COURT OF APPEAL FOR ONTARIO

CITATION: Carroll v. Toronto-Dominion Bank,
    2021 ONCA 38

DATE: 20210121

DOCKET: C68245

Tulloch, Miller and Paciocco
    JJ.A.

BETWEEN

Marian L. Carroll

Applicant (Appellant)

and

The Toronto-Dominion Bank c.o.b.
    TD Bank Group, TD Waterhouse Private Investment Counsel Inc., TD Asset
    Management Inc. as Trustee of the TD Mutual Funds Trust and the TD Private
    Funds Trust

Respondents (Respondents)

Joseph Groia, David Sischy and Dawit
    Debssou, for the appellant

Linda Fuerst and Erika Anschuetz, for
    the respondents

Heard: November 18, 2020 by video conference

On appeal from the order of Justice Cory
    A. Gilmore of the Superior Court of Justice, dated March 17, 2020, with reasons
    reported at 2020 ONSC 1629.

Paciocco J.A.:

OVERVIEW

[1]

Marion Carroll was formerly employed by the Toronto-Dominion
    Bank (TD Bank) as a highly placed manager. She was responsible for the compliance
    of a group of TD Banks subsidiaries with legal and regulatory obligations, and
    internal policies, relating to the management of mutual funds.

[2]

In that capacity, Ms. Carroll claims to have
    exposed regulatory non-compliance and breaches of mutual fund trusts by TD
    Banks subsidiaries. She contends that this misconduct unjustly enriched TD Bank
    as well as its subsidiaries (jointly, TD). She claims that TD has succeeded
    in suppressing the full extent of its wrongdoing and its enrichment, including
    by wrongfully dismissing her from her employment in 2014.

[3]

Within two years of her dismissal, in 2016, Ms.
    Carroll launched a wrongful dismissal lawsuit which is still pending. In 2018, she
    began making whistleblower complaints to TD officials and to government
    regulators about the misconduct she allegedly uncovered. In September 2019,
    approximately five years after her dismissal, Ms. Carroll also launched the
    civil proceedings that are the subject of this appeal. Specifically, she issued
    an application seeking orders that would result in the disclosure, discovery,
    and redress of financial irregularities and misconduct, if any, by TD relating
    to its role as Trustee of designated mutual funds.

[4]

The application was dismissed pursuant to r. 21.01
    of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194
. The motion judge found that Ms. Carrolls
    application could not possibly succeed because Ms. Carroll lacks standing to
    bring the application. Ms. Carroll now appeals that ruling.

[5]

For reasons that follow, I would dismiss Ms.
    Carrolls appeal. I agree with the motion judge that Ms. Carroll required standing
    to bring the application, notwithstanding that the application relates to an
    alleged breach of trust. I also agree with the motion judge that Ms. Carroll
    lacks the standing required to maintain her application for any of the relief
    she seeks.

MATERIAL FACTS

[6]

Between August 8, 2011 and October 20, 2014, Ms.
    Carroll was employed by TD as a Senior Manager, Compliance. In this position,
    she carried primary responsibility for overseeing compliance by certain TD
    subsidiaries with their legal and regulatory obligations and internal policies
    relating to the management of mutual funds.

[7]

She contends that during her employment she made
    persistent efforts, despite reprisals, to identify and redress regulatory
    infractions and trust breaches committed by TD in the administration of TDs
    mutual fund products. Most significantly, she alleges that she discovered that TD
    unjustly enriched itself by more than $50 million by purchasing mutual fund
    units that were not in the best interest of unit holders in order to maximize undisclosed
    internal fees. She contends that her efforts ultimately required TD to
    self-report regulatory breaches that it had committed to the Ontario Securities
    Commission (OSC).

[8]

On October 20, 2014, while the OSC investigation
    was ongoing, Ms. Carroll was dismissed from her employment by TD. She
    attributes her dismissal to her efforts to expose and remedy TDs misconduct
    relating to its mutual fund products.

[9]

Approximately two weeks after her dismissal, TD
    finalized a settlement of more than $14 million with the OSC. Ms. Carroll
    maintains that the settlement agreement understates the nature and extent of
    the wrongdoing, as TD misled the OSC by failing to make full disclosure.

[10]

In 2016, Ms. Carroll commenced a lawsuit for
    wrongful dismissal, which is unrelated to the current appeal. She has also
    taken steps to expose TDs alleged malfeasance. In November 2018, four years
    after her dismissal, she sent a whistleblower complaint letter to the Chair
    of the Audit Committee and General Counsel of TD. Then, in September 2019, she
    sent whistleblower material to three bodies carrying regulatory
    responsibility relating to TDs mutual fund enterprises: the OSC, the United
    States Securities and Exchange Commission, and the Office of the Superintendent
    of Financial Institutions. Finally, and of most relevance to this appeal, she launched
    a civil proceeding against TD, by way of application, that is structured to
    uncover and remedy the wrongdoing she alleges.

[11]

The relief Ms. Carroll claims against TD is set
    out in her Fresh as Amended Application, issued on October 18, 2019.
    Specifically, Ms. Carroll:

·

sought standing and leave to apply for a passing
    of accounts pursuant to statute and the common law;

·

requested a declaration, if necessary, that she has
    standing to apply to compel a passing of accounts to remedy the reputational,
    financial, and personal harm caused to her by TDs misconduct;

·

asked for an order compelling TD to pass its
    accounts relating to designated mutual fund trusts, without notice to the
    unitholders who are the beneficiaries of those trusts;

·

sought the appointment of an independent
    accounting firm to conduct a full investigation of the trust accounts;

·

requested an order directing TD to disclose any
    breach of trust, financial irregularity or misconduct to beneficiaries and
    securities regulators relating to its role as trustee;

·

asked for an order indemnifying her from
    liability relating to any breach of trust found through the passing of
    accounts;

·

sought an order for an accounting and payment to
    beneficiaries of the trust for amounts equal to TDs wrongful gains; and

·

requested a declaration that TD had been unjustly
    enriched.

[12]

In response, TD brought a successful r. 21.01
    motion to dismiss the application. The motion judge ruled that it was plain and
    obvious that no reasonable cause of action had been pleaded because Ms. Carroll
    did not have standing to bring the application.

THE ISSUES

[13]

Ms. Carroll does not appeal the motion judges
    decision that she lacks standing to pass accounts pursuant to the
Substitute
    Decisions Act
, 1992
, S.O. 1992, c. 30, or any of the
Rules of
    Civil Procedure
. Nor does she take issue with the motion judges
    articulation of the test to be applied under r. 21.01, or with the propriety of
    dismissing an application under that rule where a proceeding is brought without
    standing. Her appeal is confined to the motion judges conclusion that Ms. Carroll
    clearly lacked standing. I would state the issues that Ms. Carroll raises as
    follows, and approach them in the following order:

A.

Did the motion judge err by failing to invoke the courts inherent
    jurisdiction to supervise trusts?

B.

Did the motion judge err by applying the wrong standing test?

C.

Did the motion judge err by finding that Ms. Carroll had not pleaded
    facts establishing a
prima

facie

case of standing?

D.

Did the motion judge err by failing to consider all aspects of the
    relief sought when determining Ms. Carrolls standing?

[14]

As I conclude that the motion judge made none of
    these errors, I would dismiss the appeal.

ANALYSIS

A.

Did the Motion Judge Err by failing to invoke
    the courts inherent jurisdiction to supervise trusts?

[15]

Ms. Carroll argues that the inherent
    jurisdiction of courts to administer trusts makes standing subordinate, and
    largely irrelevant, where allegations of fraudulent or improper misconduct are
    made against a trustee. As I understand her argument, Ms. Carroll maintains
    that once a court receives allegations that a trust has been breached, the role
    of the courts as the guardian of trusts is triggered, regardless of who
    initiated the application, thereby obliging the courts to resolve the
    litigation. Hence, in Ms. Carrolls view, the motion judge erred in requiring her
    to satisfy legal standing tests.

[16]

Relatedly, Ms. Carroll appears to be suggesting
    that the motion judge also erred by abdicating her judicial responsibility to
    address the alleged breaches of trust by giving weight to the fact that there
    are alternative means available for trust breaches to be addressed.

[17]

I would firmly reject Ms. Carrolls submissions.
    There is no support for the claim that the inherent jurisdiction of courts to supervise
    or administer trusts makes standing a subordinate or largely irrelevant
    consideration where allegations of fraudulent or improper misconduct are made
    against a trustee. This claim misconceives the true nature of the inherent
    jurisdiction of courts to supervise or administer trusts and is contrary to basic
    trust principles.

[18]

Courts assumed inherent jurisdiction to supervise
    and administer trusts so that trusts could be given legal force: Donovan W.M.
    Waters, Q.C., Mark R. Gillen & Lionel D. Smith, eds.,
Waters Law of
    Trusts in Canada
, 4th ed. (Toronto: Thomson Reuters, 2012), at pp. 1165-66;
    Daniel Clarry,
The Supervisory Jurisdiction Over Trust Administration
(Oxford: Oxford University Press, 2018), at para. 2.11. The enforcement of
    trusts was not achieved by empowering courts to act as roving commissions of
    inquiry into their proper performance, but by empowering courts to assist those
    with an interest in trusts in enforcing and compelling the performance of those
    trusts.

[19]

Initially, the inherent jurisdiction to
    supervise and administer trusts was recognized primarily to protect the
    interest of beneficiaries:
Crociani v. Crociani
, [2014] UKPC 40, at
    para. 36. Without the assumption of jurisdiction by courts, beneficiaries would
    lack legal authority to enforce trusts because trustees are the legal owners of
    trust property, and therefore hold the bundle of enforceable legal rights that
    property enjoyment entails. The only way to ensure that beneficiaries can enjoy
    trust property they do not own is for courts to take jurisdiction and impose
    personal obligations on trustees to use the legal rights they hold for the
    benefit of the beneficiaries, according to the terms of the trust:
McLean v.
    Burns Philp Trustee Co. Pty. Ltd.
(1985), 2 N.S.W.L.R. 637 (S.C.), at p.
    933.

[20]

Given that trusts are enforced by imposing
    personal obligations on trustees, if courts did not intervene, a trust would
    fail where a trustee would not or could not discharge their personal
    obligations because of refusal or incapacity. Courts therefore accepted the
    inherent jurisdiction to assume the administration of such trusts, based on the
    maxim of equity that no trust should fail for want of a trustee:
Clarry
, at para. 1.04.

[21]

In this way, courts of equity claimed the
    inherent jurisdiction at the behest of beneficiaries to supervise, and where
    appropriate intervene in, the administration of a trust where there is no
    trustee to carry it on, or where the trustee wrongfully declines to act or
    refuses to disclose trust accounts and supporting information or is otherwise
    acting improperly:
Halsburys Laws of England
, Vol. 98,
Trusts
    and Powers
 (London: LexisNexis, 2019), at para. 626.

[22]

Given the significant obligations that courts
    impose on trustees and the desire to enable practical effect to be given to a
    trust, courts have also recognized the inherent jurisdiction to assist
    trustees in the administration of trusts where such assistance is required:
MF
    Global UK Ltd. (In Special Administration), Re
, [2013] EWHC 1655 (Ch.), at
    paras. 26, 32. For example, there is inherent jurisdiction to assist trustees where
    difficulties have arisen which cannot be removed without the assistance of the
    court, or where the decision of the court on a doubtful question connected with
    the trust or on its proper administration is sought by the trustee:
Halsburys
,

Vol. 98, at para. 626;
Waters
    Law of Trusts
, at pp. 1165-66.

[23]

To be sure, on occasion access to the inherent
    jurisdiction of courts has been extended to others who have an interest in a trust,
    such as creditors or those with contingent interests, particularly where that
    jurisdiction is supported by statute: see
McLean v. Burns Philp; Waters
    Law of Trusts
, at p. 1122. However, it can readily be seen that the
    inherent jurisdiction to supervise and administer trusts exists to assist the
    parties to the trust relationship or those who are interested in the trusts. As
    such, the inherent jurisdiction of courts to supervise and administer trusts is
    not inconsistent with the imposition of standing requirements. To the contrary,
    it is entirely in keeping with the role inherent jurisdiction performs to ensure
    that those who seek to invoke the inherent jurisdiction to supervise or
    administer trusts have an interest in the trusts they seek to enforce.

[24]

The position advanced by Ms. Carroll during the
    oral hearing, that courts of equity have liberated the inherent jurisdiction
    from standing requirements in order to protect the interests of incapacitated
    beneficiaries who cannot effectively sue to enforce trust obligations, is also
    inaccurate.

[25]

In fact, courts of equity have done the
    opposite. They have protected the interests of the incapacitated through the
    conventional means of granting standing to others to enforce trusts on their
    behalf, including guardians and personal representatives. There are now
    appointed officials who have also been given statutory authority to enforce
    trusts. For example, the Childrens Lawyer can enforce trusts:
Courts of
    Justice Act
, R.S.O. 1990, c. C.43, s. 89(3). So, too, can the Public
    Guardian and Trustee:
Substitute Decisions Act, 1992
;
Public
    Guardian and Trustee Act
, R.S.O. 1990, c. P.51; and see
Waters Law of
    Trusts
, at p. 133; and Eileen E. Gillese,
The Law of Trusts
, 3rd
    ed. (Toronto: Irwin Law Inc., 2014), at p. 40. There is a narrow statutory
    exception that dispenses with private interest standing by enabling anybody to
    propose an arrangement for the variation of a trust for an incapacitated beneficiary:
Variation of Trusts Act
, R.S.O. 1990, c. V.1; Gillese, at p. 99. But
    this exception proves the rule. Simply put, the methods used to protect
    incapacitated beneficiaries do not support Ms. Carrolls position. They
    contradict it.

[26]

Not surprisingly, Ms. Carroll produced no
    authority to support her position that standing is subordinate and largely
    irrelevant in breach of trust cases. To the contrary, the authorities put
    before this court include illustrations of courts considering whether litigants
    have the standing required to raise such claims:
McLean v. Burns Philp
; and see
Gallant v. Gaudet

(1996),
    149 Nfld. & P.E.I.R. 31 (P.E.S.C.T.D.), at para. 25.

[27]

The position advanced by Ms. Carroll not only
    lacks support, it is also contrary to basic trusts principles. The logical
    implication of her position is that even if capacitated beneficiaries choose
    not to enforce the trust benefits that they are entitled to, strangers to the
    trust may do so. This outcome is not only unwarranted, it is contrary to the
    essential character of a trust, namely, an enforceable personal obligation owed
    by a trustee to the beneficiary, respecting property: see David Hayton, Paul
    Matthews & Charles Mitchell, eds.,
Underhill and Hayton: Law of Trusts
    and Trustees
, 18th ed. (London: LexisNexis, 2010), at p. 2; Gillese, at p.
    5. Simply put, if a beneficiary with capacity does not wish to enjoy the
    benefits of the personal obligation owed by the trustee, that obligation should
    not be enforced.

[28]

It is also contrary to the beneficiary
    principle, that, subject to exception, to be valid, trusts must have a
    beneficiary capable of enforcing the trust:
Morice v. Bishop of Durham
(1804), 32 E.R. 656 (Ch.), affd (1805) 32 E.R. 947 (Ch.);
In re Astors
    Settlement Trusts
, [1952] Ch. 534 (Eng.). The theory underlying the
    beneficiary principle is that trusts are, by definition, enforceable equitable
    obligations, and, without a beneficiary, there would be no-one with the
    standing to enforce the trust, thereby defeating the very existence of a trust:
    see
Astors
, at pp. 546-47, 549;
Philip H.
    Pettit,
Equity and the Law of Trusts
, 12th ed. (Oxford: Oxford University Press, 2012), at pp. 59-60
. If non-beneficiaries could enforce trusts, the beneficiary
    principle would not have developed. It would also be possible to create enforceable,
    non-charitable, impersonal purpose trusts, something the law in fact disallows.

[29]

The motion judge was therefore correct in not
    accepting Ms. Carrolls claim that standing is a secondary, if not irrelevant,
    consideration in trust litigation. Standing is required to sue for breaches of
    trust.

B.

Did the Motion Judge err by Applying the Wrong
    Standing test?

[30]

Ms. Carroll argues that if standing is required,
    the motion judge was obliged to apply a flexible, discretionary, purposive
    approach to standing that asks whether there is a real and legitimate basis
    for asking the court to adjudicate legal issues. Ms. Carroll contends that the
    motion judge erred by not applying this test, and that, had she done so, Ms.
    Carroll would have been found to have standing given that she is a
    whistleblower who has sacrificed a great deal, thereby acquiring a genuine
    interest and real stake in the outcome of the proceedings.

[31]

I do not agree with Ms. Carrolls conception of
    the test to be used in determining her standing. As I will explain, where
    legislation does not provide standing, there are two paths to securing standing
    to initiate proceedings, private interest standing and public interest
    standing. These paths are distinct. Ms. Carroll does not seek public interest
    standing since it is clearly unavailable in her case. Instead, she argues that
    public interest standing principles should inform whether she has private
    interest standing. I do not agree with this proposition. Public interest
    standing principles do not apply where the private interest standing test
    governs. The motion judge would have erred had she applied the standing test
    Ms. Carroll proposes.

[32]

I will begin by describing the tests for private
    interest and public interest standing.

[33]

To have private interest standing, a person must
    have a personal and direct interest in the issue being litigated:
Campisi
    v. Ontario (Attorney General)
, 2018 ONCA 869, 144 O.R. (3d) 638, at para.
    4, leave to appeal refused, [2019] S.C.C.A. No. 52. They must themselves be
    specifically affected by the issue:
Canada (Attorney General) v. Downtown
    Eastside Sex Workers United Against Violence Society
, 2012 SCC 45, [2012]
    2 S.C.R. 524, at para. 1. It is not enough that the person has a sense of
    grievance or will gain the satisfaction of righting a wrong or is upholding
    a principle or winning a contest:
Finlay v. Canada (Minister of Finance)
,
    [1986] 2 S.C.R. 607, at para. 21, citing
Australia Conservation Foundation
    Inc. v. Commonwealth of Australia
(1980), 28 A.L.R. 257 (H.C.A.), at p. 270.
    As it is sometimes put, to have private interest standing, a person must have a
    personal legal interest in the outcome:
Landau v. Ontario (Attorney
    General)
, 2013 ONSC 6152, 293 C.R.R. (2d) 257, at para. 16. Where the
    party initiating the litigation has a personal legal interest in the outcome,
    standing exists as of right:
Landau
, at para. 21. An appeal of a private
    interest standing decision is therefore evaluated using a correctness standard:
Miner v. Kings (County)
, 2017 NSCA 5, 60 M.P.L.R. (5th) 1, at para.
    23.

[34]

In public law cases
, however, Canadian
    courts have relaxed these limitations on standing and have taken a flexible,
    discretionary approach to public interest standing, guided by the purposes
    which underlie the traditional limitations (emphasis added):
Downtown
    Eastside
, at paras. 1, 22. This more flexible approach is warranted to
    ensure that legislation is not immunized from challenge:
Downtown Eastside
,
    at para. 33, citing
Canadian Council of Churches v. Canada (Minister of
    Employment and Immigration)
, [1992] 1 S.C.R. 236, at p. 256. As Cromwell
    J. explained in
Downtown

Eastside
, at para. 37:

In exercising the discretion to grant
    public interest standing
, the court must consider
    three factors: (1) whether there is a serious justiciable issue raised;
    (2) whether the plaintiff has a real stake or a genuine interest in it;
    and (3) whether, in all the circumstances, the proposed suit is a reasonable
    and effective way to bring the issue before the courts. The plaintiff seeking
    public interest standing must persuade the court that these factors, applied
    purposively and flexibly, favour granting standing. [Emphasis added, citations
    omitted.]

[35]

I have added emphasis to the above passages from
Downtown Eastside
to reinforce that the flexible, discretionary,
    purposive approach that has been adopted applies only in public interest
    litigation. Similar developments have not occurred in private law proceedings. There
    are good reasons why this is so.

[36]

First, the reasons for liberating standing
    requirements in public interest litigation do not apply in the same degree to
    private litigation. For example, there will invariably be greater justification
    for using public legal resources to address matters of public interest than
    there will be for using public legal resources to vindicate private interests
    that the parties affected are not seeking to vindicate.

[37]

As well, public interest litigation tends to
    affect the interests of many, particularly where laws are being challenged. In
    contrast, the outcome of private litigation has a unique impact on those whose
    legal interests are directly affected by the litigation. They are therefore the
    ones who should carry out the litigation so that they can make decisions
    relating to the protection of their interests.

[38]

Ms. Carrolls proposed action illustrates the
    point. She is suing for an investigation and for the passing of accounts
    without notice to the unitholders and has requested that unitholders be
    compensated. If she were to be granted standing, the private information of
    unitholders would be accessed for the lawsuit without their input. Further, if she
    were to be given standing to litigate, she would not only control the tactical
    choices made during litigation but would also have standing to settle the
    litigation. Despite her lack of personal legal interest in the outcome, she would
    be empowered to manage the litigation in ways that could potentially compromise
    the financial interests of the unitholders, who hold the personal legal
    interests in question.

[39]

Finally, and most profoundly, the driving
    consideration in using flexible standing standards in public interest
    litigation does not apply to private litigation. Specifically, there is not the
    same concern that, without a flexible standing test, wrongdoing will
    effectively be immunized. In private law cases, if the parties with a personal
    legal interest that is affected by wrongdoing forego their right to sue or
    raise an issue, thereby immunizing the wrongdoing, this is a private matter,
    not one of public concern.

[40]

Of course, where the private wrongdoing occurs
    in a regulated enterprise and contravenes the law, there will be a public
    interest in intervening, but that public interest is to be protected by
    regulatory enforcement, not through the surrogacy of civil suits initiated by
    strangers to the private rights at stake.

[41]

Ms. Carroll has provided us with no authority
    applying the public interest standing principles articulated in
Downtown
    Eastside
to private interest standing. For the reasons I have provided, I
    am not persuaded that such crosspollination should start here. In my view, the
    refinement of the public interest standing principles in
Downtown Eastside
has
    not altered the law of private interest standing.

[42]

If Ms. Carrolls position is the more modest one
    that the principles from
Downtown Eastside
should be applied exceptionally
    where a knowledgeable whistleblower seeks to launch a lawsuit to expose
    wrongdoing in a private institution, I am equally unpersuaded. I appreciate
    that it has long been recognized that there is a public interest in exempting
    whistleblowers from confidentiality obligations, so that they can expose
    misconduct that should be exposed in the public interest:
Initial Services
    Ltd. v. Putterill and Another
, [1968] 1 Q.B. 396 (C.A.). However, there is
    a difference between suppressing confidentiality obligations in the public
    interest, and empowering whistleblowers who have no legal interest in the
    outcome of litigation to initiate such litigation. There is good reason for the
    former but no reason for the latter. A whistleblower can expose misconduct
    without commencing private litigation involving the legal rights of others. As
    TD noted before us, subject to the law of privilege, nothing prevented Ms.
    Carroll from sharing her inside information with regulators, and there is
    nothing preventing her from sharing her intelligence with unitholders, or from
    appearing as a witness should the unitholders choose to sue.

[43]

In my view, the motion judge considered the
    correct standing tests in determining whether Ms. Carroll had standing. She determined
    that the statutory standing provisions that govern standing to pass accounts do
    not apply, and she considered whether Ms. Carroll had a personal legal interest
    in the litigation that could support private interest standing. She also
    considered and correctly rejected Ms. Carrolls contention that her status as a
    knowledgeable whistleblower gave her standing to bring the application, or that
    more generous standing rules apply in breach of trust cases. I would therefore reject
    this ground of appeal.

C.

Did the motion judge err by finding that Ms.
    Carroll had not pleaded facts establishINg a
prima facie
case of
    standing?

[44]

The party initiating civil proceedings has the
    burden of establishing their standing by pleading facts that would support
    standing:
The Polish National Catholic Church of Canada v. Polish National
    Church,
2014 ONSC 4501, at para. 41. Ms. Carroll has not pled facts
    that could disclose a
prima

facie

case that the
    application she initiated would affect her personal legal interests. I would
    therefore dismiss this ground of appeal.

[45]

As the motion judge found, Ms. Carroll was not a
    unitholder in the trust and had no financial interest in the outcome of the
    litigation she commenced, and, despite her role as a whistleblower, she lacked a
    direct personal interest in the litigation. She pleaded no facts that could
    disclose a personal legal interest in the trusts that were allegedly breached.

[46]

The motion judge was also correct in rejecting Ms.
    Carrolls contention that she could sustain a standing claim based on her
    potential liability as a constructive trustee. There are three possible avenues
    to personal liability as a constructive trustee:

·

As a knowing assister, who knowingly or
    wilfully blindly encouraged or assisted in a dishonest and fraudulent breach of
    trust:
Air Canada v. M & L Travel Ltd
.
, [1993] 3 S.C.R.
    787, at pp. 809-11;

·

As a knowing receiver, who knowingly, or
    wilfully blindly, or with knowledge of facts which would put an honest person
    on inquiry, received trust property in their own capacity in breach of trust:
Air
    Canada
, at pp. 810-13; or

·

As a
trustee
de son tort
, who assumed the role of trustee without proper appointment
    and then breached the trust:
Air Canada
,
at pp. 808-9.

[47]

The motion judge addressed the first avenue of
    potential liability, knowing assistance, and dismissed it because there was
    no evidence before her that Ms. Carroll participated in any breaches of trust.
    Indeed, the pleadings before the motion judge maintained that Ms. Carroll made
    efforts to prevent and remedy any alleged wrongdoing.

[48]

Ms. Carroll argues on appeal that, despite this,
    it is not plain and obvious that she would not be exposed to personal liability
    as a constructive trustee, given her role as a corporate officer of the Trustee
    at the time the maladministration occurred. I disagree. The motion judge was
    correct in finding that there was no foundation that could support Ms.
    Carrolls liability as a knowing assister. There was no need for the motion
    judge to address knowing receiver or
trustee
de son tort

liability, as neither form of liability is even hinted
    at in the pleadings. Absolutely no suggestion is made that Ms. Carroll received
    trust property, and there is no indication that she assumed the role of
    trustee.

[49]

In these circumstances, the fact that Ms.
    Carroll sought indemnity in her application does not provide a path for her
    standing. It is incumbent on the claimant to clearly plead the facts upon
    which it relies in making its claim:
R. v. Imperial Tobacco Canada
, 2011
    SCC 42, [2011] 3 S.C.R. 45, at para. 22. Ms. Carroll has pled no facts
    that could support such relief.

[50]

I would therefore reject Ms. Carrolls
    contention that the motion judge erred in finding that she had not pleaded
    facts establishing a
prima

facie

case of standing. That
    decision was correct.

D.

DID THE MOTION JUDGE ERR BY FAILING TO CONSIDER
    ALL ASPECTS OF THE RELIEF SOUGHT WHEN DETERMINING MS. CARROLLS STANDING?

[51]

Ms. Carroll argues that the motion judge erred
    by focusing entirely on whether she had standing to pass accounts, disregarding
    the other relief she requested. I would not give effect to this ground of
    appeal, either.

[52]

First, I am not persuaded that the motion judge considered
    only the relief related to the passing of accounts. As just described, the
    motion judge considered the relief Ms. Carroll claimed in relation to her
    potential liability as a constructive trustee. The motion judges careful
    decision is responsive to the arguments made. I would not be prepared to find
    that because the motion judge did not expressly mention some of the specific
    relief requested, she must have failed to consider that relief in coming to the
    decision that she did.

[53]

In any event, the motion judges holding that
    Ms. Carroll did not have statutory or private interest standing was correct and
    prevents Ms. Carroll from seeking any of the relief she claims. Even had the
    motion judge failed to consider all the relief requested, it would have made no
    difference to the outcome.

CONCLUSION

[54]

I would dismiss the appeal. If agreement is not
    reached as to costs, I would invite the parties to provide costs submissions of
    no more than 3 pages, accompanied by bills of costs. The respondent is to
    provide their costs documentation within 10 business days following the release
    of this decision. I would require the appellant to respond within 5 business
    days.

Released: January 21, 2021 MT

David
    M. Paciocco J.A.

I
    agree. M. Tulloch J.A.

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


WARNING

Prohibitions under the
Child, Youth and
    Family Services Act
, 2017, S.O. 2017, c.14, Sched. 1 apply to this
    decision:

Prohibition re identifying child

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

Prohibition re identifying person charged

87(9)
The court may make an order prohibiting the publication of information that has
    the effect of identifying a person charged with an offence under this Part.

Transcript

87(10)
No
    person except a party or a partys lawyer shall be given a copy of a transcript
    of the hearing, unless the court orders otherwise.

Offences re publication

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

COURT OF APPEAL FOR ONTARIO

CITATION: Catholic Childrens Aid Society of
    Toronto v. V.R., 2021 ONCA 209

DATE: 20210407

DOCKET: C68445

Fairburn A.C.J.O., van Rensburg
    and Huscroft JJ.A.

BETWEEN

The Catholic Childrens Aid
    Society of Toronto

Applicant (Respondent)

and

V.R.

Respondent (Appellant)

David Miller, for the appellant

Chris Andrikakis, for the respondent

Heard by video conference:
    March 26, 2021

On appeal from the order of Justice Carolyn
    J. Horkins of the Superior Court of Justice, dated June 9, 2020, with reasons
    reported at 2020 ONSC 3508, allowing in part an appeal from the order of
    Justice Manjusha Pawagi of the Ontario Court of Justice, dated April 5, 2019.

REASONS FOR DECISION

[1]

This is a second appeal from a decision finding three-year-old
    D.R. in need of protection and placing her in the Societys extended care with
    a view to adoption by her foster parents and with no order for access. The
    appeal judge allowed the mothers appeal only in respect of the access order,
    finding that the trial judge erred in law by applying the wrong test. The
    appeal judge proceeded to make the access decision afresh but reached the same
    conclusion and refused access.

[2]

The mother appealed from the entire order below
    but now appeals only the no access portion of that order. She requests a
    rehearing of the access issue or, in the alternative, an order for virtual
    access to D.R. at least six times each year as well as recent pictures of the
    child at least four times each year. She specifically asks for both mother and
    child to be access holders and access recipients.

[3]

D.R.s father did not participate in either the
    trial or the appeal below and did not participate in this appeal. He was
    deported to Portugal in 2018. The appellant was deported to Portugal prior to
    this appeal being heard.

[4]

The appeal is dismissed for the reasons that
    follow.

Background

[5]

D.R. was born in October 2017. She was seriously
    injured on two occasions in the first few months of her life. The first injury
    occurred in November 2017, when she suffered a spiral fracture of her upper
    arm. Dr. Shouldice, head of Paediatric Medicine at the Hospital for Sick
    Children and overseer of the Suspected Child Abuse and Neglect unit, concluded
    that this injury was consistent with an explanation given by the father one
    week after the injury was sustained. The second serious injury occurred
    February 2018, when D.R. was four months old and in the temporary custody of
    her parents. She was taken to the hospital after she suffered seizures, was not
    breathing well, and her eyes were rolled backwards. Her injuries included
    subdural haemorrhages and retinal haemorrhages. Dr. Shouldice concluded that
    the most likely cause of the injuries was blunt force trauma, inertial forces,
    or a combination of the two.

[6]

The trial judge rejected the appellants innocent
    explanations for the injuries. She found that D.R. was injured in the care of
    her parents and that her injuries were intentionally inflicted by the mother and/or
    father. The trial judge found that D.R. was a child in need of protection and
    placed her in the extended care of the Society with no parental access.

[7]

The appellant mother appealed on several grounds
    but her appeal was dismissed, save in one respect. The appeal judge found that
    the trial judge wrongly put the onus on the appellant to demonstrate that
    access would be in the childs best interests. Rather than remit the matter,
    the appeal judge assumed jurisdiction to determine the access question. The appeal
    judge concluded that access was not in the best interests of the child and made
    the no access order that is the subject of this appeal.

Discussion

[8]

The appellant submits that on any reasonable
    application of the best interests analysis on the evidence in this case, an
    access order should result. The appellant says that she has demonstrated normal,
    healthy parenting skills and that D.R. enjoys and has benefited from visits
    with her. The appellant is happy that the foster parents are willing to adopt
    D.R. and access would not impair D.R.s opportunities for adoption. Access
    would allow D.R. a connection to her biological family, Portuguese roots,
    culture and language. The appellant says that there is no risk of harm through the
    requested access in the form of video calls, letters, cards, and gifts.

[9]

This submission is, in essence, an invitation to
    retry the matter and to substitute this courts decision. That is not our
    function on appeal. The appeal judges decision to deny access is entitled to
    deference from this court, absent a palpable and overriding error. We see no
    error that would allow this court to intervene.

[10]

The appeal judge conducted a best interests
    analysis, assessing whether the relationship was beneficial and meaningful to
    the child in accordance with ss. 105(5) and (6) of the
Child, Youth and Family
    Services Act
, 2017, S.O. 2017, c. 14,
    Sched. 1
, and the criteria set out in s. 74(3).

[11]

D.R.s age precluded the ascertainment of her
    wishes, and the appeal judge noted that she is not First Nations, Inuk, or
    Métis. The appeal judge went on to consider the relevant circumstances under s.
    74(3)(c) based on the findings of the trial judge.

[12]

The most significant of these was the degree of
    risk that led to the protection finding, given the trial judges finding that one
    or other of the parents had intentionally inflicted the injuries on the child
    or failed to protect the child from the other caregiver. The appeal judge also
    noted that the seizure episodes occurred more than two hours before the child
    arrived at the hospital and that the medical evidence was that the delay placed
    the child at a higher risk for low oxygen damage to the brainat increased
    risk for developmental delay, long term neurological problems and learning
    difficulties.

[13]

The appeal judge noted that the child has
    benefited from the continuity of the care she has received and was developing
    extremely well in the care of her foster parents. The appeal judges key
    findings are set out in paras. 151-2, in which she stated:

The child has not been in her mothers care
    since she was four months old. While the mothers access visits with the child
    have gone well,
there is no factual
    foundation to find that their relationship is beneficial and meaningful to the
    child
. There is no evidence as to how the mother might provide
    for the childs needs. The mother is currently the subject of a deportation
    order and, if implemented, she will be returned to Portugal.

In summary, I find that it is not in the
    childs best interests to order that the mother have access. I make no order as
    to access. [Emphasis added.]

[14]

The thrust of the appeal judges decision is
    clear and reveals no error.  Although the reasons on the specific issue of
    access could have been more detailed, they leave no doubt as to the
    reasonableness of the decision.

[15]

This is a case in which the appellant has had
    only a very brief relationship with D.R., having cared for her for two
    non-consecutive months. D.R. has spent most of her life in her foster parents
    care and has been thriving there. During the time she was cared for by the
    appellant, D.R. was seriously injured on two occasions and the trial judge
    found that the injuries incurred on the second occasion were inflicted
    intentionally by either or both parents. The appellants explanation for how these
    injuries occurred was rejected by the trial judge.

[16]

The appeal judges finding that the most significant
    circumstance is the degree of risk that led to the protection finding is
    supported by the evidence and is reasonable. So too is the appeal judges
    finding that there is no factual foundation supporting a finding that the
    relationship is beneficial and meaningful to D.R., regardless of how well the
    access visits had gone at the time she made her decision. In that regard, the
    trial judge noted the foster fathers evidence that D.R. was sometimes upset
    after access visits as well as the access workers evidence that although the access
    visits went well, D.R. left without a visible reaction to parting from the
    appellant.

[17]

The appeal judges decision is fortified by the
    fresh evidence proffered by the Society. The appellant does not oppose the admission
    of this evidence  an affidavit from D.R.s foster father  and in our view it
    is properly admitted as it is directly relevant to the childs best interests.

[18]

D.R. has been in the care of the deponent and
    his wife since February 2018. The appellant has not had in-person access with
    D.R. since supervised visits ended in March 2020. Since that time, the
    appellant has maintained contact with D.R. by means of brief, biweekly video
    call visits that have been facilitated by the foster parents. Initially the
    video calls lasted 30-40 minutes, but recently that has dropped to 15-20
    minutes. He states that D.R. seems a bit tense during the calls and needs
    frequent reassuring following the calls.

[19]

In summary, there is no basis to interfere with the
    appeal judges no access order.

[20]

The appeal is dismissed. No costs were requested
    and none are ordered.

Fairburn
    A.C.J.O.

K. van
    Rensburg J.A.

Grant Huscroft
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Champoux v. Jefremova, 2021 ONCA 92

DATE: 20210212

DOCKET: C67511

van Rensburg, Hourigan and Brown JJ.A.

BETWEEN

Penny-Lee Champoux

Plaintiff (Appellant)

and

Ljudmilla Jefremova
and Mohammed Khodabandehloo

Defendants (
Respondent
)

Geoffrey Adair and Peter Denton, for the appellant

Graham Ragan and Katie Ahn, for the respondent

Heard: November 19, 2020, by video conference

On appeal from the judgment of Justice James A. S. Wilcox
    of the Superior Court of Justice, dated September 4, 2019, with reasons
    reported at 2019 ONSC 5143.

Hourigan J.A.:

I.        Introduction

[1]

This is an appeal of the dismissal of a medical malpractice claim. The
    trials focus was whether the respondent, Ljudmilla Jefremova, breached the
    standard of care of a reasonable and prudent doctor when she treated Penny-Lee
    Champoux. The trial judge found that Dr. Jefremova met that standard of care
    and dismissed the claim in its entirety.

[2]

Two issues are raised on the appeal: (i) whether the trial judges
    reasons are insufficient to permit appellate review; and (ii) whether the trial
    judge erred in his consideration of a Response to Request to Admit filed by
    counsel for Dr. Jefremova.

[3]

As will be explained below, I have concluded that the judgment must be
    set aside and a new trial ordered. I accept the argument advanced by Ms.
    Champoux that the trial judge failed in his reasons to analyze essential
    components of her theory of liability and explain why he found that Dr.
    Jefremova did not breach the standard of care. Consequently, the trial judges
    reasons do not permit appellate review.  Regarding the analysis of the Response
    to Request to Admit, the trial judge issued contradictory reasons about the
    central issue of whether it constituted an accurate admission. This resulted in
    an unfair trial for Ms. Champoux and also warrants a new trial.

II.       FACTS

[4]

Given that I would order a new trial, only a brief recitation of the
    facts is necessary to put the grounds of appeal in context.

[5]

Ms. Champoux attended Kirkland Lake Hospitals emergency department on
    June 29, 2012, intending to seek treatment for an abscess on her buttocks area
    and hyperglycemia, as she could not get her high blood sugars under control.
    She has various underlying health problems, including diabetes, PTSD, and
    fibromyalgia. At the emergency department, a nurse triaged Ms. Champoux, took
    her vital signs and did a blood sugar reading.

[6]

Dr. Jefremova then examined Ms. Champoux and noted that her heart rate
    was elevated and that her blood sugar level was 11.6. However, prior hospital
    records indicated that Ms. Champouxs heart rate was always elevated without
    cardiac issues and that her normal glucose level was between 8 and 12.5. Dr.
    Jefremova assessed the abscess, decided it was not yet ready to break, and sent
    Ms. Champoux home.

[7]

Ms. Champoux returned to the emergency department on July 2, 2012,
    because her abscess had grown rapidly, and her blood sugar was higher. She was
    admitted for surgery to drain the abscess and discharged on July 13, 2012. Ms.
    Champoux was re-admitted to the hospital several times afterward to deal with
    abscess drainage.

[8]

Ms. Champoux brought a medical malpractice action against Dr. Jefremova
    and Dr. Mohammed Khodabandehloo, who had given her a cortisone shot on June 19,
    2012. However, the action against Dr. Khodabandehloo was dismissed before
    trial.

[9]

In his reasons for decision, the trial judge reviewed the evidence of
    Ms. Champoux, her mother-in-law, Dr. Jefremova, and two experts (Dr. Fernandes,
    who testified for Ms. Champoux, and Dr. McMurray, who testified for Dr.
    Jefremova), and documents related to the medical events. The evidence focused
    on whether Dr. Jefremova breached the standard of care of a reasonable and
    prudent doctor in her treatment of Ms. Champoux on June 29, 2012.

[10]

The
    location of the abscess was an important issue because the standard of care
    differs based on whether the abscess was a simple buttocks abscess, as opposed
    to a perianal, ischiorectal, or anorectal abscess. On the issue of the location
    of the abscess, a Request to Admit served by Ms. Champouxs counsel became
    significant at trial. It was served on Dr. Jefremovas counsel on September 19,
    2018. Among other things, Ms. Champoux requested that Dr. Jefremova admit that
    [o]n June 29, 2012, Penny Lee Champoux had a perianal abscess.

[11]

On
    October 9, 2018, a Response to Request to Admit was delivered by counsel for
    Dr. Jefremova. Among other refusals, Dr. Jefremovas counsel refused to admit
    that [o]n June 29, 2012, Penny Lee Champoux had a perianal abscess. In the
    reason for this refusal, Dr. Jefremovas counsel stated that [o]n June 29,
    2012, Penny Lee Champoux presented with a buttock abscess/swollen nodule in the
    general perianal area.

[12]

At
    trial, Ms. Champouxs counsel closed his case on December 12, 2018, without
    referring to the Request to Admit. It was entered as exhibit 9 on December 14,
    2018, as part of a package that included the Request to Admit, the Response to
    Request to Admit, and a document entitled Admissions Made by the Defendant
    Jefromova [
sic
].

[13]

Dr.
    McMurrays evidence in chief was that Ms. Champoux suffered from a simple
    buttock abscess and that Dr. Jefremova had met the standard of care. In
    cross-examination, Ms. Champouxs counsel put to Dr. McMurray that Dr.
    Jefremova had formally admitted that on June 29 the abscess was in the general
    perianal area or region. Dr. McMurray opined that if it was clearly a perianal
    abscess or in the perianal region, Ms. Champoux should not have been sent home
    and the abscess should have been incised and drained right away by the
    emergency room physician or a surgeon.

[14]

On
    December 15, 2018, Dr. Jefremovas counsel wrote to Ms. Champouxs counsel to advise
    that the Response to Request to Admit had left her office through inadvertence
    and without Dr. Jefremovas instructions, and to request consent to withdrawal
    of the admission. By email dated December 16, 2018, Ms. Champouxs counsel
    advised that his client would not consent to the withdrawal of the admission.

[15]

Dr.
    Jefremova brought a motion seeking to clarify or, in the alternative, withdraw the
    admission contained in the Response to Request to Admit. In written reasons,
    the trial judge dismissed the motion to withdraw the admission. He also found
    that it was inappropriate at that point in the proceeding to rule on the
    interpretation to be given to the Response to Request to Admit. Instead, he
    held that the interpretation of the admission was best left for consideration
    after final submissions.

[16]

In
    his reasons for decision, the trial judge considered all of the evidence and
    found that on June 29, 2012, Ms. Champoux had presented with an abscess located
    near the middle of the left buttock cheek. He concluded that Dr. Jefremova had
    met the standard of care based on the location of the abscess. The trial judge
    did not go on to consider the issues of causation or damages. The action was
    dismissed.

III.

ANALYSIS

[17]

As
    noted, Ms. Champoux makes two arguments on this appeal. The first is that the
    trial judge provided insufficient reasons. The second is that the trial judge
    erred in disregarding Dr. Jefremovas formal admission in determining the
    location of the abscess on June 29, 2012.  These arguments will be considered
    in turn below.

(a)

Insufficient Reasons

[18]

The
    law regarding insufficient reasons is well established. Reasons serve many
    functions, they: (i) justify and explain the result; (ii) tell the losing party
    why they lost; (iii) provide public accountability and satisfy the public that
    justice has been done and is seen to have been done; and (iv), permit effective
    appellate review:
F.H. v. McDougall
, 2008 SCC 53, [2008] 3 S.C.R. 41,
    at para. 98. Meaningful appellate review is precluded if the decision of the
    court below does not provide some insight into how the legal conclusion was
    reached and what facts were relied on in reaching that conclusion:
Longo v.
    MacLaren Art Centre
, 2014 ONCA 526, 323 O.A.C. 246, at para. 63.

[19]

When
    reasons do not fulfill one or more of their functions, it may be necessary for
    the appellate court to send the matter back to the court below for a new
    hearing. This is hardly a desirable result, given the wasted costs of the first
    hearing and the delay in having the case determined on the merits. Yet
    sometimes, this rather drastic result is necessary to protect the judicial
    systems integrity.

[20]

As
    this court observed in
Gendron v. Doug C. Thompson Ltd. (Thompson Fuels)
,
    2019 ONCA 293, 34 C.P.C. (8th) 144, at para. 93, leave to appeal refused,
    [2019] S.C.C.A. No. 228, the insufficient reasons ground of appeal appears with
    such frequency in this court that it is fast becoming a boilerplate ground of
    appeal. The court cautioned that the ground of appeal was being asserted in
    cases where there was no reasonable basis for arguing that the reasons for
    decision of the court below were anything other than straightforward.  This is
    not such a case. Instead, this is a situation where the parties and the court are
    left to speculate on how the trial judge reached his conclusion on critical
    issues.

[21]

The
    trial judge spent much of his reasons summarizing the evidence of the witnesses
    who testified at trial. This approach to writing reasons is often problematic.
    There is nothing impermissible in writing reasons this way, and it is important
    to capture the evidence adduced at trial. However, it is worth emphasizing that
    a detailed factual recitation is not a substitute for a considered analysis of
    the issues. What frequently happens when reasons begin with a very detailed
    recitation of the evidence is that when it comes time to grapple with the
    issues in the case, the analysis is largely conclusory. This was what happened
    in the case at bar.

[22]

In
    his reasons, the trial judge concluded that
the abscess was located near the middle of the plaintiffs
    left buttock cheek. He then went on to comment on the expert evidence at paras.
    139-140:

I was favourably impressed with Dr. McMurrays evidence and
    prefer it to Dr. Fernandess. Meaning no disrespect to Dr. Fernandes who has
    impressive credentials, as noted above, I found Dr. McMurrays experience to be
    more closely related to the situation in this case. Also, I was impressed with
    the apparent practicality of his approach to scenarios such as the defendant
    was confronted with on June 29, 2012, as compared to what I saw to be the more
    academic approach of Dr. Fernandes. Furthermore, I find that Dr. McMurrays
    initial opinion was based on the facts as found, specifically about the
    location of the abscess when the defendant, Dr. Jefremova, saw it on June 29,
    2012.

Consequently, I am not persuaded that the defendant Dr.
    Jefremova failed to meet the standard of care on June 29, 2012 and would
    dismiss the claim against her.

[23]

As
    in most medical malpractice cases, the expert evidence was of significant
    importance. There were several areas where the experts disagreed. The trial
    judge was obliged to explain in some level of detail why he preferred the
    evidence of Dr. McMurray over Dr. Fernandes. Expressing a general preference
    based on a statement that he found Dr. McMurrays experience to be more
    closely related to the situation in this case does not suffice. Nor does a
    reference to Dr. McMurrays approach being more practical. The trial judge was
    obliged to weigh in on important issues, including, but not limited to:

·

Was the standard of care breached when Ms. Champoux was sent home
    without Dr. Jefremova knowing why her heart rate was elevated and her blood
    sugars uncontrolled?

·

Was Dr. Fernandes correct in his criticism of Dr. Jefremova when
    he said that she failed to undertake appropriate testing of Ms. Champoux?

·

Was Dr. Fernandes correct when he opined that the standard for
    all abscesses is immediate incision or drainage once they are diagnosed?

·

Was Dr. McMurray correct when he testified that there were two
    abscesses, one on the buttocks and an ischiorectal one that was discovered
    during surgery?

·

Why was Dr. McMurrays experience considered more applicable to
    the case at bar when he testified that he had never aspirated an abscess or seen
    it performed?

·

Was the standard of care breached by Dr. Jefremova in delaying
    treatment?

[24]

Given
    the failure to consider these and other key issues, the trial judges reasons
    are not amenable to appellate review. Understandably, Ms. Champoux complains
    that the trial judge failed to engage with the crux of the case before him and,
    accordingly, she is unable to understand why her claim was dismissed. As an
    appellate court, we are also left in the dark about how the trial judge dealt
    with these critical issues. For this reason, I would order a new trial.

(b)

Withdrawal of Admission

[25]

I
    would also order a new trial as a result of the trial judges treatment of the
    admission in the Response to Request to Admit. His analysis resulted in an
    unfair trial for Ms. Champoux.

[26]

Before
    considering the trial judges analysis, I would reject Dr. Jefremovas argument
    on appeal that the impugned admission in the Response to Request to Admit was
    not a formal admission because it was proffered in the context of a refusal.
    The purpose of request to admit procedures  to save time and costs by
    narrowing the facts in issue  would be undercut if litigants could deny a fact
    in a Request to Admit on the basis that an alternative set of facts is
    accurate, but then treat those proffered alternative facts as non-binding. That
    approach would obfuscate rather than clarify what facts are in issue.  Further,
    Dr. Jefremovas counsel brought a motion to withdraw the admission after seeking
    Ms. Champouxs consent to the withdrawal, indicating that all parties viewed
    the response as a formal admission.

[27]

Turning
    to the trial judges analysis, in the written reasons on the motion to withdraw
    the admission, the trial judge stated at para. 26:

I am not persuaded that it is appropriate at this point in the
    proceeding to rule on the interpretation to be given to the Response to Request
    to Admit. Rather, that evidence would be left for consideration after the trial
    submissions have been heard, if the admission still existed then. Consequently,
    it is necessary in the circumstances to consider the request to withdraw the
    admission. For this, I turn to the applicable test.

[28]

The
    trial judge then went on to apply the test from
Antipas v. Coroneos
(1988), 26 C.P.C. (2d) 63 (Ont. H.C.), as recently endorsed in
Liu v. The
    Personal Insurance Company
, 2019 ONCA 104, 89 C.C.L.I. (5th) 195, at para.
    13.  That test directs courts to first consider whether the admission is one
    purely of fact, law, or mixed fact and law (since questions of law can be more
    easily withdrawn than questions of fact), and then apply a three-part conjunctive
    test regarding when an admission could be withdrawn, being:

(a)

Does the

proposed amendment
    raise a triab
l
e issue in respect

to

the

truth

of

the

admission?;

(b)

Is there a
r
easonable explanation
for the w
it
hdrawal,

such

as
    inadvertence or wrong instructions?;

and,

(c)

Has the party w
i
shing to
    withdraw the admission established that the
wi
thdrawal
will not result in

any preju
d
i
ce that cannot be compensated

for in costs?

[29]

The
    trial judge found that the admission was one of pure fact.  His analysis of the
    triable issue factor was as follows, at para. 29:

On the second
    branch, this is a medical malpractice case. The result depends on the standard
    of care that applies in the circumstances. Insofar as an abscess is concerned,
    what the standard is depends on its location and its type. The interpretation
    of the Response to Request to Admit is integral to determining these. The
    defence submitted that the admission is not incorrect, but is being
    misinterpreted. As I stated above, the interpretation of the admission is to be
    left to follow trial submissions. Therefore, I find no triable issue with
    respect to the truth of the admission, as contrasted with its interpretation.

[30]

The
    trial judge noted that the test for a withdrawal of an admission was
    conjunctive. Therefore, he found that Dr. Jefremova had not met her onus for
    the withdrawal of an admission. He dismissed the motion for leave to withdraw
    the admission.

[31]

In his reasons for decision on the trial, the trial judge
    reviewed the evidence regarding the location of the abscess and concluded, at
    para. 125,
it is
    asking too much in seeking to have that imprecise expression [in the Response
    to  Request to Admit] accepted as proof on the balance of probabilities that
    the plaintiff presented to the ER with anything more serious than an abscess on
    her buttocks.

[32]

I
    note that nowhere in his reasons on the motion or reasons for judgment does the
    trial judge consider the document in exhibit 9 wherein the admissions made by
    Dr. Jefremova are listed. Among those admissions is the following: On June 29,
    2012, Penny Lee Champoux presented with a buttock abscess/swollen nodule in the
    general perianal area (response to fact 10).

[33]

The
    problem with the trial judges analysis is that he dismissed the motion to
    withdraw the admission on the basis that it was an admission of pure fact and
    that there was no triable issue with regard to its truth. However, in his
    analysis of the admissions interpretation, he proceeded to effectively conduct
    an analysis of the truth of the admission.  Thus, the reasons on the motion and
    the reasons on the trial were contradictory. In the first, he concluded that
    there was no triable issue regarding the truth of the admission and in the
    second, he undertook an analysis of whether the admission was true and found
    that it was not true.

[34]

A
    trial judge has the freedom to interpret what an admission means:
Allto
    Construction Services Ltd. v. Toronto and Region Conservation Authority
,
    2017 ONCA 488, at para. 11. But that interpretive exercise cannot morph into an
    analysis of the veracity of the admission. A formal admission is not like other
    pieces of evidence led at trial that a judge can weigh at their discretion. A
    formal admission is conclusive of the matter admitted. The court is bound to
    act on formal admissions before it, even if other evidence contradicts the
    admission:
Serra v. Serra
, 2009 ONCA 105, 93 O.R. (3d) 161, at para.
    106.

[35]

In
    the case at bar, the trial judge weighed the admission against the other
    evidence led at trial and proceeded to effectively permit the withdrawal of the
    admission on the basis that it was not accurate. He did so despite his earlier
    finding that there was no triable issue in respect of the truth of the
    admission and his dismissal of the motion to withdraw the admission. In so
    doing, he ignored the issue of non-compensable prejudice to Ms. Champoux, who
    clearly based her trial strategy on the fact that she had this admission. In my
    view, his reasons effectively bypassed the rigorous test for the withdrawal of
    an admission and resulted in an unfair trial for Ms. Champoux. This trial unfairness
    requires an order for a new trial.

IV.     Disposition

[36]

For
    the foregoing reasons, I would set aside the trial judge's judgment and order a
    new trial.

[37]

Regarding
    the costs of the first trial and the costs of the appeal, if no agreement can
    be reached, I would order that: Ms. Champoux serve and file her costs
    submissions, including a bill of costs, within 14 days of the issuance of these
    reasons, Dr. Jefremova serve and file her responding costs submissions,
    including a bill of costs, within 10 days of the receipt of Ms. Champoux's
    submissions, and any reply submissions be served and filed within 7 days of the
    receipt of the responding submissions.

Released: K.M.v.R. February 12, 2021

C.W.
    Hourigan J.A.

I agree. K.
    van Rensburg J.A.

I agree. David
    Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Crystallex International
    Corporation (Re),
2021 ONCA 87

DATE: 20210209

DOCKET: M51677

Rouleau, Benotto and Thorburn
    JJ.A.

In the Matter of the
Companies
    Creditors Arrangement Act
, R.S.C. 1985,
c. C-36, as amended

And In the Matter of a Plan of
    Compromise or Arrangement of Crystallex International Corporation

Robin Schwill, Natalie Renner and
    Maureen Littlejohn, for the moving party Crystallex International Corporation

Timothy Pinos, Shayne Kukulowicz, and
    Ryan Jacobs, for the moving party Tenor Special Situation I, LP

Alan H. Mark, Robert J. Chadwick, Peter
    Ruby, and Chris Armstrong, for the responding parties Computershare Trust
    Company of Canada in its Capacity as Trustee for the Holders of 9.375% Senior
    Notes of Crystallex International Corporation and the Ad Hoc Committee of
    Noteholders

Heard: in writing

Motion for leave to appeal from the order
    of Justice Glenn A. Hainey of the Superior Court of Justice, dated June 8, 2020
    and August 31, 2020.

REASONS
    FOR DECISION

[1]

Crystallex
    International Corporation (Crystallex) and DIP lender Tenor Special Situation
    I, LP (Tenor) seek leave to appeal the motion judges order
dismi
ssing, in
part, Crystallexs motion to seal
    certain information contained in the Monitor
s
Thirty-Third Report.
For the reasons that
    follow, we refuse leave.

Background

[2]

Crystallex
    has been under the protection of the Companies Creditors Arrangement Act
, R
.S.C. 1985, c. C-36 (CCAA)
,
since December 2011.
Since that time, Crystallexs sole business activity has
    been pursuing its claim agai
nst the Republic of
    Venezuela for having

expropriated its rights
to
the Las Cristinas
    gold mine. In 2016, the World Bank
s International
    Centre for the Settlement of Investment Disputes awarded Crystallex $1.202
    billion, and the company has been seeking to enforce th
e
award ever since.

[3]

In
    May 2020, Crystallex sought an extension of its initial order and requested
that certa
in information
in
the Monitors
    Thirty-Third Report, including certain financial information
, be sealed.

[4]

Computershare
    Trust Company of
Canada in its capacity as Trustee
    for the Holders of 9.375% Senior Notes of Crystallex and the Ad Hoc Committee
    of Noteh
olders

opposed the sealing order sought by Crystallex insofar as
    it related to the sealing of Crystallexs (i) cash balance
,
(ii) cash-flow
    statement
,
and (iii) cash-flow forecast.

[5]

In
    his endorsement dated June 8, 2020, Hainey J. refused to seal the contested
    financial information
. He noted that it was significant that the Monitor did not
    fully support Crystallexs request for a sealing o
rder.
He held that the
Sierra Club
test was no
t satisfied
:
Sierra Club of Canada v. Canada (Ministry of Finance)
, 2002 SCC 41, [2002] 2 S.CR. 522.
The affidavit evidence did

not provide detailed
    or compelling reasons about how this information, if disclosed, could be used
    to the detriment of Crystall
ex or any details
    whatsoever as to the feared consequences of its disclosure to the public. The
    evidence was

highly speculative and
    [did] not specify any incremental risk that Crystallex may suffer from the
    disclosure of this information over and above t
he
    risk it is already exposed to.

[6]

Following the hearing, the Monitor identified certain
    redactions that should be made to its report if the full sealing order
    requested by Cry
s
tallex w
ere
not granted.
Indicating that he thought the
    proposed redactions ma
de sense,
t
he

motion judge
permitted the parties
    to make further submissions with respect to the proposed redactions.
In addition,
Crystallex filed a
    supplementary affidavit
detailing
why
it was of the view that
disclosure of
key
financial information,
    including its cash balance, could harm its efforts
to
enforc
e
its award against
    Venezuela.

[7]

In his endorsement dated
    August 31, 2020,
Hainey
    J. agreed to the Monitors proposed redactions
. He continued to be of the view that the prop
osed redactions
made sense and
represented a fair and reasonable balance between the
    protection of Crystallexs important commercial interest and public disclosure
    in keeping with the open

court principle.

[8]

The result was that the
Companys
motion
was dism
issed in part. The motion
    judge
ordered that the Thirty-Third Report be redacted as proposed by the Company
,
except for references to Crystallexs cash balance and related information.

[9]

In
    seeking leave,
Crystallex and Tenor
submit that the motion judge mad
e a number of errors, including
erring
in interpreting and
    applying the
Sierra Club
test,
in
failing to apply s.
    10(3) of the CCAA, and
in
relying on the Monitors submissions as to whether the test
    for a
sealing
order had been met.
In their submission,
the motion judges
    order is inconsistent with prior sealing orders in this proceeding, as well as
    established practice in Ontario.
They strenuously
contend
that disclosure of
    Crystallexs cash balance could undermine
the companys
enf
orcement efforts.

The Test for Leave
    is Not Met

[10]

Leave
    to appeal is granted sparingly in
CCAA
proceedings and
    only where there are serious and arguable grounds that are of real and
    significant interest to the parties. In addressing whether leave should be g
ranted, the court will consider
:
(1)
whether
the proposed appeal
    is
prima facie
meritorious or frivolous;
    (2)
whether
the points on the proposed appeal are of significance to
    the practice; (3)
whether
the points on the proposed appeal are of significance t
o the action; and
(4)
whether the proposed
    appeal will unduly hinder the progress of the action
:

see, for e.g.,
Stelco Inc.

(Re)
(2005), 75 O.R.
    (3d) 5 (C.A.), at para. 24;
Timminco Ltd.
(Re)
, 2012 ONCA
    552, 2 C.B.R. (6th) 332, at para. 2;

Nortel Networks
Corp. (Re)
, 2016 ONCA 332,
36 C.B.R. (6th) 1,
at para. 34.

[11]

Having
    reviewed the extensive materials filed on this leave motion, we are not
    satisfied that the proposed appeal is
prima facie
meritorious
or that the case is
    of significance to the practice.
Crystallex and Tenor seek
to
challenge a
    discretionary order of the motion judge, who as the supervising judge is
    intimately familiar with this CCAA proceeding.
The motion judge applied the
    well-established
Sierra Club
test
in light of the
    evidence before
him.
In our view, he did
    not give improper
consideration
or
weight
to the Monitors
    views
. Nor do we see any other basis
on which to
interfere with the
    motion judges
order
.

[12]

In
    light of our view that the first
two prongs of the leave test are
    not satisfi
ed, we r
efuse
    leave.
Costs, to be shared equally by Crystallex and Tenor, are
    fixed at $1,000.

Paul
    Rouleau J.A.

M.L.
    Benotto J.A.

J.A.
    Thorburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Cvetkovic v. Cvetkovic-Gorovic, 2021 ONCA 193

DATE: 20210330

DOCKET: C67374

Fairburn A.C.J.O., van Rensburg and Huscroft
    JJ.A.

BETWEEN

Darko Cvetkovic

Applicant (Respondent)

and

Aleksandra Cvetkovic-Gorovic

Respondent (Appellant)

Mark DeGroot, for the appellant

Darko Cvetkovic, acting in person

Heard: March 22, 2021 by video conference

On appeal from the order of Justice Susan E. Healey of
    the Superior Court of Justice, dated August 1, 2019, with reasons at 2019 ONSC
    4246.

REASONS FOR DECISION

[1]

At the conclusion of oral submissions, we
    advised the parties that the appeal was dismissed with reasons to follow. These
    are our reasons.

Facts

[2]

The appellant appeals from a final order
    terminating her spousal support as of August 1, 2019. The order under appeal
    was the result of a motion to change the consent final order of Mullins J.,
    dated March 23, 2009 (the 2009 final order), which notably required the
    respondent to pay child support for the two children of the marriage and
    spousal support for the appellant. The 2009 final order fixed spousal support at
    $1,400 per month based on an annual imputed income of $105,000 for the
    respondent, who was and remains self-employed, and $30,000 for the appellant. The
    2009 final order provided that spousal support was to be reviewed four years from
    the date of the order, and that either party could make an application to the
    court
[
i
]
f the parties cannot agree on the amount
    and duration of spousal support to be paid to the
[appellant]
going forward. It also provided for a change of the amount and
    duration of spousal support if there was a material change in either partys circumstances,
    even if the change was foreseen or foreseeable.

[3]

The appellant brought a motion to change the
    2009 final order almost five years after the 2009 final order, seeking to
    change the quantum of spousal support and child support based on her assertion
    that the respondent had not fully disclosed his income and assets at the time
    of the 2009 final order. She also asserted that the respondents income may
    have increased since the date of the 2009 final order.

[4]

The respondent brought his own motion to change the
    2009 final order, seeking to terminate or reduce spousal support and child
    support. Among other things, the respondent asserted that the appellant was
    refusing to work at a full-time job despite having a rich and versatile
    working experience and 13+ years of post-secondary education, and he
    challenged the appellants level of income disclosure since 2006.

[5]

The order under appeal was made after a trial at
    which the parties were self-represented. The appellant appeals only the part of
    the order that terminated her spousal support effective August 1, 2019.

Grounds of Appeal

[6]

There are three distinct grounds of appeal. The
    appellant submits that the trial judge erred: (1) in treating the trial as a
    variation proceeding instead of a review; (2) in terminating spousal support
    based on the material changes found;  and (3) in admitting and relying on the May
    31, 2018 report of an expert who was jointly retained by the parties to provide
    an opinion as to the respondents income for support purposes for the years
    2014 to 2017 (the SLF Report).

[7]

We do not give effect to any of these grounds of
    appeal.

The Nature of the Proceeding

[8]

First, the appellant is correct that there is a
    difference between a review and a variation. A review permits an order to
    be revisited without a threshold determination of a material change in
    circumstances, while a variation includes a burden to establish changed
    circumstances, as required by s. 17(4.1) of the
Divorce Act
, R.S.C. 1985, c. 3 (2nd Supp.):
Leskun v. Leskun
, 2006 SCC 25,
[2006] 1 S.C.R. 920,
at paras. 35-37. That said, once the threshold to vary the existing
    order is met, both a review and a variation of spousal support consider the
    same objectives: those that are set out explicitly at ss. 15.2(6) and 17(7) of
    the
Divorce Act
.

[9]

The trial judge referred to the provisions of
    the 2009 final order that allow for a review of spousal support after four
    years and a change to the spousal support order if there is a material change in
    circumstances. Whether characterized as a review or a variation, we are
    satisfied that the trial judge considered all of the circumstances that were
    relevant to what she had to determine at the trial: whether, as the appellant
    asserted, the respondent had failed to make full disclosure of his financial
    circumstances at the time of the 2009 final order; whether the respondents
    income was higher than the income imputed in the 2009 final order; and whether,
    and if so, when, spousal support should terminate.

The Respondents Income and the Termination
    of Spousal Support

[10]

Second, the appellant asserted at trial that the
    respondents imputed income in the 2009 final order ought to have been higher
    because the respondent was earning undisclosed income from a specific numbered
    company that he owned at the time of the 2009 final order. The trial judge considered
    the evidence and concluded that, although the numbered company was incorporated
    prior to the 2009 final order, there was no evidence of undeclared income from
    this company. Nor did the trial judge find that the respondent underreported
    his income in the years following the 2009 final order. After considering the
    evidence of the respondents line 150 income and the SLF Report addressing the
    respondents income for support purposes for the years 2014 to 2017, and
    rejecting the appellants unsupported allegations that the respondent had
    unreported cash or other income, the trial judge concluded that there was no
    evidence that the respondent had undeclared income before 2009 or that he
    underreported his income after the 2009 final order.

[11]

In deciding to terminate the appellants spousal
    support effective August 1, 2019, the trial judge considered the evidence that
    the appellant had not worked since 2015 and the appellants explanation that
    she was unable to work for medical reasons. The trial judge concluded, after
    reviewing the evidence, that the appellant had not shown that she had taken the
    necessary steps to become economically self-sufficient, and that she had not
    provided convincing evidence of her inability to secure and maintain
    employment. In particular, the trial judge referred to the amount of historical
    evidence for the appellants income as scant.

[12]

We disagree with the appellants submission that
    the trial judge improperly restricted her from leading evidence pre-dating the
    2009 final order, including evidence relating to the factors the court would
    consider under ss. 15.2(4) and (6) of the
Divorce Act
.

The appellant was intent on testifying about conduct of the
    respondent that occurred many years earlier and on raising various allegations
    about his behaviour. It was in this context that the trial judge noted, at
    para. 81 of her reasons, that she had to redirect the appellant from talking
    about events that occurred prior to the 2009
[final]
order, or issues that were simply not relevant to the issues to be
    decided by the court.

[13]

This was a 16-year marriage where spousal
    support of $1,400 per month had been paid in excess of 10 years. According to
    the trial judge, the
Spousal Support Advisory Guidelines

suggested range for
    spousal support would have been $1,528 to $2,037 for a duration of 6.5 to 13
    years. The trial judge made a finding of fact that the appellant [had] not
    shown that she [had] taken the necessary steps to become economically
    self-sufficient, and [had] not provided convincing evidence of her inability to
    secure and maintain employment. The trial judge also found that the appellant
    had sufficient equity in her home to retire all of her outstanding debt. On
    these bases, and in the context of the
Divorce Act
s ss. 15.2(6) and 17(7) spousal support objectives, notably the
    promotion of economic self-sufficiency, the trial judge ordered that spousal
    support would terminate on the date of her order.

[14]

We see no error in the trial judges approach.
    She provided detailed and comprehensive reasons. Her conclusion was based on
    her assessment and weighing of the evidence, including her assessment of the
    credibility of the parties.

The Expert Report

[15]

Third, we consider the appellants argument that
    the trial judge ought not to have admitted the SLF Report when its author was
    not called to testify as an expert witness. The trial judge admitted the report
    after concluding that it was both necessary and reliable, meeting the
    requirements for the admission of hearsay evidence. We see no error in
    principle that would cause us to interfere with this admissibility ruling. In
    any event, we note that the appellant did not clearly object to the
    admissibility of the SLF Report from the expert who was jointly retained and,
    in fact, relied on aspects of the SLF Report to advance her own case, notably to
    establish permissible or impermissible business expenses. In these
    circumstances, the appellant cannot now object to the fact that the trial judge
    relied on the SLF Report for other purposes.

Disposition

[16]

For these reasons, the appeal is dismissed.

[17]

The appellant was capably represented by counsel
    who appeared on a
pro bono
basis. The
    respondent was self-represented. In all of the circumstances, we do not order
    costs on the appeal.

Fairburn A.C.J.O.

K. van Rensburg J.A.

Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Danesh v. Vahed, 2021 ONCA 189

DATE: 20210329

DOCKET: C68465

Lauwers, Trotter and Zarnett JJ.A.

BETWEEN

Mohmmad Danesh

Plaintiff
(Respondent)

and

Elahe Vahed and Remax
    Crossroads Realty Inc.

Defendants
(Appellant/Respondent)

and

Elahe Vahed

Plaintiff by Counterclaim
(Appellant)

and

Remax Crossroads Realty
    Inc., Mohmmad Danesh, and Michael Bury

Defendants to the Counterclaim
(Respondents)

Shahzad Siddiqui, for the appellant Elahe Vahed

Esmaeil Mehrabi, for the respondent Mohmmad Danesh

Amanda Gibson, for the respondent Remax Crossroads
    Realty Inc.

Michael Kestenberg, for the respondent Michael Bury

Heard: March 19, 2021 by videoconference

On appeal from the
    order of Justice Mario D. Faieta of the Superior Court of Justice, dated June
    5, 2020 with reasons reported at 2020 ONSC 3525.

REASONS FOR DECISION

I.

Introduction

[1]

The appellant, Elahe Vahed, was found by the motion judge to have breached
    an agreement to sell her condominium unit to the respondent, Mohammad Danesh. The
    motion judge ordered that the deposits Mr. Danesh had paid be returned to him, that
    Ms. Vahed pay damages to Mr. Danesh, and that Ms. Vaheds counterclaim against Mr.
    Danesh and the respondents, Michael Bury and Remax Crossroads Realty Inc. (Re/Max)
    (her lawyer and the realtor, respectively, on the transaction) be dismissed.

[2]

Ms. Vahed appeals each of the dispositions except the dismissal of the
    counterclaim against Re/Max; however, she seeks leave to appeal the costs award
    made against her in favour of Re/Max.

[3]

The dispositions by the motion judge were made on motions for summary
    judgment brought by Mr. Danesh, Mr. Bury, and Re/Max. Ms. Vahed submits that
    the motion judge erred in granting summary judgment because there were genuine
    issues requiring a trial, and that he erred in principle in making a cost award
    against her in favour of Re/Max. She seeks to support her argument, in part, with
    fresh evidence, which she requests that this court consider.

[4]

For the reasons that follow, we dismiss the motion to admit fresh
    evidence, deny leave to appeal costs and dismiss the appeal.

II.

Background

[5]

In May 2018, Ms. Vahed entered into an agreement of purchase and sale
    (the APS) to sell a condominium unit in Markham, Ontario to Mr. Danesh. Mr.
    Danesh paid a $20,000 deposit to be held by Re/Max. Closing was originally
    agreed to occur on July 28, 2018, but was later extended, by a signed agreement
    between the parties, to September 6, 2018 on payment of a further $20,000
    deposit by Mr. Danesh to Ms. Vahed.

[6]

On September 5, 2018, Ms. Vahed retained Mr. Bury to act for her on the
    sale. On that date, Mr. Daneshs lawyer told Mr. Bury that Mr. Danesh would not
    be able to close on September 6 due to a problem in obtaining financing. On
    September 6, Mr. Daneshs lawyer asked Mr. Bury for an extension of the closing
    date to September 25, 2018. Mr. Bury asked Ms. Vahed for instructions.

[7]

On September 6, by two emails, Ms. Vahed instructed Mr. Bury to agree to
    an extension to September 25, 2018, on two conditions. The first was that Mr.
    Danesh pay the carrying costsmortgage payments, maintenance fees and taxeson
    the property until September 25. The second was that if Mr. Danesh wont close
    by 25
th
September I need the undertakings from the lawyers that he
    acknowledge that he is going to [lose] $40,000 deposits to me automatically.

[8]

Mr. Burys evidence was that on September 6, he relayed Ms. Vaheds
    terms to Mr. Daneshs lawyer and obtained his agreement to the terms. Mr. Bury
    then signed and  hand-delivered a letter to Mr. Daneshs lawyer, which stated:

Further to the email exchange with your office today and telephone
    discussions, I am writing to confirm that Ms. Vahed has agreed to an extension
    of the closing in the above matter to September 25
th
, 2018 with
    conditions (i.e. payment by your client of the carrying costs (Mortgage
    $1338.16, Maintenance Fee $347.20, Taxes $173 until closing, forfeiture of
    deposit if the deal does not close) and you have agreed to these terms.

The carrying cost amounts in the letter were those provided
    by Ms. Vahed to Mr. Bury.

[9]

It does not appear that Mr. Bury provided a copy of this letter to Ms.
    Vahed. She emailed him on September 7, pointing out that the closing date had
    passed and she had received no reply. He advised her by email on September 8
    that he had been told by Mr. Daneshs lawyer that Mr. Danesh would be ready to
    close early next week and had agreed to carry any costs as discussed.

[10]

Mr. Bury gave evidence that he spoke to Ms. Vahed on September 11. She
    expressed doubt about whether the deal would go ahead. He told her that the
    purchaser had already agreed to her terms and that the closing had been
    extended to September 25. On the same date, Mr. Bury sent her a copy of an
    email from Mr. Daneshs lawyer confirming that Mr. Danesh was ready to close,
    asking for a statement of adjustments and closing package, and stating, I must
    bring your attention to this fact that [your] client agreed to extend the
    closing date to the 25
th
day of September, 2018.

[11]

Ms. Vahed responded that Mr. Bury had not told her anything about an
    extended closing until two days after the September 6 date, and pointed out
    that his September 8 email did not talk about a September 25 closing or confirm
    that there had been agreement to her condition that there be an undertaking
    that Mr. Danesh would lose the deposit if he did not close on September 25. On the
    same date, Ms. Vaheds listing agent emailed Mr. Bury asserting that the
    purchaser had defaulted in closing on September 6, that there was no agreement
    to extend on that date, and suggesting that Mr. Bury was helping the purchaser
    to bully Ms. Vahed.

[12]

After sending further unanswered emails to Ms. Vahed, Mr. Bury emailed her
    on September 14 stating that, as he was not hearing back from her, he assumed
    that his services were no longer required.

[13]

Ms. Vahed engaged another lawyer, Mr. Vakili, who corresponded with Mr.
    Daneshs lawyer. Ultimately, on September 25, 2018, Mr. Danesh, through his
    lawyer, advised that he was ready, willing, and able to close. On the same
    date, Ms. Vahed, through Mr. Vakili, advised that the APS had expired on
    September 6, and that no valid extension agreement had been made.

[14]

The deal did not close. Re/Max returned the first $20,000 deposit to Mr.
    Danesh. This litigation ensued. Mr. Danesh claimed that Ms. Vahed had breached
    the agreement by not closing on September 25, and that he was entitled to
    return of the deposits and damages. Ms. Vahed claimed that there was no extension
    beyond September 6, and that she was entitled to the deposits and damages. She
    also claimed against Mr. Bury for not following her instructions and against Re/Max
    for releasing the deposit to Mr. Danesh.

III.

The Motion Judges Decision

[15]

The motion judge was satisfied that the case was appropriate for summary
    judgment, as the facts could be efficiently and fairly determined on the basis
    of the affidavits, cross-examinations, and extensive documentary record
    before him.

[16]

The motion judges pivotal finding was that the letter dated September
    6, 2018 from Mr. Bury to Mr. Daneshs lawyer recorded the agreement they made
    and was signed and delivered by Mr. Bury on September 6. He rejected Ms. Vaheds
    argument that there was a genuine issue requiring a trial about whether the
    letter was a fabrication created sometime after September 6.

[17]

The motion judge therefore concluded that the closing date under the APS
    had been extended until September 25, when it was breached by Ms. Vahed refusing
    to close. Accordingly, Mr. Danesh was entitled to the return of the deposits he
    paid and to his out of pocket expenses concerning the aborted transaction. Ms.
    Vaheds counterclaim against Mr. Danesh for breach of the APS failed. Her
    counterclaim against Re/Max concerning its release to Mr. Danesh of the deposit
    it held similarly failed. Finally, her counterclaim against Mr. Bury failed.
    The motion judge was satisfied that Mr. Bury acted in accordance with her
    instructions in extending the closing to September 25, there was no evidence of
    any damage caused by any wrongdoing by Mr. Bury, and although punitive damages
    had been claimed, that was not a stand alone cause of action.

[18]

The motion judge awarded costs to each of Mr. Danesh, Mr. Bury, and Re/Max.

IV.

The Fresh Evidence Motion

[19]

Ms. Vahed seeks to introduce fresh evidence on appeal. She argues that
    it shows that Mr. Bury was provided, by Re/Max, with documents concerning the
    transaction before September 5, 2018 and that this would be relevant to his
    credibility.

[20]

The fresh evidence is not admissible. It could have been discovered with
    reasonable diligence before the hearing below. As well, in our view, it is not
    germane to the central issues and therefore could not have affected the result.

V.

The Appeal

[21]

Ms. Vahed argues that the motion judge erred in deciding the claims
    between her and Mr. Danesh, and between her and Mr. Bury, by summary judgment.
    She argues that there are genuine issues requiring a trial.

[22]

We disagree. As between Ms. Vahed and Mr. Danesh, whether there was any
    genuine issue requiring a trial turned on the September 6 letter confirming an
    agreement to extend the closing from September 6, when Mr. Danesh was not ready
    to close, to September 25, when Mr. Danesh was ready to close and Ms. Vahed was
    not. Ms. Vaheds position was that the September 6 letter was an after the fact
    fabrication, and that therefore there was nothing in writing agreeing to an
    extension of the closing date made on September 6.

[23]

The motion judge was entitled to find that there was no genuine issue requiring
    a trial about whether the letter was a fabrication, rather than a letter
    written and signed as it purported to be that was delivered to Mr. Daneshs
    lawyer on September 6. Although Ms. Vahed says there were red flags
    concerning the letter  primarily the lack of its timely provision to Ms. Vahed
    and the absence of specific reference to it in certain subsequent emails, the
    motion judges reasons show that he was alive to the relevant considerations.
    He gave cogent reasons for the conclusion he reached:

I find that Vaheds allegation that the Extension Letter was
    fabricated does not raise a triable issue. First, it would require this Court
    to find that both Bury and McKee, being officers of the Court, had lied about
    the existence of the Extension Letter and its delivery. Second, it ignores
    Vaheds own evidence that she was told by Bury on September 8, 2018 that Danesh
    had agreed to carry the additional costs of the Condominium. Third, it ignores
    McKees letter to Bury dated September 11, 2018 where he acknowledges that
    Vahed had agreed to extend the closing date. Fourth, it ignores Burys email to
    Vahed on September 11, 2018 where he told her that Danesh had agreed to the
    extension with penalties.

[24]

The decision of a motion judge about whether there is a genuine issue
    for trial is entitled to deference on appeal:
Hryniak v. Mauldin
, 2014
    SCC 7, [2014] 1 S.C.R. 87 at para. 81. We are not persuaded that the motion
    judge committed a palpable and overriding error that would justify appellate
    intervention.

[25]

Ms. Vahed also argues that there is a genuine issue requiring a trial
    about whether Mr. Bury breached his duties by not following Ms. Vaheds
    instructions in recording the terms on which the closing would be extended in
    his September 6 letter. She says there is a difference between a lawyers
    undertaking regarding forfeiture of deposits, which she instructed him to
    obtain, and the language of the September 6 letter. We disagree.

[26]

First, the issue is irrelevant as far as Mr. Danesh is concerned, as
    there is no suggestion that he or his lawyer were aware of any limitation on
    Mr. Burys authority to agree to an extension on the terms set forth in the
    September 6 letter.

[27]

Second, as it pertains to the claim against Mr. Bury, we see no
    material, operative difference between what Mr. Bury was told to obtain  undertakings
    from the lawyers that he acknowledge that he is going to [lose] $40,000
    deposits to me automatically

and the language of
    the September 6 letter forfeiture of deposit if the deal does not close and
    you have agreed to these terms. Accordingly, there is no error in the motion
    judges finding that in obtaining the agreement recorded in the September 6
    letter, Bury acted in accordance with Vaheds instructions.

[28]

However, even if there were a difference, there was no evidence that it
    caused any loss to Ms. Vahed. A difference about who was responsible to ensure Ms.
    Vahed received the deposits would matter only if she became entitled to the them
    because Mr. Danesh breached the APS and failed to close on September 25.
.
However, it was Ms. Vahed who failed to close  thus she never obtained an
    entitlement to the deposits.

[29]

Ms. Vahed does not appeal the dismissal of her claim against Re/Max. But
    she argues that Re/Max should not have been awarded costs against her because
    Re/Max prematurely released the deposit to Mr. Danesh without a court order or
    a mutual release. We see no merit in this argument.

[30]

Ms. Vahed advanced a substantial damages claim against Re/Max for its
    alleged wrongful release of the deposit, which the motion judge dismissed. Ms.
    Vahed was never prejudiced by the premature release of the deposit. The motion
    judge found that Re/Max had replaced the funds it prematurely released to Mr.
    Danesh  if Ms. Vahed had been found to be entitled to the deposit, she would
    have been paid. In any event, since she was not entitled to it, she suffered no
    loss due to Re/Maxs conduct.

[31]

In these circumstances, we see no error in principle in the motion judge
    having made a costs award in favour of Re/Max in light of its successful
    defence of the claim against it.

VI.

Conclusion

[32]

The motion to introduce fresh evidence is dismissed. Leave to appeal the
    costs award in favour of Re/Max is denied. The appeal is dismissed.

[33]

The respondents are entitled to costs payable by Ms. Vahed as follows:
    to Mr. Danesh, $7,500; to Mr. Bury, $7,500; and to Re/Max, $5,000. These
    amounts are inclusive of disbursements and applicable taxes.

P. Lauwers J.A.

Gary Trotter J.A.

B. Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Davidoff v. Paderewski Society
    Home (Niagara), 2021 ONCA 194

DATE: 20210326

DOCKET: C68308

Fairburn A.C.J.O., van Rensburg
    and Huscroft JJ.A.

BETWEEN

Alexander
    Davidoff

Plaintiff

(Responding Party/Appellant)

and

Paderewski Society Home
    (Niagara), Rachel (nee: Slingerland) Goerz (LSUC #63876V) and Niagara Regional
    Housing (NRH)

Defendants

(Moving Parties/Respondents)

AND BETWEEN

Alexandra
    Davidoff

Plaintiff

(Responding Party/Appellant)

and

Paderewski Society Home
    (Niagara) and Rachel (nee: Slingerland) Goerz (LSUC #63876V)

Defendants

(Moving Parties/Respondents)

Alexander Davidoff, acting in person

Alexandra Davidoff, acting in person

Vanda A. Santini and Kristen Bailey,
    for the respondent Paderewski Society Home (Niagara)

Michael R. Kestenberg, for the
    respondent Rachel Goerz

Scott A. Crocco, for the respondent Niagara
    Regional Housing

Heard and released orally: March 25, 2021 by
    video conference

On
    appeal from the judgments of Justice Paul R. Sweeny of the Superior Court of
    Justice, dated February 25, 2020, with reasons reported at 2020 ONSC 1162 and
    2020 ONSC 1171.

REASONS FOR DECISION

[1]

The appellants raise one ground of appeal. They
    are of the view that the dismissal of their claims involves a reasonable
    apprehension of bias. Although they correctly articulate the legal test for a
    reasonable apprehension of bias, in our view, there is no basis to support this
    very serious legal claim. Moreover, there is no basis to support the suggestion
    made by the appellants that any counsel on this matter behaved inappropriately.

[2]

The appeal is dismissed.

[3]

Costs are payable by the appellants, jointly and
    severally, in the following amounts:

(a) $5,000 to the respondent Rachel Goerz;

(b) $2,500 to the respondent Niagara Regional Housing; and

(c) $3,000 to the respondent Paderewski Society Home.

Fairburn
    A.C.J.O.

K.
    van Rensburg J.A.

Grant
    Huscroft J.A.