to appeal. Rule 31 of the
Bankruptcy
    and Insolvency General Rules
, C.R.C., c. 368, precludes reliance by an
    appellant on s. 193(e) of the
BIA
when that appellants Notice of
    Appeal does not include the relevant application for leave to appeal.
    Therefore, jurisdiction pursuant to s. 193(e) is unavailable in this case.

[20]

Fortress chose to rely exclusively on s. 193(c) despite the clear
    direction in recent case law in favour of narrow construal of the rights to
    appeal in ss. 193(a) to (d) of the
BIA
:
Re Enroute Imports Inc.
,
    2016 ONCA 247, 35 C.B.R. (6th) 1, at para. 5. As Brown J.A. explained in his
    chambers decision in
2403177 Ontario Inc. v. Bending Lake Iron Group Ltd.
,
    2016 ONCA 225, 396 D.L.R. (4th) 365, at paras. 50-53, these automatic rights of
    appeal create disharmony between the
Companies Creditors Arrangement Act
,
    R.S.C. 1985, c. C-36 (the
CCAA
) and the
BIA
because s. 13
    of the
CCAA
imposes a leave requirement for all appeals from orders
    made under that statute. Therefore, the goal of regulatory harmony between
    these two major insolvency statutes favours narrow construal of the
BIA
s
    automatic rights of appeal. This jurisprudential context, along with Fortress
    strategic decision not to seek leave to appeal, informed my decision on s.
    193(c).

D.

Analysis

(1)

Subsection 193(c) of the
BIA

[21]

Subsection 193(c) of the
BIA
provides a right to appeal to the Court of Appeal if
    the property involved in the appeal exceeds in value ten thousand dollars. As
    Blair J.A., in chambers, noted in
Business Development Bank of
    Canada v. Pine Tree Resorts Inc.
, 2013 ONCA
    282, 115 O.R. (3d) 617, at para. 17, a narrow construal of property involved
    in the appeal is necessary because otherwise the low quantum of this automatic
    right to appeal would make s. 193(e) practically redundant.

[22]

In
Bending Lake
, at para. 53, Brown J.A., summarizing prior case law,
    identified three kinds of order from which s. 193(c) would not grant a right to
    appeal: (i) orders that are procedural in nature; (ii) orders that do not bring
    into play the value of the debtors property; and (iii) orders that do not
    result in a loss. I will consider only the third category because doing so will
    suffice to resolve the s. 193(c) analysis.

(2)

Does the Approval Order Result in a Loss?

[23]

As Brown J.A. explained at para. 61 of
Bending Lake
, for an
    order to result in a loss in the relevant sense, the order in question must
    contain some element of a final determination of the economic interests of a
    claimant in the debtor.

[24]

Fortress is correct that, in
Bending Lake
, Brown J.A. relied on
    the fact that there was no competing bid for the disputed property, as well as
    the fact that there was an absence of any valuation of the debtors estate in
    the record before the motions judge:
Bending Lake
, at paras. 63-66.  In
    contrast, in this case, there were competing bids with different purchase
    prices.

[25]

Nevertheless, I do not accept that the Approval Order resulted in a loss
    in the relevant sense.

[26]

Although some of the factors on which Brown J.A. relied do not apply in
    this case, these distinctions do not defeat the broader reasoning of
Bending
    Lake
. I quote from para. 64 of
Bending Lake
at length:

The determination of whether the property involved in the
    appeal exceeds ten thousand dollars is a fact-specific one. In order to bring
    itself within s. 193(c), the [appellant] must do more than make a bald
    allegation of improvident sale. This is real-time insolvency litigation in
    which delays in the proceeding can prejudice the amounts fetched by a receiver
    on the realization process.
The [appellant] must
    demonstrate some basis in the evidentiary record considered by the motion judge
    that the property involved in the appeal would exceed in value $10,000, in the
    sense that the granting of the Approval and Vesting Order resulted in a loss of
    more than $10,000 because the Receiver could have obtained a higher sales price
    for the Debtors property.
Bald assertion is not sufficient, otherwise a
    mere bald allegation of improvident sale in a notice of appeal could result in
    an automatic stay of a sale approval order under
BIA
s. 195 as the
    appellant pursues its appeal. [Emphasis added.]

[27]

I focus here on the requirement for some basis in the evidentiary
    record to support an assertion that the impugned sale would cause a loss to
    the Debtors estate, as opposed to a bald assertion to that effect. In its
    submissions before me, the primary basis for Fortress assertion that the
    impugned order might result in a loss is the fact that the nominal purchase
    price in Fortress offer was higher than the nominal purchase price in
    Pinnacles offer.

[28]

The passage that I have quoted from
Bending Lake
casts the
    issue as whether the Receiver could have obtained a higher sales price for the
    Debtors property. However, given the diversity among financing structures for
    commercial sale agreements, I do not think that I betray the spirit of Brown
    J.A.s reasons by reading his comments to contemplate a more substantive
    assessment of competing offers than a mere comparison of formal prices.

[29]

On this motion, Pinnacle presented compelling evidence to suggest that
    the practical value of its offer exceeded that of Fortress offer.

[30]

First, the deposit in Pinnacles offer was much higher than the deposit
    in Fortress offer. This factor gains salience from the correspondence that
    demonstrates that, during the sale process, Fortress resisted the Receivers
    demands to increase the deposit in its offer substantially.

[31]

Second, the Pinnacle offer was entirely in cash, whereas only
    approximately 40% of the Fortress offer was in cash. Fortress planned to fund
    the rest of its offer through credit. This factor gains salience from the
    structure of the Debtors pre-existing secured debt. Fortress explains in its
    submissions that Fortress (more specifically, Sorrenti), along with a related
    company, is trustee for the 542 investors who collectively hold the beneficial
    interest in the Debtors third encumbrance, a syndicated mortgage. Fortress
    further submits that its ordinary business is in real estate consulting and
    arranging financing for real estate development projects. Fortress submissions
    before me did not assuage the concern that the effect of the Fortress offer, if
    accepted, would have been to allow Fortress to preserve its business interest
    in the Property as a development project at the risk of providing less recovery
    for other creditors, including the investors for whom Sorrenti acts as trustee.
    Indeed, Fortress explained in its submissions that it entered into a Joint
    Venture Agreement with another firm in the hope, based on anticipated profits,
    of providing full repayment of the second and third mortgages on the Property.

[32]

Third, Fortress conceded in its submissions that its offer would not
    have involved assuming the Unit Purchasers contracts. Instead, it promised a
    friends and family VIP event for the Unit Purchasers and opportunities for
    first access and special pricing. This concession undermines Fortress
    assertion that the Stalking Horse Bid would have succeeded had it not been for
Pinnacles
refusal to assume the Unit Purchasers
    contracts.

[33]

Fourth, the Receivers Report states that the highest-ranking secured
    creditor, DSFI, supported Pinnacles bid over Fortress, despite the fact that
    both offers purported to provide full recovery to DSFI.

[34]

Fifth, Fortress does not dispute the Receivers assertions that the
    stalking horse process attracted no bidders other than Fortress and Pinnacle
    and that the Receivers subsequent efforts procured only one other offeror, who
    offered a price that was unacceptably low and that caused concern that the
    markets valuation of the Property might be much lower than Pinnacles.

[35]

Although Fortress argument for the application of s. 193(c) is slightly
    more plausible than that of the appellant in
Bending Lake
, Fortress
    has not demonstrated a sufficient basis in the record that was before the motions
    judge for me to conclude that there is an arguable case that the Receiver could
    have obtained a better deal than Pinnacles.

[36]

Therefore, s. 193(c) did not grant a right of appeal to Fortress because
    the impugned order did not result in a loss or gain in the relevant sense.

(3)

Leave to Appeal (s. 193(e))

[37]

As I noted earlier in these reasons, Fortress did not meet the
    procedural requirements for consideration of an application for leave to
    appeal. Therefore, what follows is
obiter dicta
. However, since both
    parties made alternative submissions on s. 193(e), I will address the issue
    briefly.

[38]

Although leave to appeal pursuant to s. 193(e) is discretionary and
    must be exercised in a flexible and contextual way, the prevailing
    considerations are whether the proposed appeal :

(i) raises an issue of general importance to the practice in
    insolvency matters or the administration of justice as a whole;

(ii) Is it
prima facie
meritorious; and

(iii) Would it unduly hinder the progress of the insolvency
    proceedings:
Enroute
, at para. 7.

[39]

I will address the second criterion, i.e., the
prima facie
merit,
    first. As I mentioned above, the Notice of Appeal and Fortress submissions on
    this motion suggested that the primary ground for Fortress appeal was that the
    motions judge applied the law incorrectly when he approved Pinnacles bid
    because it was the best offer to purchase the Property from the point of view
    of the majority of stakeholders.

[40]

The allegation was that the motions judge misapplied the criteria from
Soundair
for judicial review of a receivers sale of property.
Soundair
, at p.
    6, identifies four duties of a judge reviewing a receivers sale. Those duties
    are to:

(1) consider whether the receiver has made sufficient effort
    to get the best price and has not acted improvidently;

(2)
consider the interests of all
    parties
;

(3) consider the efficacy and integrity of the process by
    which offers are obtained; and

(4) consider whether there has been unfairness in the working
    out of the process. [Emphasis added.]

Furthermore, at p. 7,
Soundair
prescribes a
    deferential standard of review in this court.

[41]

Given this framework and the facts of the sale process that I summarized
    above, the argument that the motions judge misinterpreted or misapplied the
Soundair
test is implausible. The motions judges comment that the Pinnacle offer
    was best from the point of view of the majority of stakeholders does not
    indicate a failure to have
considered
Fortress
    interests. Therefore, the appeal was
prima facie
meritless.

[42]

I will address the other factors more briefly. This appeal did not raise
    any issue of general importance to insolvency practice or the broader
    administration of justice; it was a fact-specific dispute about the propriety
    of a receivers sale. Additionally, given the difficulty that the Receiver had faced
    in finding prospective purchasers other than Pinnacle and Fortress, a hearing
    of the appeal probably would have unduly hindered the Debtors insolvency
    proceedings.

E.

Disposition

[43]

These are my reasons for my granting of the Receivers motion on June
    29, 2017. The Receiver did not seek an order for costs of the motion.

Released: MT JUL 20 2017

M. Tulloch J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Jaffer v. Pardhan, 2017 ONCA 612

DATE: 20170721

DOCKET: C62857

Sharpe, Lauwers and Roberts JJ.A.

BETWEEN

Yasmin Jaffer
and
Alnoor Pardhan

Plaintiffs

(
Appellants
)

and

Naureen Pardhan,
Yasmin
    Jaffer
and Y.Y. Annette Choy

Defendants

(Respondents)

Ian Furlong, for the appellants

Brendan Haynes and Benjamin Lee, for the respondent,
    Yasmin Jaffer

Heard and released orally: July 18, 2017

On appeal from the judgment of Justice P.W. Sutherland of
    the Superior Court of Justice, dated October 5, 2016.

REASONS FOR DECISION

[1]

The appellant Yasmin Jaffer appeals a summary judgment dismissing her
    claim against herself for statutory vicarious liability as the owner of the
    vehicle involved in an accident in which she suffered personal injury.

[2]

The appellants claim is based on the deemed statutory liability imposed
    by the
Highway Traffic Act,
R.S.O.
    1990, c. H.8
(the Act)
,

s. 192(2) on the owner of the vehicle.

[3]

The appellant was a passenger in the vehicle she owned that was being
    driven with her consent by her daughter at the time of the accident. In
    asserting a claim against herself as the vehicles owner, she relies on a line
    of authority holding that s. 192(2) of the Act confers a statutory right that
    overcomes the common law rule that a person cannot sue him or herself: see
Dionisi
    v. Dionisi
(1983), 42 O.R. (2d) 597.

[4]

In her statement of claim, the appellant pleads that the accident
    occurred in the laneway of a private property parking lot located at 7970
    Kennedy Road, in the Town of Markham, in the Regional Municipality of York (the
    parking lot).

[5]

The motion judge granted summary judgment dismissing the claim on the
    ground that the accident did not occur on a highway as defined in the Act and
    that accordingly s. 192(2) of the Act had no application.

[6]

On this appeal, the appellant seeks to introduce fresh evidence
    indicating that the accident occurred at the Unionville GO Station parking lot
    and that, as the parking lot and the laneway are used by the general public,
    there is a triable issue as to whether the
Act
applies.

[7]

In our view, the motion to admit fresh evidence must be dismissed for
    the following reasons.

[8]

First, it is inconsistent with the position taken by the appellant in her
    statement of claim.

[9]

Second, the evidence clearly could have been available at the time the
    motion for summary judgment was heard. We do not accept the position of the
    appellant that the evidence should be admitted on appeal on the ground that she
    was taken by surprise when this issue was raised on the summary judgment
    motion. The issue arose entirely because of the appellants own pleading and
    the motion judge cannot be faulted for deciding the case on the basis of a
    point that was raised at the motion.

[10]

Finally,
    we note that the appellant did not bring the proposed fresh evidence forward by
    following the prescribed procedure of bringing a motion to adduce fresh
    evidence but rather simply included the affidavits relied on in the Exhibit Book.

[11]

We
    add that given the involvement of the two fully insured defendants, the fact
    that the appellant did attempt to sue herself, and the availability of
    underinsured coverage, it is difficult to see how the appellant would suffer
    any practical prejudice from having the claim against herself dismissed at this
    point.

[12]

Accordingly,
    the appeal is dismissed.

[13]

Costs
    to the respondent fixed in the amount agreed to by the parties, namely $ 7500,
    inclusive of taxes and disbursements.

Robert J. Sharpe
    J.A.

P. Lauwers J.A.

L.B. Roberts
    J.A.


WARNING

THIS IS AN APPEAL UNDER THE

a.

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: K.F. v. Family and Children's Services of the
    Waterloo Region, 2017 ONCA 573

DATE: 20170705

DOCKET: C63291

Sharpe, Lauwers and Miller JJ.A.

BETWEEN

K.F. and D.T.

Appellants

and

Family and Childrens Services of Kitchener
    Waterloo

Respondents

Gloria Ichim, for
    the appellants

Jeffrey Boich, for the respondents

Heard: June 29, 2017

On appeal from the order of Justice G.A. Campbell of the Superior
    Court of Justice, dated January 3, 2017, dismissing and appeal from the order
    of Justice P.J. Borghesan of the Ontario Court of Justice dated December 1,
    2015.

REASONS FOR DECISION

[1]

This is an appeal from an order of a Superior Court judge dismissing an
    appeal from an order of the Ontario Court of Justice making an order of Crown
    wardship with no access by either parent. The child was apprehended at the age
    of eight weeks at the same time as the apprehension of three of the appellants
    other children. The appellant has a long-standing history with the respondent.
    The immediate reason for the apprehension was that the older children expressed
    a fear of violence by the appellants then partner, the father of the child who
    is the subject of this appeal. The child has now been in the custody of
    prospective adoptive parents for approximately four years.

[2]

In oral submissions, counsel for the appellant effectively abandoned the
    appeal from the order of Crown wardship. We add that after careful review of
    the matter, including the written arguments made in the appellants factum, we
    have concluded that there was no error on the part of the trial judge or on the
    part of the Superior Court Appeal Judge that would justify this Court in
    disturbing the order of Crown wardship.

[3]

Accordingly, we are left with the issue of access.

A.

Fresh evidence

[4]

Fresh evidence in child protection matters is contemplated by the
Child and Family Services Act
,
R.S.O. 1990, c. C.11
,
    s. 69(6). The test for admission is set out in
Catholic Childrens Aid
    Society of Metropolitan Toronto v. C.
M.
,
[1994] 2 S.C.R. 165 at
    190
:

(a)

could the evidence
    have been previously adduced;

(b)

is the evidence
    highly relevant;

(c)

is the evidence
    potentially decisive to a best interest determination; and

(d)

is the evidence
    credible.

[5]

The respondent seeks to introduce the affidavit of a CAS services worker
    providing up to date information on the circumstances of the child. This is the
    type of evidence contemplated by s. 69(6) (see
Children's Aid Society of
    Owen Sound v. R.D
(2003),
44 RFL (5th) 43;

178 OAC 69 at paras 13 and 14)
and we
    admit it.

[6]

The appellant also seeks to introduce fresh evidence.

[7]

As the CAS fresh evidence relates the circumstances of the appellants
    access visits, in fairness, it is appropriate for us to admit the video
    recordings of the access visits tendered by the appellant.

[8]

The affidavit of Dr. Kathy Keefe is more problematic.. The appellant was
    being counselled by Dr. Keefe since January 2016 yet no notice of the
    appellants intention to file this affidavit was provided until less than two
    weeks prior to the hearing of the appeal. The appellant fails to provide an
    adequate foundation to assess Dr. Keefes expertise with respect to the general
    view she expresses regarding open adoption. However, with these qualifications
    in mind we have reviewed Dr. Keefes affidavit and explain below why it does
    not persuade us that this appeal must be allowed.

B.

Access

[9]

Section 59(2.1) provides that when a Crown wardship order is made, no
    order of access shall be made unless (a) the relationship between the person
    and the child is meaningful and beneficial to the child; and (b) the ordered
    access will not impair the childs future opportunities for adoption. The onus
    for establishing those factors rests with the party seeking access.

[10]

The trial judge found that there was no evidence that the relationship
    between the child and the appellant was beneficial to the child. That finding,
    made when the child was two and one half years old, is entitled to deference in
    this court. The Superior Court Appeal Judge carefully considered the issue of
    access and came to the same conclusion.

[11]

We are not persuaded that there is any basis for us to interfere with
    those findings.

[12]

The appellant points to certain alleged flaws in Dr. Amins assessment of
    K.F.s mental state, in particular, the fact that Dr. Amin unduly restricted
    the list of persons he interviewed. The trial judge was aware of the alleged
    deficiencies in Dr. Amins assessment and took them into account when
    considering his evidence. Where the trial judge accepted his evidence, she
    found corroboration in other evidence. This is an appeal, not a new trial, and
    we see no reason upon which we could reverse the finding of the trial judge.

[13]

The trial judge was also aware of the appellants complaints regarding
    the CAS workers. We are not persuaded that breakdown in the appellants
    relationship with the CAS workers was the fault of the CAS. Moreover, the issue
    is not who is at fault but would it be in the best interest of this child to
    have access to the appellant. The alleged misconduct of the CAS does not assist
    the appellant in proving that the test for access has been satisfied.

[14]

Neither the video of the exit visit nor the Keefe affidavit provide a
    sufficient basis to disturb the findings of the trial and appeal judges that
    the appellant failed to show that she should have access despite Crown wardship
    on the basis that the relationship between the person and the child is
    meaningful and beneficial to the child.

[15]

The video shows that the appellant is able to deal with the child in a
    calm and patient manner. Arguably, the video shows that the appellant would
    enjoy a continuing relationship with the child but that is not the legal test.
    In our view, the video falls well short of demonstrating that despite Crown
    wardship the relationship between the person and the child is meaningful and
    beneficial to the child.

[16]

Dr. Keefe has not seen the child and, as she herself points out, on the
    basis of her observation of the appellant, it is not possible to accurately
    evaluate the emotional significance and meaningfulness of the relationship for
    [the child], who is 4 years old. This significantly limits the force of her
    evidence on the issue we must decide. Any critique of Dr. Amins report could
    and should have been advanced at trial. Her opinion on the merits of open
    adoption amounts to a criticism of the current statutory regime and the
    presumption of no access that it creates. We are bound to apply the statute not
    Dr. Keefes opinion as to its merits.

C.

Disposition

[17]

Accordingly, the appeal is dismissed.

Robert J. Sharpe
    J.A.

P. Lauwers J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: L'Ouvrier Inc. v. Leung, 2017 ONCA
    589

DATE: 20170707

DOCKET: C63222

MacPherson, Cronk and Benotto JJ.A.

BETWEEN

L'Ouvrier Inc.

Plaintiff (Respondent)

and

Yen Ping Leung and Michael Cheng

Defendants (Appellants)

AND BETWEEN

Yen Ping Leung and Michael Cheng

Plaintiffs by Counterclaim (Appellants)

and

L'Ouvrier Inc., and Justine Fowler and Angus
    Bennett

Defendants by counterclaim (Respondents)

J. Gardner Hodder and Christopher Stienburg, for the
    appellants

David Barbaree, for the respondents

Heard: July 6, 2017

On appeal from the judgment of Justice Thomas R. Lederer
    of the Superior Court of Justice, dated December 7, 2016, with reasons reported
    at 2016 ONSC 6993.

REASONS FOR DECISION

[1]

The appellants, Yen Ping Leung and Michael Cheng, appeal from the
    judgment of Lederer J. of the Superior Court of Justice granting the respondents
    L'Ouvrier Inc., Justine Fowler, and Angus Bennett summary judgment and
    dismissing the appellants counterclaim.

[2]

The action related to a dispute involving the renewal of a commercial
    lease. In March 2011, L'Ouvrier and Leung entered into an agreement to lease a
    unit (to be used as a restaurant) in a building owned by Leung and managed by
    her husband Cheng (the Agreement).

[3]

The Agreement governed the relationship between the parties. It
    contained an option for renewal that could be exercised by L'Ouvrier so long as
    it was not in default of the terms of the Agreement and provided written notice
    of its intention to exercise the option. In addition to the rental payments of
    $3,300 per month, L'Ouvrier was also liable for additional rent to be paid in
    monthly installments calculated as the estimated proportionate share of direct
    costs associated with the occupancy and use of the premises.

[4]

In 2013, the appellants demanded a further amount in additional rent. L'Ouvrier
    took the position that this demand did not comply with the Agreement and
    refused to pay it. The matter was not resolved.

[5]

On September 25, 2015, L'Ouvrier sent the appellants son a text message
    essentially indicating that it wanted to exercise its renewal option under the
    Agreement. The appellants took the position that they would not renew the Agreement
    due to L'Ouvriers refusal to pay the additional rent demanded. They did not
    allege, then or later, that the notice of renewal was deficient or in
    non-conformity with the Agreement.

[6]

The parties tried to negotiate a renewal of the Agreement but negotiations
    broke down in November 2015. During this time period, L'Ouvrier was trying to
    sell its business to a third party.

[7]

In early 2016, L'Ouvrier commenced an action seeking specific
    performance, an injunction to prevent the appellants from interfering with its
    rights under the Agreement, and damages for losses caused by the appellants
    breach of contract.

[8]

L'Ouvrier then brought a motion for an injunction to prevent the
    appellants from evicting it on February 29, 2016. After a series of
    adjournments, the parties agreed to settle the matter. However, the appellants
    failed to honour the settlement.

[9]

In September 2016, the appellants locked the doors of the premises,
    posted a notice of distress, and took over L'Ouvriers liquor licence as a
    landlord in possession. As a result, L'Ouvriers planned sale of its restaurant
    business fell through.

[10]

L'Ouvrier then brought a motion for summary judgment seeking damages
    associated with the loss of its ability to sell the business, the money it paid
    in furtherance of an arbitration hearing and the settlement agreement, and the
    amount it paid as a security deposit at the beginning of the tenancy. L'Ouvrier
    also sought punitive damages.

[11]

The appellants brought a counterclaim alleging unpaid arrears, damage to
    rental property, and punitive damages.

[12]

The appellants unsuccessfully sought an adjournment of the hearing of
    the summary judgment motion.

[13]

The motion judge found that L'Ouvrier was not in breach of the
    Agreement. He also held that the appellants had breached the Agreement and
    engaged in conduct warranting the imposition of punitive damages.

[14]

The motion judge awarded these damages: $140,000 for loss of the ability
    to sell the business; $12,000 relating to the aborted settlement agreement;
    $6,837.49 relating to the arbitration; $5,000 for the security deposit, and
    $20,000 in punitive damages.

[15]

By reasons dated December 7, 2016, the motion judge granted judgment in
    favour of L'Ouvrier. The reasons did not refer to the appellants counterclaim.
    On a motion for directions made on March 2, 2017, the motion judge dealt with
    the counterclaim and dismissed it on the merits. His formal judgment deals with
    both the respondents claim and the appellants counterclaim.

[16]

The appellants appeal on several grounds.

[17]

First, the appellants contend that the motion judge erred by not
    granting an adjournment because they did not have a lawyer, were representing
    themselves, and speak Cantonese and are not fluent in English.

[18]

We disagree. The appellants had been represented by a lawyer earlier in
    the proceedings. They had also filed a notice of intent to act in person. An
    interpreter was present and participated in the hearing. The request for an
    adjournment came 90 minutes into the hearing. In these circumstances, the
    motion judges discretionary decision to refuse an adjournment was reasonable.

[19]

Second, the appellants submit that LOuvrier did not give proper written
    notice of its intent to exercise its renewal option.

[20]

We do not accept this submission. As we have said, the appellants did
    not advance this complaint at the time of the notice. Nor is there any
    suggestion that they did not receive actual notice of the intention to renew.
    Further, LOuvriers text message to the appellants son led to extensive
    negotiations between the parties. Accordingly, the appellants, by their
    conduct, acknowledged receiving notice of LOuvriers desire to renew the
    lease.

[21]

Third, the appellants claim that the motion judge erred in finding that LOuvrier
    was not in rent default of the Agreement, especially with regard to not paying
    the required additional rent.

[22]

We disagree. The motion judge carefully considered this issue and agreed
    with LOuvriers submission that it was not subject to additional rent in the amounts
    sought by the appellants. We see no error in his analysis.

[23]

Fourth, the appellants assert that the motion judge erred by failing to
    address the issue of non-rent default.

[24]

We disagree. The appellants position before the motion judge was that
    LOuvrier had breached the Agreement by not making sufficient rental payments.
    The appellants did not raise potential non-rent default issues on the summary
    judgment motion. They cannot do so now: see
Sawdon Estate v. Sawdon
,
    2014 ONCA 101, at para. 75.

[25]

Finally, the appellants claim that Cheng was not properly named as a
    party in these proceedings and that the motion judge erred in granting summary
    judgment against him.

[26]

We disagree. This issue was not raised in the court below. In addition
    to the fact that the appellants should not be permitted to raise on appeal an
    issue that was not before the motion judge, Cheng fully participated in the
    proceedings and never requested that he be removed as a named party.
    Accordingly, the motion judge committed no error in granting summary judgment
    against him.

[27]

The appeal is dismissed. The respondents are entitled to their costs of
    the appeal fixed at $18,000, inclusive of the costs of the motion before Pardu
    J.A. dated February 17, 2017, disbursements and HST. It is also ordered that
    the $75,000 paid into court to the credit of the proceeding be released to the
    respondents.

J.C. MacPherson J.A.

E.A. Cronk J.A.

M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Lala v. Basman Smith LLP, 2017 ONCA 614

DATE: 20170724

DOCKET: C63084

Sharpe, Lauwers and Roberts JJ.A.

BETWEEN

Pauline Lala

Respondent

and

Basman Smith LLP

Appellant

Kevin W. Fisher, for the appellant

Adam Pantel, for the respondent

Heard: July 17, 2017

On appeal from the order of Justice W. M. Matheson of the
    Superior Court of Justice dated November 17, 2016.

REASONS FOR DECISION

[1]

The appellant law firm appeals an order of the motion judge setting
    aside a report and certificate of assessment. The motion judge ruled that the
    assessment officer had erred by failing to grant an adjournment when the
    respondent client did not attend the first day of a scheduled five-day hearing
    due to a communication error by court staff and that, as a result, the officer deprived
    the respondent of her right to a fair hearing.

[2]

The respondent had initiated the assessment in February 2014 to question
    the appellants account. At a preliminary appointment on June 9, 2014, a
    mediation was scheduled at the respondents request for August 15, 2014 with a
    hearing to be scheduled pending the outcome of the mediation. The respondent
    was ordered to provide the appellant with a list of her issues or concerns
    regarding the account at least 30 days prior to the mediation. She failed to do
    so. The respondent then cancelled the mediation one day prior to its scheduled
    date.

[3]

Over the following months, the assessment office and the appellant made
    several unsuccessful attempts to contact the respondent to schedule a hearing
    date. Eventually, in February 2015, the office scheduled a five-day assessment
    hearing. Due to a backlog in the assessment office, the hearing was scheduled to
    begin more than one year later, on March 14, 2016. During the interim, the appellant
    made offers to settle to which the respondent did not respond.

[4]

The respondent retained counsel (not counsel on this appeal) two weeks
    prior to the scheduled date for the assessment hearing. Although her counsel
    communicated with the appellant, he was never entered as counsel of record.

[5]

On the Wednesday before the Monday on which the assessment hearing was
    to commence, respondents counsel called the assessment office. In her reasons,
    the assessment officer indicated that she had checked with the staff and
    determined that respondents counsel was told that the assessment would likely
    not proceed on the scheduled date. Respondents counsel insisted in his
    submissions that he was told that the assessment would not proceed. He faxed a
    letter to that effect to the appellant but the appellant insists that it did
    not receive the letter.

[6]

On the first day of the hearing, neither the respondent nor her counsel
    attended. The assessment officer waited 30 minutes and then called and left
    voicemail messages for the respondent. She then proceeded with the hearing. The
    respondent later returned the assessment officers telephone calls and advised
    the assessment officer that she had been told the hearing was cancelled and
    that she would have her lawyer call. The assessment officer then spoke to
    respondents counsel by telephone at approximately 3:00 p.m. and, after a
    lengthy discussion regarding the miscommunication, the assessment officer
    adjourned the remainder of the first day of hearing and asked counsel to attend
    the following day.

[7]

Respondents counsel attended the next day but the respondent did not.
    Counsel did not provide an adequate explanation for the failure of the respondent
    to attend. The assessment officer indicated that some accommodation would be
    made to permit counsel to cross-examine the witnesses who had already testified
    on the first day of the assessment. Counsel refused to discuss any
    accommodation and insisted that the matter had to be adjourned, which the
    appellant opposed. The assessment officer refused to adjourn the assessment hearing
    and respondents counsel left the hearing refusing to participate any further.

[8]

On March 18, 2016, the assessment officer issued oral reasons approving
    the appellants accounts and the report and certificate of assessment. On March
    29, 2016, respondents counsel issued and served a notice of motion to oppose
    confirmation of the report and certificate of assessment, returnable September
    22, 2016. The appellant wrote to respondents counsel requesting that the motion
    be heard at an earlier date and that respondents counsel provide materials in
    support of the motion. No materials were provided and that motion was not
    heard.

[9]

The respondent then retained new counsel and, on October 28, 2016, her
    new counsel issued a new notice of motion to oppose confirmation of the report
    and certificate of assessment. Respondents new counsel later indicated that
    the previously scheduled motion had been adjourned on consent but the
    appellant insists that it was not advised of any adjournment and had proceeded
    as if the motion was deemed abandoned. The motion to oppose confirmation was
    finally heard on November 17, 2016 and forms the subject of this appeal.

[10]

The
    motion judge ruled that the assessment officer had erred in refusing an adjournment
    and that the respondent had thereby been denied procedural fairness.

[11]

We
    respectfully disagree with that ruling. It is clear from the transcript that
    the assessment officer was alert to the problems created by the
    miscommunications of the assessment office. She was prepared to give the
    respondent and her counsel the benefit of the doubt on that issue, without
    making a specific finding that the respondents version is what actually
    happened. However, the fact that the respondent may have had an excuse for not
    attending the first day of the hearing did not automatically give rise to the
    right to an adjournment or a re-hearing of a five day assessment that had been
    scheduled a year earlier. The unfortunate miscommunication clearly had to be
    taken into account, but we agree with the assessment officer that the situation
    was not irretrievably lost because of that miscommunication.

[12]

In
    our view, the assessment officer quite properly based her decision to refuse an
    adjournment on her overall consideration of the conduct of both parties, of the
    inconvenience and cost of a further delay in the assessment, and of the steps
    that could have been taken to relieve any procedural unfairness to the
    respondent.

[13]

The
    assessment officer had to balance all of the circumstances to decide what to do
    in the interests of justice for both parties, given that the appellant was
    innocent of any miscommunication. The assessment officer was entitled to take
    into account the following additional facts in deciding whether to grant or
    refuse an adjournment: that the respondent had failed to ever provide a list of
    issues or concerns regarding the account to the appellant as she was ordered to
    do in June 2014; that the respondent had herself requested a mediation before a
    hearing date was set and then subsequently cancelled the mediation on one days
    notice; that she had only retained counsel two weeks prior to the scheduled hearing
    date and without him being entered as counsel of record; and that, in view of
    the backlog in the assessment office, there would be another lengthy delay in
    rescheduling the hearing: see
Igbinosun v. Law Society of Upper Canada
,
    2009 ONCA 484, 96 O.R. (3d) 138, at para. 37.

[14]

The
    assessment officer asked for submissions about what to do and suggested various
    options. However, respondent's counsel was not prepared to engage in any
    discussion or to entertain any possibility other than that the matter be
    adjourned and restarted from square one. He left refusing to participate any
    further in the process. In the assessment officers view, respondents counsel
    failed to articulate what, if any, prejudice would adversely impact his client if
    the hearing were to continue in some fashion.

[15]

This
    was not a case where the assessment officer was rigidly imposing one way of
    proceeding; on the contrary, she was clearly open to suggestions from the
    parties about what to do. In the circumstances of this case, it was reasonable
    for her not to accept the only option proposed by the respondent namely to adjourn
    and restart the hearing.

[16]

We
    note as well that this was an assessment hearing, not a trial, and that the
    proceedings are inquisitorial in nature. While adequate preparation is no doubt
    important, the fact that respondents counsel was only retained two weeks
    earlier and that he had apparently done no preparation before his telephone call
    to the assessment office just a few days before the scheduled date indicates
    that even had the matter proceeded, he would have done little preparation.

[17]

In
    our view, the assessment officers decision to refuse an adjournment was
    reasonable and the motion judge failed to give adequate deference to that
    decision.

[18]

Accordingly,
    we allow the appeal and set aside the motion judges order setting aside the report
    and certificate of assessment. The motion judge made no order as to costs due
    to the miscommunication from the assessment office and we do the same on
    appeal.

Robert J. Sharpe
    J.A.

P. Lauwers J.A.

L.B. Roberts
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Mendoza v. Active Tire & Auto Centre Inc., 2017
    ONCA 586

DATE: 20170707

DOCKET: C62878

Feldman, Cronk and Miller JJ.A.

BETWEEN

Francisco Yao Mendoza and Francis Mendoza Inc.

Plaintiffs (Appellants)

and

Active Tire & Auto Centre Inc.

Defendant (Respondent)

Ben V. Hanuka, for the appellants

Milton A. Davis and Ronald D. Davis, for the respondent

Heard: April 10, 2017

On appeal from the judgment of Justice Grant R. Dow of
    the Superior Court of Justice, dated September 29, 2016.

COSTS ENDORSEMENT

[1]

The appellant was successful on the appeal. The court is now asked to
    deal with costs below. At the summary judgment hearing, counsel for the
    respondent agreed that the amount of costs claimed by the appellant, $18,686.25,
    made up of $17,132.50 in fees on the partial indemnity scale and $1,553.75 in
    disbursements, was reasonable. We therefore order that amount in costs,
    inclusive of HST, be paid by the respondent to the appellant.

K.
    Feldman J.A.

E.A.
    Cronk J.A.

B.W.
    Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Morriseau v. Sun Life Assurance Company of Canada, 2017 ONCA 567

DATE: 20170704

DOCKET: C63365

LaForme, Hourigan and Paciocco JJ.A.

BETWEEN

Krista Leigh Morriseau

Plaintiff (Appellant)

and

Sun Life Assurance Company of Canada

Defendant (Respondent)

Robert E. Somerleigh and Vlad Popescu, for the appellant

Stephen Simpson and Elizabeth Bennett-Martin, for the
    respondent

Heard: Friday, June 30, 2017

On appeal from the judgment of Justice W. Danial Newton
    of the Superior Court of Justice, dated January 27, 2017, with reasons reported
    at 2017 ONSC 686, 65 C.C.L.I. (5th) 163.

REASONS FOR DECISION

[1]

This is an appeal of the motion judges judgment
    dismissing the within action for want of jurisdiction.

[2]

The appellant is a unionized employee of
    Lakehead District School Board (LDSB). Her employment is subject to a
    collective agreement that provides for certain long-term disability (LTD)
    benefits. The LDSB is self-insured with respect to LTD benefits under the
    collective agreement.

[3]

The respondent Sun Life Assurance Company of
    Canada (Sun Life) has a contract with the LDSB whereby it provides
    administrative services with respect to LTD benefits. Pursuant to that
    contract, Sun Life acts as agent for the LDSB and the LDSB has ultimate final
    decision-making power for the payment of LTD benefits.

[4]

The appellant sought LTD coverage following a
    motor vehicle accident she was involved in on November 2, 2015. That request
    was denied in a letter sent to her by Sun Life. She commenced the within action
    seeking, among other things, a declaration that she is totally disabled within
    the definition in the contract between Sun Life and LDSB and an order requiring
    Sun Life to approve the payment of LTD benefits.

[5]

The motion judge found that the court did not
    have jurisdiction because the dispute arises from the interpretation, application
    or administration of a collective agreement. Accordingly, he struck the appellants
    statement of claim.

[6]

On appeal, three primary arguments are advanced:
    (i) Sun Life is not a party to the collective agreement and, therefore, does
    not have standing to challenge the jurisdiction of the court; (ii) the motion
    judge erred in finding that the essential character of the dispute involves a
    subject matter that is covered by the collective agreement; and (iii) the
    result of the motion judges order is that the appellant is left without a
    remedy.

[7]

We would not give effect to these submissions.

[8]

First, pursuant to r. 21.01(3)(a) of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194, the respondent
    had standing to have the action dismissed on the basis that the court lacked
    jurisdiction. The respondent was named as the defendant in the within action,
    and r. 21.01(3)(a) provides that [a] defendant may move to have an action
    dismissed on the ground that the court has no jurisdiction over the subject
    matter of the action.

[9]

Second, as the appellant concedes, the standard
    of review of the motion judges finding that the subject matter of the dispute
    is covered by the collective agreement is palpable and overriding error:
Barber
    v. The Manufacturers Life Insurance Company (Manulife Financial)
, 2017 ONCA 164, 65 C.C.L.I. (5th) 1, at para. 7. We are not satisfied
    that the motion judge made any such error in concluding that the subject matter
    falls within Brown and Beatty category 2: see
Hamilton v. ICI
    Canada Inc. (c.o.b. ICI Autocolor)
, [2001] O.J. No. 3916
    (S.C.), at para. 9. The language of the collective agreement supported a
    finding that the LDSB was required to pay benefits under that agreement, even
    though the Benefits Booklet is not explicitly incorporated into the collective
    agreement. As the respondent points out, under Article C7.00 of the collective
    agreement, LDSB is required to continue to provide benefits in accordance with
    the existing benefits plans and collective agreement in effect as of August 31,
    2104. The local terms in the collective agreement also reference and describe
    LTD benefits in the Appendix A - Benefits Summary. LDSBs obligation under the
    collective agreement therefore goes beyond the mere payment of premiums, as the
    appellant suggests.

[10]

Moreover, the motion judges analysis was
    supported by the analysis of comparable collective agreements in
Morris
    v. Manufacturers Life Assurance Co
. (2005), C.C.L.I.
    (3d) 65 (Ont. S.C.), affd, (2005), 26 C.C.L.I. (4th) 66, O.J. (Ont. C.A.) and
Duke
    v. Toronto District School Board
, [2006] O.J. No. 1983
    (S.C.). We cannot discern any palpable and overriding error in the motion
    judges finding that the arrangement whereby Sun Life handles administrative
    aspects of LTD payments by LDSB, leaving final decision-making power with LDSB,
    was likely made to remove any doubt concerning the arbitrability of benefits
    disputes and thereby avoid the situation in
Hamilton
.

[11]

Third, we are satisfied that the real dispute is
    between the appellant and the LDSB, against whom the appellant may seek an
    appropriate remedy through arbitration. There is no contract between the
    appellant and Sun Life, and there is no legal basis upon which to order that
    benefits be paid by Sun Life. It is simply the agent of the LDSB. The
    entitlement to LTD benefits is a product of collective bargaining, and any
    dispute is therefore arbitrable under the collective agreement. The appellant
    has not advanced any convincing grounds for concluding that an arbitrator would
    decline jurisdiction over a claim for those benefits.

[12]

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

H.S.
    LaForme J.A.

C.W.
    Hourigan J.A.

David
    M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Munezero (Re), 2017 ONCA 585

DATE: 20170707

DOCKET: C63428

Weiler, Hourigan and Pardu JJ.A.

IN THE MATTER OF: Laurianne Munezero

AN APPEAL UNDER PART XX.1 OF THE
CODE

Suzan E. Frazer, for the appellant

Lee-Ann McCallum, for the respondent

Heard: July 5, 2017

On appeal against the disposition of the Ontario Review
    Board dated, December 6, 2016.

Pardu J.A.:

[1]

Laurianne Munezero appeals from a decision of
    the Ontario Review Board (ORB) ordering her detention in hospital and
    rejecting her request for a conditional discharge. The only issue before the
    ORB was whether the least onerous and least restrictive disposition consistent
    with public safety was a detention order or a conditional discharge.

[2]

The appellant was diagnosed with schizophrenia
    in 2009. On August 10, 2016, she was found not criminally responsible on a
    charge of arson. She was discharged with conditions.

[3]

On December 6, 2016, the ORB made a disposition
    ordering the appellants detention at St. Josephs Health Care  Hamilton,
    subject to certain conditions including community privileges as permitted by
    the person in charge of the hospital. The disposition provided that she could,
    in the discretion of the person in charge, live in Hamilton in accommodation
    approved by the person in charge.

[4]

The appellant submits that the ORB erred in
    failing to consider the legal mechanisms available under the
Mental
    Health Act
, R.S.O. 1990, c. M.7, for bringing a person in
    a mental health crisis to hospital.

[5]

We do not agree.

[6]

The ORB explicitly considered how the appellant
    fared while living in the community. It concluded that she had significant
    problems with this arrangement, despite the resources available under the
Mental
    Health Act
, the support of a substitute decision maker,
    her father and a community treatment order. Although she had previously been
    living with her parents, at the time of the hearing she was homeless, as her
    parents were suffering from caregiver fatigue. She rebuffed her doctors
    attempts to have her come to hospital for an assessment.

[7]

We reject the appellants submissions that the
    ORBs reasons for refusing to adopt the mechanisms available under the
Mental
    Health Act
were inadequate. In addition to being attentive
    to the difficulties the appellant faced in her prior course of treatment in the
    community, the ORBs reasons explicitly addressed the inappropriateness of
    resorting to the civil mental health legislation. The ORB wrote as follows:

In spite of her best intentions to stay well, Ms. Munezero has
    been unable to do so while living win the community even with extensive
    supports, including living with her parents. Medication compliance has been
    problematic in the past in spite of a community treatment order. Stress and
    consumption of alcohol have been identified as risk factors for [Ms.] Munezero.
    At present she has no community residence and there is no evidence to suggest
    how she might obtain an appropriate residence in the community. The evidence of
    Dr. Naidoo is that the Hospital staff will work with her to locate appropriate
    accommodation which will provide some degree of oversight to her medications,
    which is the key, Dr. Naidoo said, to keeping her well. More involvement in
    programming will also assist in developing Ms. Munezeros insight, in
    particular into the very horrifying and dangerous delusions she had at the time
    of the index offence. Her reluctance to give up her lit cigarette to staff
    while she was in the Schizophrenic unit is especially concerning.
Clearly the Mental Health act was not sufficient to return Ms.
    Munezero to Hospital while she was living with her parents and under the care
    of Dr. Lough
. His attempts to have her come to the Hospital for an
    assessment were rebuffed by her.
Although she is subject
    to a certificate of involuntary confinement under the Mental Health Act now,
    the issues relevant to that Act will confine to be assessed independently of
    any requirement of the ORB and may well result in her being discharged from
    Hospital while she still remains a significant threat to the public although
    perhaps not an immediate danger to the public
. [Emphasis added.]

[8]

The appellants treating physician, Dr. Lough, testified that the while
    living in the community she had suffered eight episodes of decompensation,
    which amounted to acute exacerbations of her illness. Three of these episodes
    occurred recently, after the index offence was committed on December 26, 2014.
    Each time one of these occurred, her illness became worse and harder to treat
    and the danger to the public was increased. The episodes could be attributed to
    lack of adherence to treatment, inadequate medication, stress or alcohol
    consumption. The appellant had a history of non-compliance with medication.
    Despite monitoring in the community for compliance with a medication regime that
    was part of a community treatment order, the appellant relapsed because she did
    not comply with the requirements of that treatment order.

[9]

As the ORB noted, the hospital needed to supervise and control the
    appellants accommodation. The plan was for the hospital to find accommodation that
    would allow for monitoring of her medication, a factor key to keeping her well
    and the public safe. This court has held many times that a need to supervise
    housing justifies a detention order as opposed to a discharge: see, for
    example,
Brockville Psychiatric Hospital v. McGillis
(1996), 93 O.A.C.
    226 (C.A.);
Runnalls (Re)
, 2012 ONCA 295;
Capano (Re)
, 2013
    ONCA 737;
Coburn (Re)
, 2015 ONCA 186; and
Bohme (Re)
, 2016
    ONCA 706.

[10]

We agree with the ORB that the appellants possession of incendiary
    devices, even while in hospital, was particularly concerning in light of the
    nature of the index offence, namely arson.

[11]

The Boards disposition  detention in hospital with the privilege of
    living in the community under the supervision of and as permitted by the person
    in charge of the hospital  was within the range of reasonable outcomes and is
    entitled to deference:
Saikaley (Re)
, 2012 ONCA 92, 109 O.R. (3d) 262,
    at paras. 34-36.

[12]

The appeal is accordingly dismissed.

G. Pardu J.A.

I agree K.M. Weiler J.A.

I agree C.W. Hourigan J.A.

Released: July 07, 2017