COURT OF APPEAL FOR ONTARIO

CITATION: Wilk v. Arbour, 2017 ONCA 21

DATE: 20170113

DOCKET: C61949

Weiler, Rouleau and Roberts JJ.A.

BETWEEN

Donna Marie Wilk

Plaintiff (Respondent in Appeal)

and

Kevin Arbour

Defendant (Appellant)

Stuart E.E. Wright and (Dana) Hyeseung Yoon, for the
    appellant

David E. Preszler, for the respondent

Heard: November 10, 2016

On appeal from the order of Justice Mario D. Faieta of
    the Superior Court of Justice, dated February 24, 2016, with reasons reported
    at 2016 ONSC 1179.

Weiler J.A.:

A.

Overview

[1]

This appeal requires us to determine when a person is in possession of a
    dog under the
Dog Owners Liability Act
, R.S.O. 1990, c. D.16 (the
    Act or the DOLA). The motion judge held that a person possesses a dog within
    the meaning of the Act when that person exercises dominion and control over
    the dog or, in other words, when the person is sovereign or stands in the shoes
    of the owner. I would hold that the word possesses in the definition of
    owner under the DOLA includes a person who is in physical possession and
    control over a dog just before it bites or attacks another person or animal.

[2]

Accordingly, for the reasons that follow, I would allow the appeal. I
    would dismiss the cross-appeal alleging negligence on the part of the dogs
    registered owner.

B.

Factual Background

[3]

Zeus is a nine year old Great Dane dog owned by the appellant Kevin
    Arbour.

[4]

On the morning of December 28, 2013, the respondent, Donna Marie Wilk,
    who at the time was in a romantic relationship with Kevin Arbour, offered to
    take Zeus for a walk and Mr. Arbour accepted her offer. Although Ms. Wilk had
    walked Zeus before, she had always done so with Mr. Arbour.

[5]

During their walk, Zeus, who was on a leash attached to his collar,
    suffered a seizure and became unconscious. When Zeus regained consciousness, he
    backed up, came out of his collar, slipped on ice and fell down an embankment
    into a ditch. Ms. Wilk tried to retrieve Zeus, but also slipped into the ditch.
    She collided with Zeus and Zeus bit her thumb, causing her to lose her thumb
    above the joint.

[6]

Ms. Wilk brought an action for damages for her injuries under s. 2 of
    the
DOLA.

[7]

For ease of reference, the relevant provisions of the Act are as
    follows:

1. In this Act,

owner when used in relation to a dog, includes a
    person who possesses or harbours the dog and, where the owner is a minor, the
    person responsible for the custody of the minor.

2. (1) The owner of a dog is liable for damages
    resulting from a bite or attack by the dog on another person or domestic
    animal.

(2) Where there is more than one owner of a dog, they
    are jointly and severally liable under this section.

(3) The liability of the owner does not depend upon
    knowledge of the propensity of the dog or fault or negligence on the part of
    the owner, but the court shall reduce the damages awarded in proportion to the
    degree, if any, to which the fault or negligence of the plaintiff caused or
    contributed to the damages.

(4) An owner who is liable to pay damages under this
    section is entitled to recover contribution and indemnity from any other person
    in proportion to the degree to which the other persons fault or negligence
    caused or contributed to the damages.

[8]

Mr. Arbour brought a motion for summary judgment to dismiss Ms. Wilks
    action. He alleged the claim raised no genuine issue for trial as Ms. Wilk was
    in possession of Zeus at the time that he bit her and, as an owner, she was
    not entitled to compensation under s. 2(1) of the Act
.
His position was
    that the Act only provides for liability by an owner to another person, that
    is, a non-owner.

[9]

Ms. Wilk brought a cross-motion for summary judgment on the basis that she
    did not possess Zeus and that Mr. Arbour, as the owner, was liable for her
    injury, and requested an order that the action proceed to trial on the issues
    of damages only.

[10]

Ms. Wilk also sued Mr. Arbour in negligence. Zeus had health problems
    and had suffered seizure-like incidents in the past. Mr. Arbour typically cooked
    Zeus meals in advance and administered Prednisone medication for seizures, but
    on the morning at issue Zeus had not been fed and had not received his
    medication before Ms. Wilk took him for a walk. Ms. Wilk alleged that Mr.
    Arbour was aware that Zeus was more likely to suffer a seizure after missing a
    meal and that he knew she would only feed or medicate Zeus if he specifically
    instructed her to do so. It is these omissions that form the major part of the
    claim in negligence by Ms. Wilk against Mr. Arbour. I note that the previous
    evening Mr. Arbour had asked Ms. Wilk to feed Zeus when he was called into
    work and she had done so. Ms. Wilk also alleged negligence on the part of Mr.
    Arbour in that the collar on Zeus was too loose.

[11]

Mr. Arbour claimed that the injury to Ms. Wilk was not reasonably
    foreseeable and sought to have her action in negligence dismissed against him
    as well.

C.

Decision Below

(1)

Liability under the DOLA

[12]

The motion judge dismissed Mr. Arbours motion for summary judgment
    under the DOLA and granted Ms. Wilks cross-motion. Although he held the DOLA
    does not provide for strict liability against another owner, he concluded Ms.
    Wilk was not in possession of Zeus at the relevant time and was not an owner. The
    core part of his reasoning is as follows:

Having considered the ordinary meaning of the word owner, the
    statutory context for the use of the word, including the objects of the
Act
,

it is my view that a just and
    reasonable result is that the word possesses when used in relation to a dog
    means the exercise of dominion and control similar and in substitution for that
    which ordinarily would be exerted by its owner (namely the person to whom the
    dog belongs) over the dog.

[13]

The motion judge held Ms. Wilk was entitled to compensation and ordered
    that her action proceed on the issue of damages only.

(2)

Liability in negligence

[14]

The motion judge dismissed Ms. Wilks claim in negligence. He held:

Even if I were to accept the submission that such actions could
    amount to negligence, it is my view that the injury suffered by Wilk was not a
    reasonably foreseeable consequence of Arbours actions. Although admirable,
    Wilk was not obliged to retrieve Zeus from the ditch after he had recovered
    from the seizure. Given the terrain, Wilk could have decided to wait or seek
    assistance. In my view, the risk of Wilk being bitten was not a ...consequence
    fairly to be regarded as within the risk created by Arbours alleged
    negligence described above. [Citation omitted].

[15]

The motion judge added corrected reasons to the effect that Ms. Wilk had
    not contributed to her injury as she had no knowledge of the propensity of the
    dog to bite in these circumstances. He found, In any event, Zeus had never
    bitten anyone before, so the consequence of being bitten was not within the
    risk created of slipping and falling down the embankment and colliding with
    Zeus. He further held Ms. Wilk had done nothing intentionally to provoke Zeus
    to bite her.

D.

Issues

[16]

The issues on appeal are: (a) the motion judges interpretation of the
    word possess; and (b) whether the motion judge made a palpable and overriding
    error in finding that Ms. Wilk was not in possession of Zeus at the time of the
    incident.

[17]

By way of cross-appeal, Ms. Wilk submits that the motion judge made a
    palpable and overriding error in finding that her injuries were not reasonably
    foreseeable and that her action in negligence ought to be allowed to proceed.

E.

Discussion

(1)

Standard of Review

[18]

The parties are in agreement as to the appropriate standard of review. The
    interpretation of a statute is a question of law. On pure questions of law the
    standard of review is correctness. On questions of mixed fact and law, the
    standard is palpable and overriding error. A palpable error is one that is
    obvious, plain to see, or clear, and an overriding error is one that is
    sufficiently significant to vitiate the challenged finding of fact:
Housen
    v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235;
Waxman v. Waxman
,
    44 B.L.R. (3d) 165 (Ont. C.A.), at paras. 296-297.

(2)

The Appeal

(a)

Did the motion judge err in his interpretation of a person who
    possesses a dog under the
Dog Owners Liability Act
?

[19]

The motion judge correctly set out the proper approach to statutory
    interpretation, namely, that the words of an Act are to be read in their entire
    context, in their grammatical and ordinary sense, harmoniously with the scheme
    of the Act, the object of the Act, and the intention of Parliament or the
    legislature:
Bell ExpressVu Limited Partnership v. Rex
,

2002 SCC 42,
[2002] 2 S.C.R. 559, at para. 26, quoting
    Elmer Driedger,
Construction of Statutes
, 2d ed. (Toronto:
    Butterworths, 1983), at p. 87.

[20]

The purposive approach required the judge to first consider the ordinary
    meaning of the word or words being interpreted; next, the context in which the
    words are found and the purpose of the legislation; and then, whether the
    proposed interpretation produced a just and reasonable result:
Blue Star
    Trailer Rentals Inc. v. 407 ETR Concession Co
,

2008 ONCA 561, 295 D.L.R. (4th) 83, at paras. 24-25;
Wawanesa Mutual Insurance Co. v. Axa Insurance (Canada)
,

2012 ONCA 592, 112 O.R. (3d)
    354, at para. 34.

[21]

The motion judge followed the first step. At para. 16 of his reasons he
    stated:

Possess is defined in the Concise Oxford Dictionary, 12th
    Edition, to mean have (something) belonging to one.have possession of as
    distinct from ownership. Possession is defined as the state of possessing
    somethingvisible power or control, as distinct from lawful ownership.
    Blacks Law Dictionary, Tenth Edition defines possess as to have in ones
    actual control.

[22]

However, the motion judge did not stop there. Having regard to the
    paucity of case law interpreting the provision in issue, he commented at para.
    18: Legislation in some states of the United States of America imposes strict
    liability for damages caused by a dog on a person that has a dog in his
    possession.

[23]

The motion judges footnote to this statement explains:

Liability for damages caused by a dog is imposed on the owner
    or keeper of the dog. In turn, keeper is defined as a person, other than the
    owner, harboring or having in his possession any dog. See
Auster v. Norwalk
    United Methodist Church
,

943
    A. 2d 391 (2008), (Supreme Court of Connecticut) p. 160. I also note that the
    dog liability statutes in all eleven American cases provided by Arbour and the
    one American case provided by Wilk imposed liability on a keeper. The
    statutes in those cases did not directly or indirectly impose liability on a
    person in possession of a dog. Accordingly, the cases provided are of no
    assistance in interpreting what is meant by possession under the
Act
.

[24]

Notwithstanding this footnote, the motion judges very next sentence in
    para. 18 states, In that context, possession of a dog has been interpreted
    as the exercise of dominion and control similar to and in substitution for
    that which ordinarily would be exerted by the owner over the dog. In para. 30
    of his reasons, the motion judge concluded that the word possesses when used
    in relation to a dog, means the exercise of dominion and control similar and
    in substitution for that which ordinarily would be exerted by its owner (namely
    the person to whom the dog belongs) over the dog.

[25]

Mr. Arbour submits that the motion judge erred in adopting this definition
    as the
Auster
decision deals with the definition of keeper, which,
    he submits is more analogous to the term to harbour in the DOLA. The
    definition the motion judge adopted instead frustrates the legislative intent
    in s. 1 of the DOLA which is aimed at expanding the definition of owner and
    requires more people to be more responsible and held accountable for the
    actions of dogs. He submits that the plain meaning first enunciated by the
    motion judge is clear and best accords with the context of the words, the
    purpose of the Act and will produce a just result.

[26]

In support of his position, Mr. Arbour relies on the obiter in
R. v.
    Huggins
, 2007 ONCJ 306, at pp. 4 and 7, appealed to this court on the
    issue of the destruction order of the dog only, in which the court opined that
    Ms. Razac, the dog owners mother who was walking the dog at the time of the
    dog attack was an owner under the DOLA. The court stated, at p.7, that:

After hearing the evidence at trial, this Court was puzzled why
    the prosecution chose to lay the charge against Philip Huggins rather than his
    mother. It is imperative to understand that it was Bernadette Razac [the
    defendants mother], not the defendant, who had actual custody of the dog at
    the time of this incident. Ironically, the
Dog Owners
    Liability Act

defines owner to include a person who
    possesses the dog. In the circumstances of this case, and with my findings of
    credibility and fact, had Bernadette Razac been charged, she would have been
    found guilty.

[27]

Ms. Wilks position is that the motion judges definition takes better
    account of the significance of the word possess in the context of the scheme
    of the DOLA. The motion judges definition characterizes possession as an
    active form of power and responsibility counterbalancing the more passive
    relation between owner and dog exercised in harbouring. Mr. Arbours proposed
    definition, she submits, does not countenance any dimension of the active and
    affirmative elements that the motion judges definition recognizes as implied
    by the scheme of the Act.

[28]

Ruth Sullivan,
Sullivan
    on the Construction of Statutes,
6th
    ed. (Toronto: LexisNexis Canada Inc., 2014), at
§3.11, pp. 30-31,
    tells us that one principle of language and of statutory interpretation is that
    the meaning of a word is influenced by the words with which it is associated.
[1]
For that reason, context is important. In s. 1(1) of the DOLA, owner includes
    a person who possesses or harbours the dog. The words owner, possesses and
    harbours have one thing in common: the ability to exercise control over the
    dog. In
Purcell v. Taylor
(1994),

120 D.L.R. (4th) 161 (Ont. C.J.)
,

the court was concerned with the definition of harbours under the DOLA.
    After an extensive review of cases decided at common law and under American Statutes,
    Borins J., as he then was, held at para. 34 that a person does not harbour a
    dog unless he or she exercises some degree of care or control over the dog.
    See also
Singh v. Chini,
[2005] O.J. No. 5965 (S.C.), at paras. 29-30;
Graham (Litigation Guardian of) v. 64087 Ontario Ltd.
, [2005] O.J. No.
    3685 (S.C.), at paras. 7-9;
McAllister v. Wiegand
,

[2009] O.J. No. 169 (S.C.), at
    para. 1.

[29]

Thus, the weight of Canadian jurisprudence respecting harbouring
    requires some degree of control in the specific situation of providing
    shelter to a dog; it does not use the phrase dominion and control as does the
    American jurisprudence relating to the keeper of a dog. The word, dominion is
    defined in
The Shorter Oxford Dictionary
, Thumb Index Edition (1993)

as follows: Sovereign authority and control. Reading in the word,
    dominion in addition to control, in order for a person to possess a dog, as
    did the motion judge, imports a requirement that the person who physically has
    the dog has the right to exercise sovereign authority or the highest measure of
    control over the dog and stands in the shoes of the owner.

[30]

In the
Shorter Oxford Dictionary
, a person who is the owner
    of a dog, is a person who owns something. The word own as in the transitive
    verb to own is defined: To have or hold as ones own, be proprietor of, possess.
    Property is a collection of rights over things that can be enforced against
    others:
Tucows.Com Co. v. Lojas Renner S.A.
, 2011 ONCA 548, 106 O.R.
    (3d) 561, at para. 60. In defining owner to include a person who possesses
    or harbours a dog, the legislature indicated an intention to impose liability
    on persons who had less than the full collection of rights belonging to an
    owner but who had attributes of ownership, possession and harbouring (providing
    safe shelter to the dog) where a measure of control over the dog is exercised.

[31]

The meaning ascribed to the word possesses by the motion judge is also
    not consonant with the overall purpose of the DOLA. Section 2(1) of the Act
    imposes liability on the owner of a dog, as defined in s. 1, for damages
    resulting from a bite or attack by the dog on a person or domestic animal. The
    definition of owner in the Act is consistent with the common law strict
    liability doctrine of
scienter
,
[2]
which extends liability beyond the dogs owner to one who harbours or possesses
    it:
Purcell v. Taylor
(1994), at
    para. 28
, citing
M'Kone v. Wood
(1831), 172 E.R. 850,
    at p. 850, and
Knott v. London County Council
, [1934] 1 K.B. 126, at
    pp. 140-141. However, s. 2(3) of the Act does away with the common law
scienter
requirement that a person wishing to sue for being bitten by a dog must
    establish a propensity on the part of the dog to viciousness or mischief,
    knowledge of the dogs propensity by the owner, or that the injury was
    attributable to the owners negligence. The owner of the dog is responsible for
    any damage caused by the dog biting or attacking a person or animal
    irrespective of whether the owner knew the dog might hurt someone or made
    efforts to prevent that from happening. In addition, s. 4(3) of the Act
    provides that in certain circumstances a court may order that a dog be
    destroyed or impose other security measures with respect to the dog: see
Purcell
    v. Taylor
(1994), at para. 8 and

Purcell v. Taylor
, 1992 CarswellOnt 4018 (C.J.), at para. 10.

[32]

Ms. Wilk submits that the legislature intended to impose responsible dog
    ownership and that actual physical possession voids the legislatures stated
    intention regarding the enforcement of the responsibility that goes along with
    dog ownership.

[33]

I would reject this submission. The legislature wished to make those who
    were in a position to exercise a measure of control over a dog responsible for
    its behaviour. This makes sense as the person exercising actual control over a
    dog is generally in the best position to avoid damage being caused by the dog
    to another person or animal. By requiring dominion as well as control over a
    dog, for a person to possess a dog, the motion judge read into the DOLA a
    higher standard for liability than the unambiguous plain meaning of the words
    required and one that was not consonant with the Acts overall purpose of liability
    for those exercising control over a dog. Thus, the trial judge erred in his
    interpretation of a person who possesses a dog under the DOLA.

(b)

Did the motion judge make a palpable and overriding error in finding
    that Ms. Wilk was not in possession of Mr. Arbours dog at the time of the
    incident?

[34]

Even though the motion judge erred in interpreting the word, possesses,
    Ms. Wilks position is that the motion judge did not make a palpable and
    overriding error in finding she was not in possession of the dog at the
    material time. It is not obvious, plain to see and clear that she was
    exercising dominion and control over the dog similar to and in substitution for
    that which would ordinarily be exercised by Mr. Arbour over his dog. Since the
    motion judge found that Ms. Wilk did not exercise any control over the dog
    without Mr. Arbours instruction and approval, she could not have exercised
    dominion and control in substitution for that which ordinarily would be exerted
    by Mr. Arbour. Furthermore, the motion judges additional findings of fact,
    including that the dog was living on Mr. Arbours property, Mr. Arbour
    controlled the dogs activities and Mr. Arbour cooked and scheduled the dogs
    meals, indicate that it was not plain that Ms. Wilk was in possession of the
    dog. Even if an error was made with respect to the use of the words dominion
    and control as opposed to simply control, it is not sufficiently significant
    to vitiate the motion judges findings of fact on this question of mixed fact
    and law.

[35]

In my opinion, the motion judge did make a palpable and overriding error
    in finding that Ms. Wilk was not in possession of Zeus. The critical time to
    determine possession is the time just before the incident. Ms. Wilk was the
    person exercising actual control of the dog just prior to the incident and she
    was best placed to prevent the bite that occurred.

[36]

The motion judges error in interpreting the word possesses affected
    his application of the word. In holding that Ms. Wilk was not in possession of
    the dog and therefore not an owner the motion judge committed a palpable and
    overriding error. I would hold that the word possesses in the definition of
    owner under the DOLA includes a person who is in physical possession and
    control over a dog just before it bites or attacks another person or animal.
    This is a definition which accords with the definition in
Blacks Law
    Dictionary
, 10th ed. (2014) and existing Canadian jurisprudence. By using
    the word includes I want to make it clear that this definition is not an
    exhaustive definition. The meaning of the term possesses in the DOLA must be
    assessed in the context of the specific circumstances of any given case. Given
    the variety of circumstances that may arise, a rigid definition is to be
    avoided.

[37]

As a result, I would allow the appeal, set aside the motion judges
    order, and dismiss Ms. Wilks action under the DOLA.

(3)

The Cross-Appeal

[38]

As indicated earlier, Ms. Wilk cross-appeals the motion judges
    dismissal of her action in negligence. The well-established elements of
    negligence are: 1) whether the defendant owed the plaintiff a duty of care; 2)
    whether the defendants behaviour breached the standard of care; 3) whether the
    plaintiff sustained damage; and 4) whether the defendants breach caused the
    plaintiffs harm in fact and law:
Mustapha v. Culligan of Canada Ltd.
,
    2008 SCC 27, [2008] 2 S.C.R. 114, at para. 3.

[39]

As discussed above, although it would be necessary to prove that the animal
    had vicious or mischievous propensities to establish liability on the common
    law strict liability doctrine of
scienter
,

the courts have
    held that the rule of
scienter
does not abridge other general
    principles of tort liability like negligence:
Morris v. Baily
, [1970]
    3 O.R. 386 (C.A.);
Brewer v. Saunders
(1986), 28 D.L.R. (4th) 45 (N.S.
    C.A.). There is still an ordinary duty of a person to take care that his animal
    does not become a source of harm to others: Carolyn Sappideen & Prue Vines,
    eds.,
Flemings The Law of Torts
, 10th ed.

(Toronto: Thomson
    Reuters (Professional) Australia Ltd., 2011), at §17.1, p. 418.

[40]

Nevertheless, to establish liability for animals in negligence, special
    circumstances must exist. The owner of an animal cannot be negligent if the animal
    acts in an unexpected way and injures someone. For a person to be held
    negligent there must be foreseeability of harm and unreasonable conduct, or put
    another way, it must be found that the owner of the particular animal, with
    its particular characteristics, in the particular circumstances [could] have
    reasonably foreseen the danger that could result in damage: Lewis N. Klar,
Tort
    Law
, 5th ed. (Toronto: Thomson Reuters Canada Ltd., 2012), at p. 666;
Bates
    (Guardian of) v. Horkoff
, 1991 A.R. 270 (Q.B.), at p. 276.

[41]

In this case, following
Bradford v. Kanellos
, [1974] S.C.R. 409,
    at para. 12, the motion judge determined that Ms. Wilks injuries were not
    reasonably foreseeable since the risk of Ms. Wilk being bitten was not a
    consequence fairly to be regarded as within the risk created by Mr. Arbours
    alleged negligence. The facts underlying his determination were that Ms. Wilk
    was not obliged to retrieve Zeus and that she could have decided to wait or
    seek assistance. As Ms. Wilk states in her affidavit, she chose to leave
    the pathway and proceed down the icy slope, and in doing so, slipped on the
    ice and slid down the slope towards Zeus where he bit her right thumb. Zeus was
    not in immediate danger.

[42]

Ms. Wilk submits that the motion judges reliance on foreseeability in
Bradford
    v. Kanellos
is misplaced and that he ought, instead, to have relied on
Bingley
    v. Morrison Fuels
, 2009 ONCA 319, 95 O.R. (3d) 191. At paras. 21-22, this
    court quoted
Assiniboine South School Division No. 3 v. Greater Winnipeg
    Gas Co.
(1971), 21 D.L.R. (3d) 608 (Man. C.A.), at pp. 613-614, affd
    [1973] S.C.R. vi, in holding that:

It is enough to fix liability if one could foresee in a general
    way the sort of thing that happened. The extent of the damage and its manner of
    incidence need not be foreseeable if physical damage of the kind which in fact
    ensues is foreseeable.

.

[O]ne need not envisage the precise concatenation of
    circumstances which led up to the accident, provided that the general harm is
    reasonably foreseeable.

[43]

While the
Bingley
test correctly states the law that the
    precise circumstances leading up to an accident need not be foreseeable, applying
    the
Bingley
test would not have made any difference to the motion
    judges ultimate conclusion to dismiss the action in negligence. Ms. Wilks
    decision to leave the safety of the path, and proceed down the icy slope to
    retrieve the dog, interrupted the alleged chain of causation and was an
    intervening act:
Flemings Law of Torts
, at §9.190, p. 250;
Ray v.
    Bates
, 2015 BCCA 216, 77 B.C.L.R. (5th) 64, at paras. 12-13. Given this voluntary,
    intervening act, Mr. Arbours alleged negligence was not the proximate cause of
    Ms. Wilks injury. Consequently, I would dismiss the cross-appeal.

F.

Costs

[44]

The parties have agreed on the quantum of costs. Accordingly, Mr. Arbour
    is entitled to his costs of the appeal fixed in the amount of $5,500 and to the
    costs of the motion at first instance fixed in the amount of $15,000, both
    inclusive of HST and disbursements.

[45]

Mr. Arbour is also entitled to the costs of the cross-appeal in the
    amount of $3,000 all inclusive.

Released: K.M.W. January 13, 2017

Karen M. Weiler J.A.

I agree Paul Rouleau
    J.A.

I agree Roberts J.A.

[1]
Sullivan notes that the ordinary meaning of a word should consider the
    immediate textual context, which consists of as much of the surrounding text as
    needed to make sense of the words being read. In a statute, the context is
    usually the section or subsection in which the words in question appear.

[2]
To establish liability on the common law doctrine of
scienter
where an
    individual has been injured by an animal, such as a dog, it is necessary to
    prove (1) that it was the dog in question which inflicted the injury; (2) that
    the dog had a mischievous propensity to commit the particular act of injury;
    and (3) that the owner or keeper knew of such propensity, or in other words,
    had
scienter
.


COURT OF APPEAL FOR ONTARIO

CITATION: York (Regional Municipality) v. Wadood, 2017 ONCA
    45

DATE: 20170119

DOCKET: C60339

Laskin, Sharpe and Miller JJ.A.

BETWEEN

Her Majesty the Queen ex rel. The Regional
    Municipality of York

Appellant

and

Amatal Wadood and Douglas Davis

Respondents

Chris G. Bendick, for the appellant

Arvin Ross, appearing as
amicus curiae

Heard: September 1, 2016

On appeal from the decision of Justice James R. Chaffe of
    the Ontario Court of Justice, sitting as a Provincial Offences Appeal Court,
    dated February 13, 2015, allowing the appeals from the convictions of the
    appellants entered on January 3, 2013 and August 14, 2013 in Provincial
    Offences Court.

Laskin J.A.:

A.

Introduction

[1]

When a police officer stops a motorist for a minor traffic offence,
    typically the officer will fill out the relevant information on a form called
    the certificate of offence. Underneath the certificate is a carbon copy
    called the offence notice. The officer gives the offence notice (commonly
    called a ticket) to the motorist, and then files the certificate of offence with
    the court, which has the effect of commencing proceedings against the motorist.

[2]

Is the officer entitled to change the information on the certificate of
    offence after giving the offence notice to the motorist, but before filing the
    certificate with the court? Suppose the officer does so, but the motorist does
    not initially dispute the charge and is convicted. If the motorist then appeals,
    and the appeal judge is made aware of the variance between the certificate of
    offence and the offence notice, should the judge set aside the conviction?
    These two questions are raised by this appeal. And trial judges have answered
    them in different ways.

B.

Background facts

[3]

The respondent Amatal Wadood was charged with the offence of turn not
    in safety, contrary to s. 142(1) of the
Highway Traffic Act
.
[1]
She was served with the offence notice and drove away. The certificate of
    offence was incomplete, because it did not contain the name of the municipality
    where the alleged offence occurred. So the officer added City of Vaughan before
    filing the certificate of offence with the court.

[4]

The respondent Douglas Davis was charged with speeding 149 kph in a posted
    100 kph zone, contrary to s. 128 of the
Highway Traffic Act
. He was
    served with the offence notice and left. The officer then realized that the
    certificate of offence contained the incorrect year for the alleged offence
    2012 instead of 2013. So before filing the certificate of offence with the
    court, the officer inserted the correct year.
[2]

[5]

Both Wadood and Davis asked for a trial, but neither appeared at their
    scheduled trial date. Because of their failure to appear, they were deemed to
    not wish to dispute their charges under s. 9.1 of the
Provincial Offences
    Act
.
[3]
When a defendant fails to appear for trial, s. 9.1 directs the justice of the
    peace to examine the certificate of offence and enter a conviction if the
    certificate is complete and regular on its face. The justice of the peace in
    each case concluded that the certificate of offence was complete and regular
    on its face, and Wadood and Davis were each convicted.

[6]

Both Wadood and Davis then appealed and asked to set aside the
    certificates of offence and their convictions on the ground that the
Provincial
    Offences Act
did not authorize an after-service amendment. In other
    words, they argued that the officers did not have statutory authority to make
    changes to the certificates of offence after having served Wadood and Davis
    with their offence notices.

[7]

The appeal judge in the Ontario Court of Justice allowed their appeals.
    Although he concluded that neither Wadood nor Davis was misled by the change to
    each certificate of offence  both were aware of the charge that they had to
    answer  he nonetheless quashed both convictions, because in his view, the
    changes to the certificates of offence were made without authority.

[8]

The appellant, the Regional Municipality of York, sought leave to appeal
    to this court. Weiler J.A. granted leave. She wrote:

The test for granting leave to appeal under s. 139 of the POA
    is met. The questions posited in the Crowns factum at para. 20 are questions
    of law, there is conflicting jurisprudence, the statute in issue has wide
    applicability and is of general application and the issue will undoubtedly
    arise again; it is essential in the public interest and for the due
    administration of justice that leave be granted.

C.

Issues

[9]

Section 90 of the
Provincial Offences Act
is at issue on this appeal.
    That section states:

90. (1) The validity of any proceeding is not
    affected by,

(a) any irregularity or defect in the substance or
    form of the summons, warrant, offence notice, parking infraction notice,
    undertaking to appear or recognizance; or

(b) any variance between the charge set out in the
    summons, warrant, parking infraction notice, offence notice, undertaking to
    appear or recognizance and the charge set out in the information or
    certificate.

(2) Where it appears to the court that the defendant
    has been misled by any irregularity, defect or variance mentioned in subsection
    (1), the court may adjourn the hearing and may make such order as the court
    considers appropriate, including an order under section 60 for the payment of
    costs.

[10]

The Municipality raises two specific issues regarding s. 90:

1.

Does s. 90(1)(b) of the
Provincial Offences
    Act
impliedly authorize an officer to amend the certificate of
    offence before it has been filed with the court, but after the offence notice
    has been served?

2.

Did s. 90 preclude the appeal judge from invalidating the convictions?

[11]

I have concluded that though s. 90 does not authorize an officer to
    amend the certificate after serving the offence notice, but before filing the
    certificate with the court, nothing in the
Provincial Offences Act
prevents an officer from doing so. Whether an amendment will invalidate a
    conviction depends on the nature of the amendment and its impact on a
    defendant.

[12]

In the appeals before us, each amendment did no more than correct a
    minor clerical error on the certificate; neither Wadood nor Davis was misled or
    prejudiced by the amendment; and thus the validity of the proceeding against
    each of them was preserved by s. 90.

[13]

I would allow the Municipalitys appeal and restore both convictions.

D.

Discussion

(1)

The effect of
    s. 90 of the
Provincial Offences Act

(a)

Overview

[14]

An important goal of the
Provincial Offences Act
is that cases
    be decided on their merits. A corollary to that goal is that a minor defect in a
    proceeding, not prejudicing a defendant, should not be given effect to. Section
    90 is one of several provisions in the statute that allows courts to meet this
    goal.

[15]

The Municipality relies especially on s. 90(1)(b). It submits that by
    stating that a variance between an offence notice and a certificate does not
    affect the validity of the proceeding, this provision implicitly (though not
    expressly) authorizes a provincial offences officer to amend a certificate of
    offence before filing it with the court.

[16]

The respondents Wadood and Davis do not agree with the Municipalitys
    position. They submit that it would be unfair to permit an officer to change
    information on the certificate after having served an offence notice on a
    defendant; the defendant assumes that the information on each document is
    identical.

[17]

The issue between the parties is narrow, but important. It is narrow
    because both parties agree that once a certificate of offence is filed with the
    court, only the court can amend it. That only the court can do so is evident from
    s. 3(1) of the
Provincial Offences Act
and rr. 2(1) and 15(1)2 of the
Rules
    of the Ontario Court (Provincial Division) in Provincial Offences Proceedings
.
[4]

[18]

Under s. 3(1) of the
Provincial Offences Act
, the filing of a
    certificate of offence with the court commences a proceeding against a
    defendant. Rule 2(1) states that the rules apply to proceedings under the Act
    and a word or term in the Act has the same meaning in these rules as it has in
    the Act. Thus, the rules apply to a proceeding commenced by filing a
    certificate of offence with the court. And r. 15(1)2 provides that amending a
    certificate of offence shall be dealt with only in court.

[19]

Thus, the issue narrows to whether an officer can amend a certificate of
    offence before filing it with the court and the effect of doing so. The issue
    is nonetheless important, largely because of ss. 9(1) and 9.1 of the
Provincial
    Offences Act
. These sections apply when a defendant fails to respond to an
    offence notice, or fails to show up for trial.

[20]

Under s. 9(1), a defendant who does nothing after being served with an
    offence notice is deemed to not wish to dispute the charge. And under s. 9(2)(a),
    the presiding justice shall convict the defendant in the defendants absence,
    but only if the certificate of offence is complete and regular on its face.
    Under s. 9(2)(b), if the certificate is not complete and regular on its face,
    the presiding justice must quash the proceeding. The requirement that the
    certificate be complete and regular on its face thus provides some protection
    to a defendant who chooses not to dispute a charge.

[21]

Similarly, under s. 9.1, a defendant served with an offence notice who
    does not appear for a scheduled trial date is deemed to not wish to dispute
    the charge. And under s. 9.1(2), the presiding justice shall convict the
    defendant in the defendants absence, but again only if the certificate of
    offence is complete and regular on its face. If it is not, under s. 9.1(3),
    the justice must quash the proceeding.

[22]

It is thus understandable why an officer, to ensure a conviction if a defendant
    does not dispute a charge, will want to correct minor errors or omissions on
    the certificate of offence  be it a missing name of a municipality, an
    incorrect spelling of a defendants name, or the incorrect year the offence was
    alleged to have been committed. These minor errors may occur as officers issue
    thousands of tickets annually.

[23]

However, I do not entirely agree with the Municipalitys submission. I
    would be hesitant to read into s. 90 an implicit authority to amend. But I see
    nothing in the statute or rules that precludes an officer from amending the
    certificate. If the officer does so, and the variance between the certificate
    and the offence notice comes before the court, then the presiding judge will
    have to decide whether the defendant was misled or prejudiced by the amendment.
    If not, then s. 90 will validate the proceeding.

[24]

To put my conclusion in context, I will briefly discuss the options
    available to a defendant after being served with an offence notice, ss. 9(1)
    and 9.1 proceedings, and the case law in the trial courts.

(b)

The offence notice

[25]

A defendant served with an offence notice has four options, each of
    which is specified on the notice:

1.

Plead guilty in writing and send in the amount of the fine specified in
    the offence notice;

2.

Agree to plead guilty, but ask to appear before a justice to make
    submissions on penalty;

3.

Give notice of an intent to appear in court and dispute the charge at a
    trial;

4.

Do nothing or not appear, and thus be deemed not to wish to dispute the
    charge and be liable to conviction.

It is the fourth option that gives rise to the issues
    on appeal.

(c)

The certificate
    of offence and ss. 9(1) and 9.1 proceedings

[26]

When a defendant decides to do nothing after being served with an
    offence notice, or at first requests a trial and then does not appear for
    trial, the presiding justice examines the certificate of offence in the
    defendants absence.

[27]

Significantly, the presiding justice has the certificate of offence, but
    not the offence notice. Thus, any variance between the two documents will not
    be apparent to the presiding justice. Equally, the presiding justice will have
    no way of knowing whether an officer had amended the certificate of offence
    after having served the offence notice. The presiding justices only task is to
    examine the certificate of offence and determine whether it is complete and
    regular on its face. If it is, the defendant will be convicted; if it is not,
    the proceeding must be quashed.

[28]

In the present case, both Wadood and Davis initially opted to dispute
    the charge and requested a trial. Each was given a trial date. But neither
    appeared for trial. So, in each case, the presiding justice of the peace proceeded
    under s. 9.1. Each certificate of offence was examined and found to be complete
    and regular on its face, and thus both Wadood and Davis were convicted, even
    though each certificate of offence had been amended after the offence notice
    had been served. This is not the case to discuss what is required for a
    certificate of offence to be complete and regular on its face. Neither Wadood nor
    Davis dispute that each certificate placed before the presiding justices was
    complete and regular on its face.

[29]

What follows from this discussion, however, is that s. 90 has no role to
    play in proceedings under ss. 9(1) or 9.1 of the
Provincial Offences Act
.
    Section 90  especially ss. 90(1)(b) and 90(2)  contemplates a comparison
    between the certificate of offence and the offence notice to determine whether
    a variance exists between the two documents. But in ss. 9(1) or 9.1
    proceedings, that comparison cannot be made, as the offence notice is not
    before the court.

[30]

As Feldman J.A. said succinctly in
London (City) v. Young
, 2008
    ONCA 429, 91 O.R. (3d) 215, at para. 23: s. 90 applies in the context of a
    hearing before the court, and therefore not where the justice is proceeding on
    default under s. 9(1) where no hearing is held. Apart from any other
    consideration, I thus find it hard to imply in s. 90 a power to amend a
    certificate of offence, where s. 90 is irrelevant to ss. 9(1) and 9.1
    proceedings, which are important proceedings under the Act.

[31]

Where s. 90 is relevant is at a trial, where the offence notice is put
    before the court, or as in this case, on appeal, where the defendant tenders
    the offence notice as a piece of fresh evidence. In these two situations, the
    presiding judge can compare the information on the two documents and, if a
    variance exists, determine its impact. Trial judges have disagreed on the
    impact of a variance resulting from an amendment to the certificate of offence
    before it has been filed.

(d)

Case law in the trial
    courts

[32]

Several trial judges have concluded that an amendment to the certificate
    of offence before it has been filed with the court, but after the offence
    notice has been served on a defendant, invalidates the proceeding. Here is a sampling
    of five decisions reaching that conclusion. In none of them did the court analyze
    the effect of s. 90 of the
Provincial Offences Act
.

[33]

In
R. v. Pawar
(2007)
,
    36 M.P.L.R. (4th) 90 (Ont. S.C.), before the certificate of offence was filed,
    it was amended by adding the day and month and correcting the year in which the
    alleged offence occurred. When the charge came up for trial, the justice of the
    peace quashed the ticket before the defendant had entered a plea. The
    prosecutor (the City of Brampton) sought judicial review to quash the justice of
    the peaces ruling and remit the matter back to the provincial court. OConnor
    J. dismissed the application. At para. 28 of his reasons, he held:

Neither the
P.O.A.
nor the regulations appear to
    contemplate an amendment to the certificate made between service of the notice
    and filing the certificate with the court. Thus the notice should contain
    exactly the same personalized information as the certificate. The accused must
    be aware of the information before the court. The requirement that amendments
    be made only by the court guards against the potential mischief of alterations
    prejudicial to the accused being made without the accuseds knowledge.

[34]

In
R. v. Nandalall
, [2008] O.J. No. 6034 (Ont. S.C.), Langdon
    J. followed
Pawar
. He held, at para. 33, that a certificate of
    offence that is amended by the issuing officer, after he has served the offence
    notice, but before he has filed the certificate, is a nullity. A nullity cannot
    be amended (footnotes omitted).

[35]

Similarly, in
R. v. McGonigal
, [1990] O.J. No. 3400 (Ont. C.J.),
    where the defendant was charged with the offence of red light fail to stop
    and the officer corrected the section number of the offence under the
Highway
    Traffic Act
, Wolder J. held, at para. 8, there is no provision under the
Provincial
    Offences Act
to amend the original document after execution or acceptance
    of service by the accused. He held that the amendment had nullified the
    proceedings.

[36]

And in
R. v. Tizzard
, 2011 ONCJ 821, [2011] O.J. No. 6156,
    where the defendant had been charged with speeding, but the officer had
    forgotten to specify the rate of speed on the certificate and then added it
    after, the defendant was convicted in his absence. But on appeal, Bellefontaine
    J. set aside the conviction and quashed the certificate of offence, because in
    his view, the amendment was substantive and deprived the defendant of the
    ability to make an informed decision whether to plead guilty or have a trial.

[37]

Finally, in
R. v. Koza
, [1995] O.J. No. 4278 (Ont. C.J.), where
    the officer corrected the date on the certificate of offence after serving the
    offence notice, Smith J. quashed the conviction. He held, at para. 29, if
    anybody wants to play with the document after they have been generated, they
    are not going to get the support of this judge.

[38]

On the other side of the disagreement among trial judges are the
    decisions of Lampkin J. in
R. v. Aristidou
, 2007 ONCJ 250, [2007] O.J.
    No. 2229 and Libman J. in
R. v. Mirza
, [2012] O.J. No. 6505 (Ont.
    C.J.).

[39]

In
Aristidou
, the defendant was charged with speeding. He was
    clocked at 93 kph in a 70 kph zone. The officer initially used his roadside
    discretion to reduce the speed to 85 kph. However, unhappy with the defendants
    apparent rudeness, the officer then amended the certificate of offence to show
    a rate of 93 kph and correspondingly amended the set fine from $42.50 to
    $91.25. The justice of the peace concluded that the amendment was improper and
    convicted the defendant of speeding at 85 kph. York Region appealed.

[40]

Lampkin J. correctly acknowledged that once the certificate of offence
    was filed with the court, it could only be amended by the court. But
    importantly, he also held that an officer could correct an error on the
    certificate of offence before filing it with the court. He wrote, at para. 20:

But what if the provincial offences officer discovers an error
    prior to filing the certificate in the office of the court or the laying of an
    information and proceeds to correct the error before filing the certificate or
    laying the information? The error may be as simple as the misspelling of a
    name. In my opinion the officer is entitled to make the correction before the
    proceeding has been commenced by filing the certificate or laying the
    information.

[41]

Nonetheless, Lampkin J. dismissed the appeal. He upheld the justice of
    the peace, inferring either that she had rejected the officers evidence that the
    defendant was speeding at 93 kph, or that she had used her power to amend the
    certificate.

[42]

In
Mirza
, the defendant was charged with failing to stop at a
    red light. The officer, however, put the wrong section number on the
    certificate of offence  he had written the section of the
Highway Traffic
    Act
for speeding. After serving the offence notice, the certificate was
    amended by crossing out the wrong section number and inserting the correct one.
    The defendant did not appear, and a justice of the peace convicted him in his
    absence.

[43]

The defendant appealed, and Libman J. dismissed his appeal. He
    distinguished the cases of
Pawar
and
Koza
, holding that the
    amendments in those cases were matters of substance. In the case before him,
    Libman J., at paras. 71-72, held that the defendant had not been misled and the
    officer simply corrected an obvious error.

Here, the effect of the argument as I apprehended it is that if
    an officer noticed an obvious error on a ticket, such as the spelling of a
    street or the offence, he or she would not be permitted to correct it to give
    logical effect to the argument made by Mr. Manoukian. I am unable to accept
    that this is in accord with the intent of this legislation.

[44]

Mirza
and a companion case were appealed to this court: see
R.
    v. Farah
, 2015 ONCA 302, [2015] O.J. No. 2240. This court allowed both
    appeals, relying on the prosecutors concession. But as the court noted in its
    brief endorsement, the concession was a limited one  that the certificates of
    offence, though complete, were not regular on their face, as there was a
    discrepancy between the short-form description of the offence and the specified
    section number of the
Highway Traffic Act
. That concession, of course,
    has no application to the case before us, as the certificates of offence for
    Wadood and for Davis were both complete and regular on their face.

(e)

My analysis

[45]

The effect of s. 90 has to be assessed not only in the light of the
    words of the section, but as well in the context of the scheme of the Act as a
    whole and its purpose.

[46]

Section 90 itself does not confer on an officer an express power to
    amend a certificate of offence. And I do not think it would be appropriate to
    imply a power to amend as the Municipality contends. The scheme of the Act
    suggests otherwise. Where the legislature and rule-makers wanted to provide for
    an amendment power, they have done so expressly in ss. 34(1) and (2) of the
    statute and r. 15(1)2. And, as I said earlier, s. 90 does not apply to
    certificates of offence considered in ss. 9(1) or 9.1 proceedings.

[47]

However, for the prosecution to achieve its goal of allowing officers to
    correct minor errors or omissions on a certificate of offence, it is not
    necessary to go as far as implying an amendment power in s. 90. In my opinion,
    officers are entitled to change information on a certificate of offence before
    filing with the court, even after serving a defendant with an offence notice.
    Nothing in the Act or the rules precludes officers from doing so. Proceedings
    against a defendant have not yet commenced. And neither the Act nor the rules
    requires that the information on a certificate of offence be identical to the
    information on an offence notice before it is filed with the court.

[48]

Allowing an officer to correct the certificate of offence before filing
    it with the court furthers the purpose of the
Provincial Offences Act
and proceedings under it. The express purpose of the Act is set out s. 2(1):

2. (1) The purpose of this Act is to replace the
    summary conviction procedure for the prosecution of provincial offences,
    including the provisions adopted by reference to the
Criminal Code
(Canada), with a procedure that reflects the distinction between provincial
    offences and criminal offences.

[49]

This court and other judges have elaborated on this purpose. The Act is
    intended to permit judges to decide cases on their merits, to deal efficiently
    and inexpensively with the provinces large volume of minor regulatory offences,
    and to avoid having proceedings invalidated because of technical objections or
    irregularities having no prejudicial impact on a defendant. See, for example,
London
    (City) v. Young
, per Doherty J.A. and
Ontario (Ministry of Labour) v.
    Discovery Place Ltd.
, [1996] O.J. No. 690 (Ont. C.J.), varied on other
    grounds, [1997] O.J. No. 1887 (Ont. C.A.).

[50]

If officers were not permitted to correct information on a certificate
    of offence before filing the certificate with the court, then many proceedings
    under ss. 9(1) or 9.1 would be quashed simply because the officer misspelled a
    name, left out a name of a municipality, or incorrectly wrote down the year of
    the alleged offence. In all of these examples  and many other examples of
    minor errors or omissions on certificates of offence  the defendant charged
    would not be misled. Quashing the certificate of offence because of minor
    errors that cause no prejudice would not promote the fair administration of
    justice in the provincial court.

[51]

Defendants are protected if they were misled or prejudiced by a change
    to information on the certificate of offence that produced a variance between
    the certificate and the offence notice. Where a variance comes to light, s. 90
    has an important role to play in promoting the purpose of the Act.

[52]

A variance could come to light in one of two situations: (1) at a
    contested trial, where the defendant puts the offence notice before the court
    and invites the presiding judge to compare the information on the certificate
    with the information on the offence notice; or (2) as in the present case, on
    appeal, after a conviction is registered against the defendant under ss. 9.1 or
    9(1) of the statute. In the latter situation, the appeal court has wide power
    under s. 136 of the
Provincial Offences Act
to receive further
    evidence, which presumably could include the offence notice, even though it was
    not before the justice of the peace in the default proceeding.

[53]

The judge, either at trial or on appeal, faced with a variance, would
    have to determine its impact. If the variance had the potential to mislead the
    defendant, then the judge would be justified under s. 90(2) in adjourning the
    trial and even ordering the prosecution to pay costs. On appeal, the judge may
    be justified under s. 138 in reversing a conviction or varying a penalty, or if
    necessary to do so to satisfy the ends of justice, ordering a new trial.

[54]

In his judgment in
R. v. Montone
, 2007 ONCJ 251, [2007] O.J.
    No. 2230, at paras. 38-39, Lampkin J. gives a good example of a case where a
    defendant would be misled by a change to the certificate of offence and where a
    conviction would result in an injustice. An officer arrives at the scene of an
    accident and issues a certificate of offence for following too closely. The
    officer then calls in to report the accident to his staff sergeant who advises
    that the defendant should have been charged with careless driving, a more
    serious offence with a greater monetary penalty and more demerit points. The
    officer then changes the certificate of offence to record the more serious
    offence and files it with the court. The defendant, thinking he had been
    charged only with following too closely, does not dispute the charge; the justice
    of the peace, in the defendants absence, examines the certificate, concludes
    it is complete and regular on its face, and convicts the defendant of careless
    driving. The defendant is notified of the conviction and appeals. As Lampkin J.
    notes, upholding the conviction on these facts would not be just; the defendant
    would have been convicted of an offence for which he received no notice
    whatsoever.
[5]

[55]

But against those cases  likely few  where the defendant has been
    misled or prejudiced by a change to the certificate of offence, are those many
    cases where the change may correct clerical errors or supply missing
    information, and the defendant is not misled or prejudiced at all. In these
    cases, s. 90 preserves the validity of the proceeding.

(2)

Did s. 90 preclude the appeal judge from invalidating the convictions of
    Wadood and Davis?

[56]

In Wadoods case, the certificate of offence was changed before filing
    by adding the name of the municipality where the offence was alleged to have
    occurred. In Davis case, the certificate of offence was changed by correcting
    the year in which the offence was alleged to have occurred. In neither case was
    the defendant misled by the change. The appeal judge so found when he observed
    both were aware of the charge that they had to answer.

[57]

Yet the appeal judge erred in law, because he failed to give effect to,
    or even consider, s. 90 of the
Provincial Offences Act
. Section
    90(1)(b) is a complete answer to the position of Wadood and Davis. The minor
    variances between the certificates and the offence notices did not affect the
    validity of either proceeding or the conviction of each respondent.

E.

Conclusion

[58]

I would allow the Municipalitys appeal and restore the convictions
    against Wadood and Davis.

Released: January 19, 2016 (R.J.S.)

John Laskin J.A.

I agree. Robert J. Sharpe J.A.

I agree. B.W. Miller J.A.

[1]

R.S.O. 1990, c. H.8.

[2]
Although the record is unclear who made the change to the certificates, I have
    presumed in each case the officer did so. Nothing turns on who made the
    changes; only that they were made before the certificates were filed with the
    court.

[3]

R.S.O. 1990, c. P.33.

[4]
R.R.O. 1990, Reg. 200.

[5]
Lampkin J. also notes, and the Regional Municipality accepts, that s. 124 (2)
    of the Act  where an appeal is based on a defect in a convictionjudgment
    shall not be given in favour of the appellant, but the court shall make an
    order curing the defect  would not bar the appeal.


COURT OF APPEAL FOR ONTARIO

CITATION: 625805 Ontario Ltd. v. Silverwood Flooring Inc.,
    2017 ONCA 125

DATE: 20170214

DOCKET: C62149

MacPherson, Hourigan and Miller JJ.A.

BETWEEN

625805 Ontario Ltd.

Plaintiff (Appellant)

and

Silverwood Flooring Inc., Tamar Royt and John Doe

Defendants (Respondents)

Brad Teplitsky, for the appellant

Inga B. Andriessen, for the respondents

Heard: January 12, 2017

On appeal from
    the judgment of Justice Barbara A. Conway of the Superior Court of Justice,
    dated May 16, 2016.

MacPherson J.A.:

A.

introduction

[1]

The appellant 625805 Ontario Ltd. (625) appeals from the judgment of
    Conway J. of the Superior Court of Justice granting the respondents motion for
    summary judgment. The motion judge held that the appellant had not commenced its
    action within the two year period prescribed by s. 4 of the
Limitations Act
,
    2002, S.O. 2002, c. 24, Sched. B (the
Act
).

B.

facts

(1)

The parties and events

[2]

Henry Smith and his son Carl Smith are home builders who carry on
    business through 625.

[3]

Tamar Royt, a former family friend of the Smiths, is in the business of
    hardwood supply through her business Silverwood Flooring Inc. (Silverwood).
    Silverwood supplies hardwood flooring to large scale residential high rises and
    commercial projects.

[4]

On November 16, 2009, the parties entered into a Joint Venture Agreement
    (JVA) with a stated purpose:

to combine their efforts and co-operate for the purposes of
    selling and installing hardwood flooring to low rise developers and selling
    hardwood flooring products to high rise development projects.

[5]

The business of the joint venture was defined in s. 1.1(c) of the JVA:

Business means the business of selling hardwood flooring to
    low rise and high rise development projects and installing hardwood flooring on
    low rise development projects, where such projects and customers have been
    referred to RoytCo by anyone of the Smith Group.

[6]

By virtue of s. 2.7 of the JVA, all parties acknowledged that Silverwood
    would continue to engage in its hardwood flooring supply business with
    customers who were not referred to it by the Smiths.

[7]

Pursuant to s. 2.2 and Schedule C of the JVA, Ms. Royt was responsible
    for managing the joint venture and would receive two percent of the gross sales
    of the business as a management fee.

[8]

In or about March 2010, the Smiths secured a significant customer for
    the joint venture, M5V Condominiums Project (the M5V Project), which was
    embarking on a multi-level (35 storey) residential condominium development.

[9]

The Smiths terminated the joint venture in April 2010. The Royt Group
    accepted the termination. In an email to the Smiths on May 12, 2010, Ms. Royt
    said:

Also wanted to confirm that all open orders in the system up to
    and including April 30
th
2010 will be shared as per the agreement as
    well as M5V of course. Im looking forward to working with you on M5V. Ill
    keep you posted on M5V regularly.

[10]

In
    the months following termination of the JVA, the M5V Project was developed. The
    former partners to the JVA could not agree on their respective obligations and
    benefits from this project.

[11]

On
    December 9, 2010, the Smiths commenced an application against Ms. Royt, 2219970
    Ontario Inc., and an independent company potentially involved in hardwood
    flooring supplies for the M5V Project. The application sought,
inter alia
:

An accounting of all amounts owing by Tamar Royt and 2219970
    Ontario Inc. to the Applicants pursuant to the terms of the Joint Venture
    Agreement made November of 2009.

[12]

The
    Smiths did not name Silverwood as a defendant in the application because it was
    not a party to the JVA and the Smiths claim they had no knowledge, at the time
    of commencing the application, that Silverwood supplied hardwood flooring on
    the M5V Project.

[13]

Ms.
    Royt provided an affidavit on behalf of the respondents on the application.
    During a cross-examination on her affidavit on January 20, 2012, Ms. Royt testified
    that Silverwood, not the joint venture, had supplied the hardwood flooring for
    the M5V Project.

[14]

During
    the same cross-examination, this crucial exchange took place:

99.     Q.     Aside
    from any third party expenses or your 2 percent management fee, has Silverwood
    or you or any company received any funds relating to any proceeds of M5V, aside
    from the 2 percent fee and paying expenses to third parties?

100.   A.      Yes.
    M5V is not part of the joint venture agreement. Thats my position.

100.   Q.     You
    will have to be very clear, because this is, just from my clients perspective,
    very serious.
You, Ms. Royt, or perhaps
    Silverwood, has received some of the proceeds yourself of the M5V project
?

A.      I would say yes.

101.   Q.
And the proceeds you have received are not only the 2
    percent management fee, correct?

A.
Actually, I dont even think it would amount to as
    much as the 2 percent management fee
.

102.   Q.     Are
    you saying that the money you received --
did
    the project make a profit, earn a profit
?

A.      Yes.

104.   Q.     Let
    me make sure of this. The profit -- and that was the question where you
    interrupted counsel. The profit from M5V was less than 2 percent of the
    project?

[Ms. Royts counsel]: Shes already answered that question.

[Emphasis
    added.]

[15]

Based
    on Ms. Royts answers, the Smiths knew that Silverwood had supplied the
    hardwood flooring for the M5V Project. The Smiths did not add Silverwood as a
    respondent in their application at this juncture.

[16]

The
    parties engaged in settlement discussions relating to the Smiths application.
    They were unsuccessful.

[17]

On
    September 9, 2015, the Smiths numbered company, the appellant, issued a statement
    of claim against Silverwood, Ms. Royt and John Doe.
[1]
The principal relief sought in the action is a declaration that the defendants
    have been unjustly enriched at the plaintiffs expense and an accounting from
    the defendants as to the amount by which they have been unjustly enriched.

[18]

On
    September 28, Silverwood and Ms. Royt filed a statement of defence. In short
    order, the parties filed amended statements of claim and defence.

[19]

On
    January 19, 2016, Silverwood and Ms. Royt moved for summary judgment dismissing
    the action on the basis that the relevant limitation period had expired.

(2)

The motion judges decision

[20]

Following
    a hearing on May 16, 2016, the motion judge granted the motion. The core of the
    reasoning in her endorsement is:

In my view, by 2012 the [plaintiff] knew the following:

1.

That [Silverwood] had supplied the flooring on the M5V project;

2.

That the [plaintiff] considered the M5V project to have been a JV
    project;

3.

That [Silverwood] had made a profit from the project; and

4.

That [Silverwood] had derived revenues from the project that the [plaintiff]
    considered belonged to the JV.

At that point, the [plaintiff] knew or ought to have known all
    the material facts that gave rise to a claim of unjust enrichment against [Silverwood].
    Essentially, [Silverwood] had retained monies that belonged to the JV.

The [plaintiff]s position that it did not know the JV would
    have made a profit on the project draws the line too narrowly. The [plaintiff] knew
    or ought to have known that it sustained some damage  in that monies were
    retained by [Silverwood] that the [plaintiff] considered to belong to the JV
    and that there was no juristic reason for it to do so. That was sufficient to
    trigger the start of the [limitation] period.

The [plaintiff] further had the means to determine and explore
    the revenues actually generated from the M5V project and whether the JV would
    have made or not made a profit thereon, by bringing the appropriate motion at
    that time.

The action was commenced out of time. I grant [summary
    judgment] dismissing it. There is no genuine issue requiring a trial.

[21]

The
    appellant appeals from this decision.

C.

issue

[22]

The
    sole issue on the appeal is: did the motion judge err by concluding that the
    appellants action was commenced outside the relevant two-year period?

D.

analysis

[23]

The
    appellant acknowledges that the motion judge is correct in saying that it
    became aware on January 20, 2012 that Silverwood had supplied the hardwood
    flooring on the M5V Project. Thus the appellants issuance of its statement of claim
    against Silverwood and Ms. Royt on September 9, 2015 is,
prima facie
,
    outside the applicable two-year limitation period in the
Act
.

[24]

However,
    the appellant contends that this
prima facie
conclusion, which the
    motion judge accepted, should not stand. The appellant says that in cross-examination
    on her affidavit on January 20, 2012, Ms. Royt lied about the profits made on
    the M5V Project. The appellants position on this issue is stated by Henry
    Smith in his affidavit dated March 9, 2016, at para. 9:

We only found out that M5V had in fact made at least $200,000
    in profit during my meeting with her in 2015 as referenced in the
Amended
Claim, the details of which
    as referenced in that document are true.

[25]

In
    its
amended
statement of claim dated
    September 28, 2015, the appellant states:

17.     In or
    about March of 2015, following an unsuccessful mediation in the Commercial
    Court action, Royt disclosed to Henry Smith that contrary to her earlier
    evidence, Silverwood had in fact made at least $200,000 in profit in respect of
    the sale of flooring to M5V. She also told him that the representation she had
    made to him in 2009 regarding Silverwoods overhead expenses was untrue in that
    it was significantly less than $40,000.00 per month. Royt made these admissions
    during the course of a meeting,
following
    further unsuccessful settlement discussions
, where Henry Smith
    again requested that the financial records relating to the sale of flooring to
    M5V be disclosed
after Royts admissions
    that she lied during her 2011 testimony
. [Emphasis in original
    to indicate amendments.]

[26]

In
    my view, in the face of this clear allegation that Ms. Royt lied about
    Silverwoods profits from the M5V Project, it is important to examine closely
    what the respondents have and have not said about this issue. After all, it is Silverwood
    and Ms. Royt who sought summary judgment dismissing the appellants entire
    claim.

[27]

I
    draw attention to two features of the respondents position on this issue.
    First, the respondents did not file any materials  for example, a reply
    affidavit by Ms. Royt  countering the appellants allegation of lying. Second,
    in cross-examination on her affidavit filed in the Smiths original
    application, Ms. Royt testified that proceeds of the M5V Project were not as
    much as the 2 percent management fee and refused to answer any further questions
    about the profitability of the M5V Project.

[28]

I
    turn to apply this factual background to the motion judges analysis and
    conclusion. I have no quarrel with the four factual conclusions made by the
    motion judge about what the appellant knew in 2012. However, with respect, I
    disagree with this component of the motion judges reasoning:

The [plaintiff] knew or ought to have known that it sustained
    some damage  in that monies were retained by [Silverwood] that the [plaintiff]
    considered to belong to the JV.

[29]

In
    light of the factual circumstances set out above, I do not think that this
    conclusion can be sustained. Although Ms. Royt admitted that the M5V Project
    made a profit, she described the profit as [not] as much as the 2 percent
    management fee in her cross-examination.

[30]

That
    was the picture facing the Smiths (including the appellant) in early 2012. In
    these circumstances, it was not unreasonable for the appellant to think that it
    had not suffered some damage. In light of the two percent management fee to
    which Ms. Royt was entitled before profits could be distributed to the joint
    venture and Ms. Royts express statement that profit from the M5V Project was
    less than her management fee, the possibility that the Smiths had suffered
    damage from the M5V Project and that the damage was caused by the respondents was
    removed from the Smiths minds. Accordingly, this is not a case where a party
    knows that it has suffered a loss but does not know the extent of the loss:
    see, for example,
Hamilton (City) v. Metcalfe & Mansfield Capital Corp.
,
    2012 ONCA 156, 290 O.A.C. 42.

[31]

It
    is true that the Smiths could have disbelieved or doubted Ms. Royts answers
    and brought a motion to compel production of financial documentation and/or to add
    Silverwood as a party to the original application. I do not think this was
    necessary. Parties are entitled to accept that information testified to under
    oath is truthful and accurate.

[32]

In
    these circumstances, the appellant discovered the potential damage that
    grounds its unjust enrichment claim when Ms. Royt told Henry Smith in 2015 that
    Silverwood made a profit of at least $200,000 on the M5V Project.

[33]

It
    follows that the appellants action, commenced on September 9, 2015, was
    commenced within the two-year period prescribed by the
Act
:
McConnell v. Huxtable
, 2014
    ONCA 86, 118 O.R. (3d) 561, at para. 50.

E.

disposition

[34]

I
    would allow the appeal, set aside the judgment of the motion judge, and dismiss
    the motion for summary judgment.

[35]

The
    appellant is entitled to its costs of the appeal fixed in accordance with the
    agreement of counsel, at $8,000 inclusive of HST and disbursements.

[36]

The
    motion judge awarded the moving party its costs of the motion and the action
    fixed at $20,000. I would set aside this award and award the appellant costs of
    the motion fixed at $8,000 inclusive of HST and disbursements.

Released: JM FEB 14 2017

J.C. MacPherson
    J.A.

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

I agree. B.W. Miller
    J.A.

[1]
The appellant says that there are two shareholders of Silverwood, Ms. Royt and
    an unknown second shareholder; hence the defendant John Doe.


COURT OF APPEAL FOR ONTARIO

CITATION: Abernethy v. Canada (Attorney General), 2017 ONCA
    167

DATE: 20170228

DOCKET: M46945 (M46782)

LaForme, Pepall and Pardu JJ.A.

BETWEEN

Joan Abernethy

Moving Party (Appellant)

and

Attorney
    General of Canada
and Her
    Majesty the Queen in Right of Ontario as represented by Crown Attorneys

(Justice)
James
A. Ramsay, Ron Davidson, Jennifer
    Broderick and Lucas ONeill, Kathryn (Kathy) Rippy, and Gerry McNeilly and St.
    Josephs Healthcare (Hamilton) Director, East Region Mental Health Services,
    Judith Santone

Respondent

Joan Abernethy, acting in person

Ayesha Laldin, for the respondent

Heard: February 23, 2017

ENDORSEMENT

Background

[1]

Ms. Abernethy commenced an $8.4 million claim that alleged various
    causes of action against Ontario and Canada, as well as various provincial and
    federal employees. Among other things, it alleged misfeasance in public office,
    false imprisonment, and conspiracy.

[2]

On November 14, 2013 Canadas motion to strike parts of Ms. Abernethys
    Fresh as Amended Statement of Claim without leave to amend and dismissing her
    action as against Canada was granted. The motion judge concluded that the Fresh
    as Amended Statement of Claim failed to disclose a reasonable cause of action
    or to plead material facts supporting any of the alleged causes of action.

This Motion

[3]

Ms. Abernethy
filed a notice of appeal to
    this court on December 23, 2013 but failed to perfect her appeal within the
    required time. She then served a notice of motion in this court dated February
    10, 2014 to extend the time to appeal.
Her motion remained
    inactive and was ultimately heard by a single judge of this court sitting in
    chambers on September 9, 2016.

[4]

The chambers judge refused Ms. Abernethys
    requested relief. She found that Ms. Abernethy had an intention to appeal
    within the requisite time and that no special prejudice would result by
    granting an extension. However, she also found that Ms. Abernethy had not
    adequately explained the long delay in bringing the appeal and concluded the
    appeal lacked merit. The chambers judge ultimately held that the justice of the
    case did not compel an extension of time.

[5]

Ms. Abernethys motion before this panel is to
    review the chambers judges order pursuant to s. 7(5) of the
Courts
    of Justice Act
.

Conclusion

[6]

Having considered oral submissions and reviewed
    the motion materials, we first note that the chambers judge applied the correct
    test for the granting of an extension of time: see
D.G. v. A.F.
, 2014 ONCA 436, [2014] O.J. No. 2608. Second, the chambers judges
    exercise of discretion to deny an extension of time is accorded considerable
    deference on a s. 7(5)
Courts of Justice Act
review by a panel of this court: see,
R. v. Gatfield
, 2016 ONCA 23, 345 O.A.C. 197, at para. 11.

[7]

The chambers judge concluded the motion judge
    did not err when he held that the
Fresh as Amended Statement of Claim
    failed to disclose a reasonable cause of action or to plead material facts
    supporting any of the alleged causes of action
. She committed
    no error in doing so and was entitled to conclude that the justice of the case,
    in all the circumstances, dictates that no extension of time should be granted.

[8]

There is no reason for this panel to interfere
    with the chambers judges exercise of discretion. Ms. Abernethys motion is
    dismissed.

[9]

Canada is entitled to costs of this motion fixed in the
    amount of $500, inclusive of disbursements and all applicable taxes.

H.S.
    LaForme J.A.

"S.E. Pepall
    J.A."

G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Bajouco v. Green, 2017 ONCA 155

DATE: 20170222

DOCKET: M47467

Pardu J.A (In Chambers)

BETWEEN

Florips Bajouco

Moving Party

and

Cindy Green

Respondent

Florips Bajouco, acting in person

Rebecca Huang, appearing as duty counsel

George Pakozdi, for the respondent

Heard: February 9, 2017

ENDORSEMENT

[1]

Ms. Florips Bajouco moves for a stay of proceedings pursuant to rule 63.02
    of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194.

[2]

She expressed a concern about late service of the respondents
    materials, but elected to proceed with this matter, with the assistance of duty
    counsel, rather than seek an adjournment.

[3]

Judgment was granted in favour of the respondent on the motion,
    Ms. Cindy Green in the Small Claims Court for $8,800.77, together with
    costs in the amount of $1515.12. The respondent sued the moving party, her
    neighbour, alleging that the moving partys failure to keep the downspout
    connected on her half of the semi-detached house caused flooding in the
    respondents home on four occasions between 2011 and 2013. The moving party
    denied that her downspout had ever been disconnected. She suggested that the
    flooding might have been caused by sewer backup, water flow from the street or
    the respondents own downspout. Both parties were represented by counsel at the
    trial. The Small Claims Court judge found in favour of the respondent,
    concluding that the moving partys downspout had been disconnected and that
    this had caused the flooding.

[4]

The moving party appealed to the Divisional Court. The Divisional Court
    dismissed her appeal, observing, at paras. 9 and 13-16:

Although Bajouco has raised several issues on her appeal, most
    of them seek to impugn the trial judges assessment of the evidence at trial
    and to have this Court rehear the case. In my view, none of the points
    argued on behalf of Bajouco amount to demonstrating any reversible error of law
    or palpable or overriding error with respect to any findings of fact made by
    the trial judge or with respect to her application of the law to those facts.

There was evidence at trial upon which the trial judge could
    rely to support a finding that the downspout had become detached and had caused
    flooding onto Greens property. The trial judge did not make any palpable and
    overriding error in her assessment of the evidence in that regard, including in
    her assessment of the credibility of the witnesses. It is evident from the
    trial judges reasons that Greens evidence as to the cause of the flooding was
    accepted by her, and that all other possible causes of flooding and damage
    advanced by Bajouco were systematically analyzed and rejected.

By engaging in this deductive reasoning, the trial judge did
    not improperly shift the burden of proof to the Defendant.

The trial judge was entitled to assign no weight to the City of
    Toronto record tendered by Bajouco as evidence at trial. Although the
    document was entered as a business record, its contents were disputed by Green.
    Its author was not called to give evidence at trial. The trial judge did
    not rely on the notation on the document as to the source of the flooding and,
    rather, accepted Greens evidence as being both credible and reliable on the
    issue.  It was within the proper scope of the role of the trial judge to
    do so.

Similarly, there was evidence adduced upon which the trial
    judge could rely in arriving at her assessment of damages.  Various bills
    and estimates were tendered by Green to support the repair costs she
    claimed.

[5]

Costs in the Divisional Court were awarded to the respondent in the sum
    of $3,000.

[6]

On June 29, 2016, this court dismissed the moving partys motion for
    leave to appeal and awarded costs to the respondent in the sum of $1,500.

[7]

She has now filed a motion pursuant to r. 59.06(2) to ask the panel that
    refused her motion for leave to appeal to reconsider that decision. That
    material is not before me.

[8]

In her affidavit she says that there has been fresh evidence discovered
    relating the flooding in the respondents basement and that the evidence is
    crucial to the decision made at trial.

[9]

At trial, the respondent testified that the flooding in her basement
    caused damage to her basement bathroom. The moving party says that she has
    discovered that a photograph of this bathroom used by the respondent to support
    her claim at trial was a photograph of the west wall of the house where the
    bathroom was located and that this was right by her own downspout.

[10]

The moving party also submits that the respondent made changes to or
    falsified a letter from a company called Watertite relating to repairs caused
    by flooding.

[11]

The moving party also relies on a Watertite invoice dated August 6,
    2013, indicating work was done on her west wall and under her porch. She alleges
    that the respondents shower stall is directly over her sewer line and that the
    respondent has been flooding her own basement.

[12]

The moving party submits that the trial judge erred in many respects and
    that in July 2016 the City of Toronto discovered a 50 percent calcium
    obstruction in the city sewer line affecting almost every house on the street.

[13]

She says the respondent pleaded a claim for $24,800 but did not prove
    that at trial and that the respondent did not provide her true identity to the
    court, calling herself Cindy Green, rather than by her legal name Cynthia
    Green.

[14]

She says finally that the respondent lied under oath at trial.

[15]

Most of the matters described by the moving party as amounting to fresh
    evidence were in fact dealt with at trial.

[16]

The possibility that damage to the respondents bathroom might be caused
    by the respondents own downspouts was raised by the moving party at trial. She
    testified:

And then, there is also a picture of the plaintiffs
    downspouts. She has two downspouts located along the side of her home. Those
    downspouts do not point away from her property; those downspouts are actually
    right up against her, uh, side. They, um, I believe most likely is the reason
    why shes had the flooding in her bathroom, cause her bathroom is located on
    that side, um, and Im assuming  I will assume that is why shes had the
    flooding  its coming from her roof water.

[17]

Similarly she alleged in her evidence that the respondent altered the
    letters from Watertite.

[18]

The Watertite invoice dated August 6, 2013 was also before the trial
    judge.

[19]

I am not satisfied that the discovery in July 2016 of calcium in the
    sewer lines would have been material to the conclusions reached by the trial
    judge.

[20]

Nothing in the material filed before me persuades me that the Divisional
    Court judge erred in dismissing the moving partys appeal.

[21]

Rule 63.02 provides that a final order may be stayed on terms as are
    just by an order of a judge of the court to which a motion for leave to appeal
    has been made or to which an appeal has been taken.

[22]

The respondent argues there is no appeal outstanding. The motion for
    leave has been dismissed, and r. 63.02 does not give authority to stay
    proceedings where a motion for reconsideration is awaiting disposition under rule
    59.06(2).

[23]

Assuming, without deciding, that there is authority under r. 63.02 to
    stay enforcement of the Small Claims Court judgment and the related costs
    awards pending a decision on a motion asking the panel to reconsider its
    refusal to grant leave to appeal, I am not persuaded that the moving party has
    met the test for a stay set out in
RJRMacdonald Inc. v. Canada (Attorney
    General)
, [1994] 1 S.C.R. 311, at p.
    344
.

[24]

As indicated in
Meridian Credit Union Limited v. Baig
, 2016
    ONCA 942, at para. 7, a party seeking to re-open an appeal after the appeal
    decision has been rendered faces a high hurdle, and a court will re-open an
    appeal sparingly and only where it is clearly in the interests of justice.

[25]

Here the moving party is seeking to re-litigate in this court the same
    factual issues that were before the trial judge, on essentially the same
    evidence that was before the trial judge.

[26]

There is no evidence of impecuniosity on the record before me, nor of
    the impact of enforcement of the judgment.

[27]

The respondent has had judgment since July 8, 2014 and has been unable
    to enforce it. The moving party has been refused relief on appeal twice, and
    she is now attempting a third appellate review by motion to reverse the refusal
    of leave. Given the nature of the factual issues now raised, the absence of any
    error by the Divisional Court and the hurdle faced by the moving party in
    obtaining a change in the decision of this court refusing leave, I am not
    persuaded that a stay of enforcement should be granted. I recognize that the
    time until the panel decides whether to reconsider the refusal of leave might
    not be lengthy, but in the absence of evidence of irreparable harm, and
    weighing the balance of convenience, the motion is dismissed, with partial
    indemnity costs in favour of the respondent in the sum of $2500.00 inclusive of
    disbursements and applicable taxes.

G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Barber v. The Manufacturers Life Insurance Company
    (Manulife Financial), 2017 ONCA 164

DATE: 20170227

DOCKET: C62383

LaForme, Pepall and Pardu JJ.A.

BETWEEN

Adrian Barber

Appellant

and

The Manufacturers Life Insurance Company, carrying on
    business as Manulife Financial

Respondent

David Share and Samantha
    Share, for the appellant

Gordon Jermane, for the respondent

Heard: February 22, 2017

On appeal from the order of Justice Edward P. Belobaba of
    the Superior Court of Justice, dated June 16, 2016.

ENDORSEMENT

Introduction

[1]

Adrian Barber appeals from the dismissal of her action against The
    Manufacturers Life Insurance Company (Manulife) by the Superior Court of
    Justice. The motion judge granted Manulifes motion to strike Barbers claim,
    pursuant to r. 21.01(3), because Barbers collective agreement (the CA)
    granted exclusive jurisdiction over her matter to the labour arbitration
    process.

[2]

Barber became disabled from her
    employment as a Port Hope police constable in July 2009. She applied for
    long-term disability (LTD) benefits under a group policy of insurance,
    insured by Manulife. Manulife paid these benefits until January 2013; then terminated
    the benefits. The collective agreement between the Port Hope Police Services
    Board (the Board) and the Port Hope Police Association (the Association),
    which governed Barbers employment, requires the Board to offer disability
    insurance coverage to the Associations members.

[3]

Barber commenced an action against Manulife asserting that LTD benefits
    were paid to January 31, 2013 and terminated effective February 1, 2013. She
    claimed they ought to have continued. As a remedy, Barber claimed payment of
    disability benefits.  She alleged she has a contract for insurance with
    Manulife through her employer, Port Hope Police Service, and was issued Group
    Policy Number 572397.

[4]

Manulife brought a motion under r.
    21.01(3)(a) of the
Rules of Civil Procedure
to have Barbers claim dismissed because the Superior
    Court had no jurisdiction over the subject matter of the action. In a brief
    endorsement, the motion judge agreed with Manulife that the Superior Court
    lacked jurisdiction.

[5]

The motion judge concluded that the
    language of Articles 18.01 and 18.02 of the collective agreement made Barbers
    matter arbitrable because the matter fell within category 2 of the Brown
    & Beatty categories and possibly category 4. The motion judge dismissed
    Barbers claim and awarded $1,500 in costs to Manulife.

[6]

There is only one issue on appeal: Did the motion judge err in holding
    that the Superior Court does not have jurisdiction over Barbers matter?

Analysis

[7]

Although this case concerns jurisdiction,
    its resolution turns on the interpretation and application of a collective
    agreement.  It is a negotiated contract and not a standard form contract. The
    issue determined by the motion judge, therefore, is a question of mixed law and
    fact to which the palpable and overriding error standard of review applies:
Sattva
    Capital Corp. v. Creston Moly Corp.
, 2014
    SCC 53, [2014] 2 S.C.R. 633, at paras. 50-55;
Ledcor Construction
    Ltd. v. Northbridge Indemnity Insurance Co.
,
    2016 SCC 37, at para. 24.

[8]

Neither party denied that the essential character of the dispute
    concerned LTD benefits. Therefore, the motion judge moved directly to the
    question of whether the claims essential character arose from the
    interpretation application, administration or violation of the CA.
If so, an arbitrator, not a court, had exclusive
    jurisdiction to decide the issue:
Weber v. Ontario Hydro
, [1995] 2 S.C.R. 929, at paras. 11, 52, 54
.

[9]

A
rbitration jurisprudence has
    developed a well understood method of deciding the arbitrability of benefit
    entitlement claims, which is
to consider t
he
    four Brown and Beatty
[1]
categories considered by the motion judge: see,
London Life Insurance Co.
    v. Dubreuil Brothers Employees Assn.
(2000), 49 O.R. (3d) 766, at para.
    10. The four categories are:

1.       where
    the collective agreement does not set out the benefit sought to be enforced,
    the claim is inarbitrable;

2.       where
    the collective agreement stipulates that the employer is obliged to provide
    certain medical or sick- pay benefits, but does not incorporate the plan into
    the agreement or make specific reference to it, the claim is arbitrable;

3.       where
    the collective agreement only obliges the employer to pay the premiums
    associated with an insurance plan, the claim is inarbitrable; and

4.       where
    the insurance policy is incorporated into the collective agreement, the claim
    in arbitrable.

[10]

This courts decision in
London
    Life
advanced the
Weber
analysis in the context of benefit disputes by
    adopting the four categories from Brown and Beatty.

[11]

Barber submits that the dispute falls within Category 3 and is not
    arbitrable. The Board's only obligations, she says, are to offer long-term
    disability coverage and remit premiums. The Board fulfilled its obligations
    under the CA. Therefore, there is no dispute arising out of the CA.

[12]

Manulife
, Barber points out,
assessed, paid and then terminated her long-term
    disability claim, pursuant to the terms and conditions of the Policy.
    Therefore, the dispute arises out of the Policy, not the

CA and is not arbitrable.

[13]

Barber argues the dispute does not fall
    within Category 2, as the motion judge found, because the CA does not oblige
    the Board to pay or to provide long-term disability benefits. The Board merely
    offers the coverage and pays premiums; Manulife provides the benefits.
    Furthermore, she argues, the dispute does not fall within Category 4, as the
    motion judge suggested, because the CA does not incorporate the insurance
    policy; the CA merely refers to the Policy number and provides a short
    description of the coverage.

[14]

Article 18 establishes Barbers rights to
    LTD benefits. They do more than merely oblige the employer to pay premiums for
    insurance

they cover terms, the amount of the disability
    benefits and even the definition of total disability, and it makes specific
    reference to the Policy. The employer may change insurers as long as the
    benefits defined in the CA are continued.

[15]

The fact that LTD benefits are paid under the Policy does not change the
    fact that Barbers entitlement to LTD benefits is provided by the CA. Indeed, t
he degree of detail Article 18 provides on the terms
    of the relevant insurance plan supports the correctness of the motion judges
    decision. We agree with Manulife when it notes, the language of Article 18
    demonstrates that the CA is the root of the contractual entitlement to the
    relevant disability insurance.

[16]

The decision of the motion judge is correct. Jurisdiction over this
    dispute belongs to an arbitrator and the motion judge correctly dismissed
    Barbers action under r. 21.
Accordingly, the
    appeal is dismissed. Manulife is awarded its costs of the appeal fixed in the
    amount of $ 2,000 inclusive of disbursements and HST
.

H.S.
    LaForme J.A.

"S.E. Pepall
    J.A."

G. Pardu J.A.

[1]
Brown and Beatty, Canadian Labour Arbitration, 3rd ed. (1988).