COURT OF APPEAL FOR ONTARIO

CITATION: Currie v. Ontario (Attorney General), 2017 ONCA 266

DATE: 20170331

DOCKET: C62188

Feldman, van Rensburg and Pardu JJ.A.

BETWEEN

Tanner Currie

Appellant/Applicant

and

The
    Attorney General of Ontario, Her Majesty the Queen, and

Christopher Labreche

Respondents

Trent Falldien, for the appellant

Philip Perlmutter and Brent Kettles, for the respondents
    The Attorney General of Ontario and Her Majesty the Queen

Scott K. Fenton, for the respondent Christopher Labreche

Heard: March 13, 2017

On appeal from the order of Justice R. Dan Cornell of the
    Superior Court of Justice, dated April 29, 2016, with reasons reported at 2016
    ONSC 3884.

ENDORSEMENT

[1]

The appellant appeals the dismissal of an application challenging the
    Crowns assumption of a private prosecution and subsequent withdrawal of
    charges.

HISTORY OF THE PROCEEDINGS

[2]

The appellant commenced a private prosecution against the respondent, Constable
    Labreche, claiming he was assaulted while in police custody. Following a pre-enquete
    hearing during which Crown counsel appeared and cross-examined the appellant
    and a witness, a justice of the peace found that a
prima facie
case
    had been made out and issued process compelling Labreche to attend to answer the
    charge of assault. The Crown then intervened to assume carriage of the
    prosecution.

[3]

On March 10, 2015, the appellant brought an application in the Superior
    Court under Rule 14 of the
Rules of Civil Procedure
, R.R.O. 1990, O.
    Reg. 194 (referred to by the parties as the Recusal Application) to challenge
    the actions of the Crown in taking over the private prosecution.
[1]
He claimed breach of his rights under s. 7 of the
Canadian
Charter of
    Rights and Freedoms
and alleged bias. He asserted that the Crowns
    decision to intervene in the prosecution unnecessarily interfered with his wish
    to prosecute the matter privately and was therefore not compliant with s. 11(d)
    of the
Crown Attorneys Act
, R.S.O. 1990, c. C.49 (which provides for
    the circumstances in which Crown Attorneys are to assume the conduct of a
    private prosecution). The appellant claimed relief which included an order
    prohibiting the Crown from prosecuting the matter and an order that the charge
    be prosecuted by the appellants counsel of choice.

[4]

The Recusal Application was supported by the appellants affidavit and
    an affidavit of a law clerk in his lawyers office attaching all correspondence
    between counsel regarding the matter, except for without prejudice
    communications, as well as media posts and releases. The appellant was
    cross-examined on his affidavit.

[5]

The Recusal Application was heard in June 2015 and dismissed on August
    12, 2015 for reasons reported at 2015 ONSC 4448. The application judge, relying
    on
Re Bradley et al. and The Queen
(1976)
, 9 O.R. (2d) 161 (C.A.) and
Ahmadoun v. Ontario
    (Attorney General)
, 2012 ONSC 955, [2012] O.J. No. 639, held that the
    Crown had lawful authority to intervene in the private prosecution and that the
    appellant had failed to demonstrate an abuse of process or bias.

[6]

The Crown, on notice to the appellant and in an attendance in the
    provincial court, withdrew the assault charge on October 6, 2015 on the basis
    that there was no reasonable prospect of conviction. The appellant then moved
    for an extension of time for leave to appeal the order dismissing the Recusal
    Application. The motion was dismissed by Epstein J.A. in chambers on November
    24, 2015.

[7]

On November 5, 2015, the appellant brought a second application in the
    Superior Court (referred to by the parties as the Constitutional Application),
    this time pursuant to the
Criminal Proceedings Rules
. In the
    Constitutional Application the appellant asserted that his rights under s. 7 of
    the
Charter
were breached and he repeated the allegations of bias
    asserted in the Recusal Application.

He sought a declaration of
    unconstitutionality of s. 507.1 of the
Criminal Code
(which provides
    for the referral of private prosecutions to the provincial court after a
    hearing, and for notice to and the participation of the Attorney General in the
    hearing), and s. 11(d) of the
Crown Attorneys Act
. The appellant also
    sought an order setting aside the Attorney Generals intervention in and
    withdrawal of his private prosecution against the officer.

[8]

The application judge, Cornell J., heard and dismissed the Constitutional
    Application on April 29, 2016. He dismissed the application in its entirety on
    the basis of issue estoppel. After referring to the leading authority
    respecting the doctrines of cause of action and issue estoppel,
Danyluk v.
    Ainsworth Technologies Inc.
, 2001 SCC 44, [2001] 2 S.C.R. 460, the application
    judge concluded that the three preconditions to the application of issue
    estoppel had been satisfied: The parties to the proceedings were the same; the
    earlier decision in the Recusal Application was final; and the material that
    was filed in the two applications was virtually identical and the same issues
    were raised. He awarded costs in favour of the Crown in the sum of $2,600 and
    in favour of the officer in the sum of $2,000.

ISSUES AND ARGUMENT

[9]

The appellant raises three arguments on appeal.

[10]

First, the appellant says that the application judge erred in concluding
    that the Constitutional Application was barred by issue estoppel. He contends
    that the Recusal Application challenged the Crowns
intervention
in
    the private prosecution while the Constitutional Application challenges the
    Crowns
withdrawal
of the charge. He asserts that the new issues he
    raises in the Constitutional Application must be considered in the context of
    the entire circumstances, including the allegations of bias he previously
    brought forward. He argues that the Constitutional Application raises new
    arguments, and that the constitutionality of s. 507.1 of the
Criminal Code
and s. 11(d) of the
Crown Attorneys Act
was not at issue in the
    Recusal Application. The appellant also asserts that the court ought to have
    exercised its discretion to not apply issue estoppel and should have determined
    the Constitutional Application on its merits.

[11]

Second, the appellant says that his application has merit and ought to
    be determined by this court in his favour. He says that the conduct of the
    Crown in this case demonstrates bias and that the laws permitting the Crown to
    assume carriage of a private prosecution are constitutionally invalid. In oral
    argument, the appellants counsel focussed on what was depicted in a video
    recording of the alleged assault, and asserted that there was only one possible
    interpretation of the events that occurred, that the evidence disclosed a
    triable issue of excessive force that ought to have gone to trial, and that
    Crown counsel therefore misled the court in her detailed explanation of why
    there was no reasonable prospect of conviction when she withdrew the charges
    against the officer.

[12]

Third, the appellant challenges the award of costs made against him in
    favour of the Crown and the officer.

DISPOSITION

[13]

We do not give effect to any of these arguments.

[14]

The appeal can be disposed of on the issue estoppel ground. We are
    satisfied that the application judge did not err in applying issue estoppel.

[15]

It is clear from a review of the two applications and the materials
    relied on by the appellant for each, that the Constitutional Application raises
    exactly the same issues as were dealt with in the Recusal Application. The
    essence of the appellants complaint in both applications is the same  he
    questions the Crowns decision to take over the private prosecution of the
    respondent Labreche. In both applications he alleges bias on the part of the
    Crown and breach of his s. 7
Charter
rights. He also relies on much of
    the same evidence in both applications  his affidavits set out the same basic
    chronology of what occurred and the same conduct alleged to constitute bias by
    the Crown.

[16]

The fact that there was a new development following the Recusal
    Application  the withdrawal of the charges  does not change the character of
    the proceedings. The appellant seeks to challenge the Crowns ability to assume
    carriage of the prosecution, and his exclusion from it. In the Constitutional
    Application he seeks once again an order that he be able to continue the
    private prosecution in his own name, which was denied with the dismissal of the
    Recusal Application. Advancing new legal arguments and asserting additional
    claims for relief will not avoid the application of issue estoppel:
Las
    Vegas Strip Ltd. v. Toronto (City)
(1996), 30 O.R. (3d) 286
(Gen.
    Div.), at para. 25, aff'd
(1997), 32 O.R. (3d) 651
(C.A.);
Britannia Airways Ltd. v. Royal Bank
, [2005] O.J. No. 2 (S.C.), at
    para. 14;
Naken v. General Motors of Canada Ltd.
, [1983] 1 S.C.R. 72,
    at p. 101;
Eimskip, USA, Icelandic Steamship Inc. v. Nordica Foods A/S
,
    2015 NLCA 17, 365 Nfld. & P.E.I.R. 291, at paras. 59-60;
Danyluk
,
    at paras. 24, 54.

[17]

Finally, the appellant submits that the court ought to have exercised
    its discretion to refuse to apply issue estoppel.
Danyluk
recognizes such
    discretion where the application of the doctrine would result in an injustice
    (at paras. 63-64). The appellant has had his day in court on the issues he
    seeks to raise again in the Constitutional Application and there is simply no
    basis for refusing to apply issue estoppel in this case.

[18]

Having decided that the appeal should be dismissed on the issue estoppel
    ground, it is unnecessary to address the appellants second ground of appeal
    that his Constitutional Application ought to have succeeded on the merits. We
    note however, that we have serious concerns about the appellants standing, as
    a complainant, to challenge the exercise of prosecutorial discretion. The
    question of standing ought to be addressed before any such application is
    considered on the merits. We also observe that, although framed as a
    constitutional challenge to the legislative regime for private prosecutions,
    the appellant does not put forward evidence or argument in support of a
    constitutional challenge. Rather, his focus is on the merits of the Crowns
    assessment of the available evidence leading to the decision to withdraw the
    charge, with which he strongly disagrees. And finally, the triable issue
    standard the appellant advances is entirely misplaced; without suggesting that
    the exercise of discretion was in fact reviewable at the behest of the
    appellant, the question for the Crown was not whether there was a triable issue
    respecting theofficers guilt, but whether there was a reasonable prospect of conviction.

COSTS APPEAL

[19]

There is no merit to the appeal respecting costs. The appellant included
    the officer as a respondent to the Constitutional Application. Costs were
    awarded in favour of both successful respondents in the exercise of the
    inherent jurisdiction of the Superior Court to control its own process:
Foessl
    v. Attorney General for Ontario
, 2016 ONCA 304. The application judge found
    that the application was improper and exercised his discretion to award costs. The
    appellant was attempting to raise for a second time, issues that had already
    been determined. The Constitutional Application, although styled as such,
    advanced no arguable constitutional issue. There is no basis to interfere with the
    application judges decision respecting costs.

RESULT

[20]

The appeal is therefore dismissed. The respondent Labreche sought his
    costs on appeal. Failing an agreement on costs, the appellant and this
    respondent may provide written submissions to the court, limited to three
    pages, not including any bill of costs, as follows: the respondent Labreche
    within 15 days of the date of this endorsement, with responding submissions by
    the appellant within 15 days thereafter, and no reply submissions.

K. Feldman J.A.

K. van Rensburg J.A.

G. Pardu J.A.

[1]

Although the
    applicant brought the application under r. 14, early in the argument, all
    counsel agreed to the application being converted to an application for prerogative
    relief in the nature of
certiorari
,
mandamus
and/or prohibition
    pursuant to r. 43.01 of the
Criminal Proceedings Rules for the Superior
    Court of Justice.


WARNING

THIS IS AN APPEAL UNDER THE

CHILD AND FAMILY SERVICES ACT

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

45(7)  The court may make an order,

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

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

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

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

45(8)  No person shall publish or make public
    information that has the effect of identifying a child who is a witness at or a
    participant in a hearing or the subject of a proceeding, or the childs parent
  or foster parent or a member of the childs family.

45(9) The court may make an order prohibiting
    the publication of information that has the effect of identifying a person
    charged with an offence under this Part.

COURT OF APPEAL FOR ONTARIO

CITATION: Family and
    Children's Services of the Waterloo Region

v. J.V., 2017 ONCA 194

DATE: 20170307

DOCKET: C62554

MacFarland, van Rensburg and Huscroft JJ.A.

BETWEEN

The Childrens Aid Society of the Regional
    Municipality of Waterloo

Applicant (Respondent
    on Appeal)

and

J.V. and M.V.

(Appellants on Appeal)

and

C.V.

Respondent (Respondent
    on Appeal)

and

J.S.

Respondent (Respondent
    on Appeal)

Brigitte Gratl, for the appellants, J.V. and M.V.

Jeff W. Boich, for the respondent, the Childrens Aid
    Society of the Regional Municipality of Waterloo

Heard: February 15, 2017

On appeal from the order of Justice Robert D. Reilly of
    the Superior Court of Justice, dated February 12, 2016.

ENDORSEMENT

[1]

This is an appeal by J.V. and M.V. from the order of Reilly J.
    dismissing an appeal by C.V. and J.V. and M.V. from the judgment of Neill J.
    declaring the child, A.M.D.V. be made a Crown ward, and placed in the care of
    the Childrens Aid Society of the Regional Municipality of Waterloo, (the
    Society) without access.

[2]

A.M.D.V. (the child) was born on March 2, 2013 and she is now four
    years of age. Her biological parents are C.V. and J.S., neither of whom
    participated in this appeal.

[3]

The child was apprehended at birth by the Society and placed in a
    temporary foster home. At the end of November 2013, the child was placed in a
    foster home with a family who have indicated a desire to adopt her. The child
    has remained in this home continuously since November 2013 with her foster
    parents and their son.

[4]

After the child was apprehended, her biological parents and her maternal
    grandparents exercised rights of access and each saw the child for about two
    hours per week until February 2015. At that time the judgment of Neill J. was
    released and access ended. There was one further visit in March 2015, which has
    been described as a goodbye visit. Save for a chance encounter at a local
    Walmart store between the grandparents and the foster parents, the appellants
    have not seen the child since March 2015. The appellants motions for interim access
    pending appeal have been dismissed.

A.

Fresh evidence

[5]

Both the appellants and the respondent seek to file fresh evidence on
    this appeal.

[6]

The appellants have filed a voluminous motion record which they seek to
    have admitted as fresh evidence. There are affidavits from each of the
    appellants as well as the biological mother, C.V., who is not a party to this
    appeal, also filed in response to the Societys fresh evidence motion.

[7]

The appellants proposed fresh evidence is described in the notice of
    motion as follows:

a.

Information with
    respect to deficiencies in the SAFE assessment home study process that led to
    the refusal of the appellants as adoptive parents; the information came to
    light only in the context of a hearing before the Child and Family Services
    Review Board and the appellants subsequent research into the SAFE assessment
    procedure.

b.

The evidence
    relates to both the appellants and the Plan of Care now submitted for
    consideration by the appellant, J.V.s, sister G.R. and her husband G.C.

[8]

The appellants before this court were not parties when this matter
    proceeded before Neill J. They were advised by the Society early on in the
    process to seek independent legal advice and did so. Nevertheless, not until
    the appeal to the Superior Court of Justice did they seek to be added as
    parties. The record is replete with references to the Societys early efforts
    to have the appellants submit a permanent plan of care, but they resisted. Ms.
    Lennon, the Society worker responsible for the completion of the SAFE protocol,
    explained fully the Societys concerns about the appellants plan of care and
    the difficulties in relation to the involvement of C.V. with them and the
    child. As the trial judge noted in paragraph 54 of her reasons:

Ms. Lennon did not complete the entire SAFE assessment as
    concerns were raised regarding the grandparents permanency plan early on in
    the assessment that the Society believed could not be mitigated and completing
    the entire assessment would not have changed the outcome. As the assessment was
    terminated early and the grandparents did not complete the required training,
    by Ministry standards they could not be approved as adoptive parents.

[9]

In September 2013, the appellants were given a letter explaining why the
    Society would not support a placement with them.

[10]

C.V., the biological mother and the appellants adopted daughter, has
    Alcohol Related Neurodevelopmental Disorder (ARND), a form of permanent brain
    damage due to prenatal exposure to alcohol which, through no fault of her own,
    makes her incapable of parenting her child.

[11]

The appellants initially resisted putting in a plan of their own. They
    wanted C.V. to have custody of the child and they would supervise.

[12]

The trial judge succinctly, set out the situation at the time of the
    hearing at paragraph 5 of her reasons as follows:

On March 5, 2013, the grandparents put forth a plan for the
    care of A.V. whereby the mother would continue to reside in their house and
    essentially the mother would be supervised at all times with the child either
    by the grandparents or other friends/family members. The grandparents then
    amended their plan for A.V. on June 25, 2013 requesting a custody order
    pursuant to s. 57.1 of the
Child and Family Services Act
(the Act)
    but stated they were also willing to adopt A.V.

[13]

The Societys position was also set out at paragraph 8 of those reasons:

The Societys position is that it is not in A.V.s best
    interest to be placed in the care of her grandparents due to numerous concerns,
    including the conflict between the mother and grandparents, concerns that their
    plan was not permanent as there was a risk that they would place A.V. back with
    her mother at some point in the future, the grandfathers lack of motivation to
    put forth a plan for A.V., the grandparents lack of support for their plan,
    particularly from their three adult children and concerns relating to their age
    and the grandfathers health. Therefore, the Society is seeking an order for crown
    wardship without access, with a plan for A.V. to be adopted by her current
    foster parents with whom she has been residing since November 29, 2013.

[14]

It is fair to say that the appellants plans have been evolving over time.
    There is no doubt, however, that before the hearing in 2015, they were aware of
    the Societys concerns, and why the SAFE protocol had not been completed. They had
    received legal advice but did not seek to become parties to the hearing before
    Neill J. Only after her decision did they seek to become parties to the appeal
    and retain counsel.

[15]

The issue with respect to the appellants suitability as permanent
    caregivers for the child was front and centre at the hearing before Neill J.
    Any and all issues in relation to the SAFE protocol could and should have been
    raised at that time and some were. We do not accept the appellants contention
    that they only became aware of the deficiencies in the SAFE home study at the
    hearing before the Child and Family Services Review Board.

[16]

Ms. Lennons evidence before Neill J. belies that suggestion. Any such
    proposed evidence ought to have been presented at the hearing before Neill J.
    and it is simply too late to raise additional matters in relation to that
    evidence now  at the hearing of the second appeal from the determination of
    Neill J. We do not therefore admit that evidence on this appeal.

[17]

Similarly, the appellants now submit a further plan of care for the
    child in response to the trial judgment and seek to cure the deficiencies the
    trial court found with their plan of care over the course of the nine day
    hearing in May and September of 2014.

[18]

While we do not doubt that the appellants mean well, it is simply not in
    this childs best interests to have this matter continue as the appellants
    refine and change their plans. A.M.D.V. was apprehended at birth and she just
    celebrated her fourth birthday. She is with a family who loves her and wants to
    adopt her and she has been with them since she was ten months old. She knows no
    other home. She is entitled to permanence in her life.

[19]

The new plan of care proposed in the fresh evidence includes the
    involvement of two persons, whom the child has never met. However,
    well-intentioned, it is simply too late in the process to put forward an
    alternate plan of care at this late stage.

[20]

For these reasons, we would not admit the fresh evidence proposed by the
    appellants. We turn to the grounds of appeal raised.

B.

sufficiency of reasons

[21]

While the reasons of the appeal judge are brief, read as a whole, as we
    are required to do, it seems that what he has done, is to adopt the trial
    judges reasons as his own. In such circumstances, we are put in the position
    of in effect sitting on appeal from the decision of Neill J. This remedy has
    been adopted by this court on previous occasions: see
R. v. Minuskin
,
    [2003], O.J. No. 523 (C.A.).

[22]

The parties argued the appeal on this basis and the interests of justice
    here require that the appeal proceed on this basis rather than sending it back
    to the intermediate appellate court for a further hearing.

C.

capacity

[23]

The appellants argue that the hearing before Neill J. resulted in a
    miscarriage of justice because C.V., who along with the childs biological
    father were the only parties to that proceeding, was in effect incompetent and
    ought to have been represented by a litigation guardian. It was also suggested
    that she may have lacked capacity to consent in the course of the child
    protection proceedings. In this respect, counsel relies on a report of Dr.
    Louise Scott dated March 23, 2011. Dr. Scott is a pediatric neuropsychologist,
    who completed a neuropsychological assessment as per the Canadian FASD
    Diagnostic Guidelines as well as via current Western Canadian Best Practices
    on C.V. when she was 15 years of age.

[24]

At the fourth page, under the heading Emotional Development, the
    report reads:

Taken together these factors, especially within the context of
    the results of all parts of this assessment, support that C.V. requires access
    to an external brain at all times and in all settings to ensure her safety.
    Further, she is unable to appreciate the consequences of any action (her own
    and those of others) and to appreciate the consequences of her
    decisions/actions.

Should she ever encounter the Criminal Justice System, all must
    be aware of the diagnosis, as well as that C.V. therefore is unable to
    appropriately instruct counsel so as to participate in her own defence.

[25]

Dr. Scott was not called as a witness at trial. Her report was filed
    with the court.

[26]

We note firstly, that Dr. Scott did not address competence nor was she
    asked to do so.

[27]

Secondly, the report speaks to an inability to appropriately instruct
    counsel, not an inability to instruct counsel.

[28]

Thirdly, C.V. at the time of trial was 19 years of age and was
    represented at trial by experienced counsel. No issue was raised at that time
    about her competence or capacity to instruct counsel and the trial proceeded
    over nine days in May and September of 2014. No issue was raised about C.V.s
    capacity until the hearing of the appeal before this court. Capacity is
    presumed until the presumption is rebutted and on this record all of the
    evidence favours the conclusion that C.V. had capacity at the time of trial.
    She was capable of agreeing that her child was in need of protection. Indeed it
    has been her position throughout that she wants the child placed with the
    appellants and wants to have access to her.

[29]

It is to be remembered that neither C.V. nor the appellants put forth a
    plan for the child prior to her birth. As late as the day before she was born,
    the appellant, J.V., was still questioning the Society worker, Cynthia Flynn, as
    to why C.V. could not just take anger management courses to enable her to
    parent. The child was born the next day, March 2, 2013, and without a plan in
    place, the Society had no choice but to apprehend her and place her in their
    care.

[30]

There is no basis to challenge the validity of the proceedings for lack
    of capacity on C.V.s part, particularly at this late stage. We are satisfied
    on the overwhelming preponderance of evidence before the trial judge that the
    proceedings were regularly constituted and on this ground there is no basis to
    order a new trial.

D.

constitutional issues

[31]

The constitutional issues are raised for the first time on appeal. None
    were raised before the trial judge.

[32]

The appeal judge at paragraph 8 of his reasons dealt with the
    constitutional issues raises as follows:

[8] I have also carefully considered the two Notices of
    Constitutional Question filed by C.V. (dated December 15, 2015) and by M.V. and
    J.V. (dated August 12, 2015). To summarize their respective positions, C.V.,
    M.V. and J.V. raise what they claim are constitutional issues involving
    essentially (though for different reasons) violations of their rights
    guaranteed by section 15 of
The Charter of Rights and Freedoms
. With
    great respect to C.V., J.V. and M.V., I conclude there is absolutely no
    foundation whatsoever to the concerns they express. There was no violation of
    their constitutional rights based on C.V.s status as adoptee or a person
    suffering from a disability, as a result of the age of the maternal
    grandparents or for any other reason. Any relief sought pursuant to the
    constitutional questions raised is denied.

[33]

In addition to endorsing the appeal judges finding, we note that no
    constitutional issue or issues were raised in the trial court and there is no
    record created there in reference to these issues which were raised for the
    first time on appeal. It is rare that an appellate court will entertain such
    issues when they are raised there for the first time.

[34]

We note in any event that the record below contains no evidence that
    would support any allegation that C.V. or the appellants suffered
    discriminatory treatment at the hands of the Society or anyone else.

[35]

We reject this ground of appeal.

E.

outdated report of dr. scott

[36]

While relying on Dr. Scotts report to support their argument that C.V.
    lacked capacity at the trial and ought to have been represented there by a
    litigation guardian, the appellants complain that the report is outdated and
    unreliable in relation to the diagnosis for C.V. They fault the Society for its
    failure to obtain an updated report from Dr. Scott, which they argue, would
    reflect the positive changes C.V. has made in her life since the childs birth.

[37]

There is no doubt that C.V. has worked hard to improve her life since
    the childs birth. In December 2013, she moved out of the appellants home and
    moved in with J.S. She and the appellants were hopeful that if she moved out, the
    difficulties that were foreseen by the Society in relation to the conflicts
    between C.V. and the appellant, J.V., would diminish or disappear.

[38]

There were long-standing issues of conflict between C.V. and J.V. and
    some violence at times, when the police had to be involved. The Society was
    concerned, and reasonably so in our view, that this conflict was not in the
    childs best interests.

[39]

As it is said, history is generally a good predictor of the future. It
    was not utter speculation on the societys part to be concerned about future
    incidents of violence and concern involving C.V. and J.V. C.V.s disability is
    permanent, it is a pervasive developmental disorder. While C.V. has made
    commendable progress, she will always suffer from the disability outlined in
    Dr. Scotts report. Any update will not change her permanent deficits. None of
    this, of course, is C.V.s fault. The brain damage she sustained
in utero
was as the result of her birth mothers use of alcohol during her pregnancy. An
    updated report from Dr. Scott would have changed nothing.

[40]

In any event, in addition to Dr. Scotts report, the appellant, J.V.,
    testified about the difficulties she and the appellant, M.V., had with C.V.
    when she lived with them. Some of these concerns are set out in paragraph 60 of
    the trial judges reasons.

[41]

We do not give effect to this ground of appeal.

F.

The society moveD precipitously to make The child a crown ward

[42]

The Society had little choice but to apprehend the child at birth.
    Despite efforts to have the appellants file a permanent plan for the child,
    they were reluctant to do so. The appellants held out hope that C.V. would be
    able to have custody of the child and that they would assist and supervise her.
    That plan was unrealistic and provided no permanence for the child.

[43]

The Society waited for several months before filing their application
    for a declaration of Crown wardship, no access. They hoped a realistic
    permanent plan that they could approve, would be forthcoming, but none was.

[44]

The Society wanted a permanent home for the child. Their application was
    heard in May and September of 2014, by which time the child was 18 months old.

[45]

By this time, although no formal plan had been presented, the appellants
    indicated their willingness to adopt the child. They said they would continue
    to permit contact between her and her birth parents. This was the only plan
    that was before the trial judge and was the plan that was advocated by C.V. and
    J.S. The appellants suffered no prejudice by the fact they were not parties
    when this matter proceeded before Neill J. They both testified and it was their
    plan that the trial judge considered in her determination of the best interests
    of the child. The record simply does not support the appellants argument that
    the Societys actions were precipitous. Further, the record negates the
    allegation that the Society had decided at the very outset when the child was
    born that she would be made a Crown ward and did not seriously consider the
    appellants desire to parent the child. To the contrary, the evidence before
    Neill J. discloses the efforts the Society workers made both before and after
    the childs birth to encourage the appellants to put forward a permanent plan
    and to seek legal advice. They did obtain legal advice, but a plan was only put
    forward during the trial.

[46]

The trial judge considered the family plan at paragraphs 136 through 139
    of her reasons. She considered all of the evidence and concluded that the
    appellants plan was not workable because it anticipated the continued
    involvement of C.V. with the child  see paragraph 124 of the trial judges
    reasons.

[47]

In our view, the trial judge carefully considered the evidence and her
    findings are all soundly based on the evidence before her. The fresh evidence
    filed by the Society is filed for the purpose only of bringing the court up to
    date in relation to the child. She is doing extremely well in her foster home
    and is a happy and loveable child who is very much attached to her foster
    family.

[48]

There is no doubt that the appellants and C.V. love the child very much.
    The trial judge concluded, however, that their plan was not in the best
    interests of the child. It was in her interest that an order for Crown wardship
    be made and that she remain with her foster parents, where she has been since
    she was ten months of age and who are anxious to adopt her.

[49]

We agree with her conclusion. The appeal is therefore dismissed.

Released: JMF

J. MacFarland J.A.

K. van Rensburg J.A.

Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:  HJLJ Investments Limited v. 2305106 Ontario Inc.,
    2017 ONCA 213

DATE: 20170313

DOCKET: C61274

Hoy A.C.J.O., Gillese and Brown JJ.A.

BETWEEN

HJLJ Investments Limited

Plaintiff (Respondent in Appeal)

and

2305106 Ontario Inc.

Defendant

and

2294105
    Ontario Inc.

Respondent (Appellant in Appeal)

David A. Brooker, for the appellant

Stephen Schwartz, for the respondent

Heard:  March 10, 2017

On appeal from the order of Justice Fitzpatrick of the Superior
    Court of Justice, dated October 13, 2015.

APPEAL BOOK ENDORSEMENT

[1]

The judge below articulated the correct legal principles and made
    findings of fact and mixed fact and law that were fully supported by the
    record.

[2]

We are not persuaded by the appellant that there is any basis to
    interfere with the order below.

[3]

This appeal is dismissed.

[4]

The respondent shall be entitled to costs in the amount of $9,000, which
    may be deducted and paid out of the appellants entitlement to the funds held
    in trust by respondents counsel.


COURT OF APPEAL FOR ONTARIO

CITATION: Hannora (Re), 2017 ONCA 191

DATE: 20170307

DOCKET: C62210

MacFarland, Pardu and Trotter JJ.A.

IN THE MATTER OF:  Mwafak Hannora

AN APPEAL UNDER PART XX.1 OF THE
CODE

Diana Lumba for the appellant

Christine Laviolette for the respondent, Ontario Shores

Brett Cohen for the respondent, Ministry of Attorney
    General

Heard: March 1, 2017

On appeal against the disposition of the Ontario Review
    Board dated, April 29, 2016.

ENDORSEMENT

[1]

At its hearing on April 16, 2016, the Board was required to determine
    whether or not Mr. Hannora remained a significant threat to the safety of the
    public, and if so, what was the necessary and appropriate disposition having
    regard to s. 672.54 of the
Criminal Code

of Canada

(R.S.C., 1985, c. C-46)
.

[2]

The Board determined that Mr. Hannora remained a significant threat to
    the safety of the public and that the necessary and appropriate disposition was
    to continue the current detention order, which required that he be detained in
    the Secure Forensic Unit.

[3]

At the outset of the hearing, counsel for Mr. Hannora conceded that her
    client remained a significant threat to the safety of the public and that a
    detention order was the necessary and appropriate disposition.

[4]

In this court, she submits that the submission to the Board was that Mr.
    Hannora should be placed in a general forensic unit and not in a secure
    forensic unit or continue to be detained in the secure unit with discretion to
    the hospital to transfer the appellant to the general unit, if appropriate.
    This latter remedy was referred to as the hybrid option.

[5]

Both the hospital and the Crown recommended that there be no change to
    Mr. Hannoras disposition.

[6]

The appellant submits that the Board erred in three ways:

(1)

It failed to provide reasons
    for rejecting a hybrid order;

(2)

Misapprehended evidence that
    the appellants risk for coercive sexual contact was low;

(3)

Failed to apply least
    onerous, least restrictive disposition test.

[7]

The appellant was found NCRMD for a sexual assault committed in 2008. He
    has an extensive psychiatric history and suffers from a treatment-resistant Schizoaffective
    Disorder (bipolar type) and Polysubstance Abuse Disorder. The manic symptoms of
    his illness manifest themselves principally through inappropriate sexual
    behaviour. While he showed some improvement within the months leading up to the
    hearing which is the subject of this appeal  there were still a number of
    notable incidents of sexually inappropriate behaviour.

[8]

As to the first ground, counsel for the appellant was asked at the
    outset of the hearing before the Board whether she took issue with either that
    the appellant remained a significant threat to the public or that a detention
    order was appropriate. She told the Board that she did not. The following
    exchange took place:

The chairperson of the Board said:

and you agree that a detention order
          is appropriate, but what youre asking for is placement on a general forensic
          unit, is that right?

Ms. Hennebury:

Yes

The chairperson:

and in terms of privileges and
          conditions, do you have a position on that or is it your most important thing
          to have a general forensic unit?

Ms. Hennebury:

That would be what were mainly
          focusing on today.

The chairperson:

Right. Okay. So that appears to be
          the issue, Ms. Lindo, a secure forensic unit or general forensic unit.

[9]

The remedy of a hybrid order was not discussed at the hearing. Only at
    the very end of her cross examination of Dr. Krishnan  the last question  did
    counsel ask about the possibility with a structured plan in place.when it is
    done slowly over time with a target in mind and a behavioural plan, perhaps even
    with, not necessarily the Board deciding, but the person in charge, is it
    possible that if he were given a plan like that, that may assist him in getting
    to a lower unit?

[10]

The doctor responded that while such a plan might assist the primary
    driving force of his inappropriate behaviours appear to be his symptoms of
    mental illness and so appropriate treatment and optimization of his medication
    regime would be a big factor in helping him move on toward a general forensic
    unit.

[11]

In our view, there was no need on this record to address the possibility
    of a hybrid order; such a disposition was simply not the focus of this hearing.
    Neither was there any air of reality to such a disposition on the evidence
    before the Board.

[12]

The evidence before the Board was clear, that although Mr. Hannora had
    had a good year and there had been some improvement:

it appeared unlikely that Mr. Hannora would be ready for a
    transfer to a general forensic unit. He continues to suffer from acute
    psychotic symptoms, which appear to be driving his sexually inappropriate
    behaviour.

[13]

The current situation was described as follows:

In the community, as well as currently on his level of
    structure, even on the unit, he has engaged in sexually inappropriate
    behaviours, including exposing himself, propositioning others, engaging in
    inappropriate touching, engaging in self-pleasure behaviours while attending
    the pool. So it appears to be occurring, even with his current level of
    structure, although it has reduced, compared to the previous year.

[14]

Mr. Hannoras illness has proven to be particularly resistant to
    antipsychotic medications. There was some improvement in 2013 when he was
    switched to Clozapine and more recently when the dosage of that drug was
    increased. At the time of the hearing before the Board, his team hoped to get
    permission to add Sulpiride to his treatment with the hope:

.that it would decrease his active psychotic symptoms, in
    particular his auditory hallucinations, as well as delusions and a corollary to
    that that it would hopefully decrease his sexual pre-occupation as well.

[15]

Sulpiride is not a drug that was approved for treatment in Canada at
    that time. The hospitals permission was in process and thereafter an
    application to Health Canada would be required for approval to obtain this
    drug.

[16]

Next, the appellant argues that the Board misapprehended evidence before
    it that the appellant was low risk for coercive sexual contact in making the
    disposition that the appellant remain on the secure unit.

[17]

The hospital report at page 36 begins a discussion of the appellants
    result on the Risk for Sexual Violence Protocol (RSVP) and concludes:

Mr. Hannoras risk for sexual re-offending is considered to be
    moderate-high for sexually inappropriate behaviour including exposure and
    inappropriate physical contact and high for sexual comments. Coercive sexual
    contact risk is considered low.

[18]

The Board in its reasons notes:

It is his motivation to move to the General Forensic Unit since
    there are more females. He believes he will be able to have sex with them. This
    places the general population of the hospital and others at a greater risk were
    he to be moved to the General Forensic Unit.

[19]

While his score for coercive sexual contact was considered low, his risk
    was moderate-high for sexually inappropriate behaviour and high for sexual
    comments.

[20]

We do not accept the submission that the Board misapprehended this
    evidence. To the contrary, the Board mainly noted that the appellant believes
    he will be able to have sex with the females on the general unit and there was
    ample support for that statement in the hospital report. He is described at
    page 38 of that report as being preoccupied with sex, with this being his
    reported motivator to move to a minimum unit.

[21]

We are not persuaded the Board misapprehended the evidence before it.
    There was ample evidence, that although the appellant had improved over the
    reporting year, he continued to engage in sexually inappropriate behaviours.

[22]

On a general unit, there would not be the necessary staffing levels to
    appropriately re-direct the appellant when he engaged in such behaviour.

[23]

Lastly, the appellant submits that in failing to consider a hybrid order
    the Board failed to consider the least restrictive, least onerous disposition
    for the appellant.

[24]

We do not agree. Whether or not a hybrid order would be appropriate for
    the appellant was not a live issue before the Board at the hearing which is the
    subject of this appeal and the Board did not err in failing to consider such a
    disposition.

[25]

The appellant seeks to file an affidavit of a legal assistant which
    reports on a conversation one of the appellants lawyers had in February, 2017
    with Dr. Cole, who is the appellants treating psychiatrist.

[26]

Leaving aside the hearsay issues with the affidavit, it states in part:

Subject to any recent developments Dr. Coleman will be
    recommending the applicants transfer to a general unit in the hospital report she
    expects to complete around mid-March.

[27]

This reference would be to the hospital report being prepared for the
    appellants next hearing scheduled for April 26, 2017.

[28]

In point form the affidavit sets out the appellants progress over the
    year since the hearing which is the subject of this appeal.

[29]

It is filed in the event we find the Board made legal errors in the
    disposition of April, 2016 and we are considering making an alternate order.

[30]

We would admit the fresh evidence. We are not however, persuaded the
    Board made any error in its disposition.

[31]

In the event Dr. Coleman does, in her updated report, make the
    recommendation she forecasts in her discussion with counsel, it will of course
    be a relevant consideration for the Board at the Appellants hearing on April
    26, 2017.

[32]

The appeal is dismissed.

J. MacFarland J.A.

G. Pardu J.A.

G.T.
    Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Harvey v. Talon International Inc., 2017 ONCA 267

DATE: 20170331

DOCKET: C61696 & C61697

Blair, Epstein and Huscroft JJ.A.

DOCKET:
    C61696

BETWEEN

Adrian B. Harvey and Harvey Legacy Holdings Ltd.

Applicants (Respondents)

and

Talon International Inc.

Respondent (Appellant)

DOCKET: C61697

AND BETWEEN

Young Sook Yim and Paul
    Chung-Kyu Kim

Applicants (Respondents)

and

Talon International Inc.

Respondent (Appellant)

Symon Zucker and Nancy Tourgis, for the appellant

Michael W. Carlson, for the respondents

Heard: October 31, 2016

On appeal from the judgments of Justice Cory A. Gilmore of
    the Superior Court of Justice, dated January 15, 2016, with reasons reported at
    2016 ONSC 371 and 2016 ONSC 370.

Epstein J.A.:

[1]

This appeal involves the
    interpretation of provisions in two statutes  the
Condominium Act, 1998
,
    S.O. 1998, c. 19 (the Act), and the
Real Property Limitations Act,
R.S.O. 1990, c. L.15 (the
RPLA
).
    This interpretive exercise arises out of two separate applications that were
    heard together. The applications concern the obligation of the appellant, Talon
    International Inc., to return deposits that the respondents  Young Sook Yim
    and Paul Chung-Kyu Kim (collectively Ms. Yim),
[1]
in one application and Adrian B. Harvey and Harvey Legacy Holdings Ltd. (collectively,
    Mr. Harvey), in the other  paid toward the purchase of condominium units in
    Talons development known as Trump Tower.

[2]

Several years after entering into
    their respective agreements of purchase and sale (an APS) with Talon, Ms. Yim
    and Mr. Harvey each provided written notices to Talon, advising of their
    intention to terminate the transaction. Both stated their basis for doing so
    as being, in part, what they viewed as material changes to the revised
    disclosure statement Talon had provided to them. Both requested the return of
    their deposits. The respondents take the position that their communications constituted
    valid notices to rescind their respective APS under s. 74(6) and (7) of the Act.
    Because Talon had not challenged, within the time the Act allows, either Ms.
    Yims or Mr. Harveys right to rescind, the respondents applied to the court
    for an order that Talon return their deposits. Talon defended on the basis that
    the respondents purported notices to rescind did not meet the requirements of
    the Act.

[3]

The application judge allowed both
    applications. She held that the notices sufficiently complied with the
    requirements of s. 74(7) of the Act. Each notice therefore triggered Talons
    obligation to challenge the alleged material change set out within ten days of
    receipt, or to accept the claim for rescission. Because Talon did not challenge
    the respondents claims for rescission, the application judge ordered Talon to
    refund Ms. Yims and Mr. Harveys deposits, with interest.

[4]

In Ms. Yims case, Talon also
    argued that she was seeking to amend her notice of application to claim
    statutory rescission more than two years after the date on which such a claim
    was discovered. Her amendment was therefore statute-barred, pursuant to s. 4 of
    the
Limitation Act
, 2002
, S.O. 2002, c. 24, Schedule B. The application judge disagreed.
    She held that the ten-year limitation period in s. 4 of the
RPLA
governed claims for the refund of deposits advanced
    toward the purchase of condominium units. Ms. Yims claim was, therefore, not out
    of time.

[5]

In this appeal, Talon submits that
    the application judge erred in over-emphasizing the fact that the Act is
    consumer-protection legislation, and consequently provided an overbroad interpretation
    of s. 74(7) of the Act. And, in the case of Ms. Yim, Talon argues that the
    application judge erred in holding that her claim for the return of her deposit
    fell within the provisions of the
RPLA
. It further submits that Ms. Yims application as a whole is
    statute-barred, as it was brought more than two years after discovery of the
    claim.

[6]

I would dismiss both appeals.
I agree with the application judge that it would be
    contrary to the purpose of the Act, as consumer protection legislation, to
    adopt a technical approach in interpreting what a purchaser must do to notify
    the declarant of an intention to rescind under s. 74(7). The section requires
    that notice of rescission be in writing, and that it be delivered to the
    declarant or his or her solicitor. By implication, the notice also must make it
    clear that the purchaser seeks to set aside the APS based on an identified
    material change. In my view, there is no reason to interfere with the
    application judges conclusion that the notices delivered by Ms. Yim and Mr.
    Harvey satisfied these requirements.

[7]

I also agree with the application
    judge that Ms. Yims claim to recover her deposit fits within the definition of
    an action for the recovery of land under the
RPLA
. The applicable
    limitation period is therefore ten years, and Ms. Yims application is not statute-barred.

STATUTORY
    PROVISIONS

[8]

The main issue in these appeals
    involves the interpretation of the provisions in the Act that give a purchaser
    the right to rescind his or her APS. These provisions are found in s. 74 of the
    Act, which provides that within ten days of receipt of a revised disclosure
    statement containing a material change or notice of change that is material, a
    purchaser has the right to rescind the APS. If the declarant takes the position
    that no material change has occurred, the declarant may bring an application to
    the Superior Court under s. 74(8) for a declaration on the question of
    materiality. Sections 74(9) and (10) require that the declarant refund the
    purchasers money with interest within ten days of receipt of the notice of rescission
    if no application has been made to the court on the issue of materiality, or if
    an application is made, within ten days of a determination that the change is
    material. The requirements of the notice of rescission are set out in s. 74(7),
    which provides:

(7) To rescind an agreement of purchase and sale under this
    section, a purchaser or the purchasers solicitor shall give a written notice
    of rescission to the declarant or to the declarants solicitor. 1998, c. 19, s.
    74 (7).

BACKGROUND
    TO THE RESPONDENTS' NOTICES

Ms. Yim v. Talon

[9]

On May 4, 2007, Ms. Yim signed an
    APS to purchase from Talon suite 1702 at Trump Tower for $860,000. Pursuant to
    the terms of the APS, Ms. Yim provided deposits totalling $172,000 to Talon. She
    received the required disclosure from Talon.

[10]

On February 18, 2012, a
    representative for Talon sent a letter to Ms. Yim and to her solicitor advising
    that the Hotel Unit Maintenance Agreement (HUMA) was now available online.

[11]

On February 23, 2012, after
    reviewing the HUMA, Ms. Yim had her solicitor send a letter to Talons solicitor.
    This letter provided as follows:

Further to the letter dated February 9, 2012 received from your
    client, Talon International Inc., regarding the extension of the proposed
    occupancy date from February 14, 2012, for above-noted suite,
my clients
    hereby give notice to terminate the [APS] dated May 4, 2007
and all
    amendments made thereto, effective immediately,
and to request the return of
    the deposits forthwith
to our firm made payable to Lee & Ma LLP in
    trust.

The basis of this notice is premised on paragraph 13 of the
    underlying [APS], which provides that the Vendor's right to extend the closing
    date shall not "exceed twenty-four (24) months" in the aggregate.
    Given that the original occupancy closing date was scheduled to be March 20,
    2009 (paragraph 2(a) in the [APS]), the Vendor's right to extend the closing
    date has expired on March 20, 2011, and is therefore no longer applicable.

In the alternative, the [HUMA], the full copy of which was
    provided at the last-minute, contains terms that are materially different from
    that indicated in the Disclosure, not to mention the substantive differences in
    the projected expenses.

Given that the condominium prices have surged in the past 4-5
    years, I trust that your client is not in any way prejudiced by this notice.
Your
    prompt response and return of deposits is respectfully requested and expected
.
    Thank you. [Emphasis added.]

[12]

On February 24, 2012, Ms. Yim had
    her counsel send a follow-up email to Talons representative, indicating that
    she was exercising her right to rescind the APS. This email specifically referenced
    s. 74 of the Act, as well as the change in the HUMA.

[13]

Talon took no steps in response to
    these communications. Ms. Yim issued her notice of application in this
    proceeding on December 10, 2014. By the time the application was heard, on
    December 14, 2015, Ms. Yim no longer relied upon the expiration of the vendors
    right to extend the closing date, as mentioned in her February 23, 2012 letter.
    She now relied solely on the alternative position advanced in the letter, with
    respect to the HUMAs containing materially different terms from the
    disclosure.

Mr. Harvey v. Talon

[14]

By way of an APS dated March 7,
    2005, Mr. Harvey agreed to purchase a hotel condominium unit from Talon in
    Trump Tower for $727, 000. Mr. Harvey provided deposits to Talon totalling
    $145,400. He received the required disclosure from Talon.

[15]

On February 17, 2012, Talons
    solicitor sent a letter to Mr. Harveys solicitor. This letter made reference
    to the HUMA now being available on the internet.

[16]

On February 24, 2012, Mr. Harveys
    solicitor faxed a note to Talons solicitors, indicating that he had been
    instructed not to proceed with the interim closing. The solicitor noted that he
    was no longer acting for Mr. Harvey in any capacity. That evening, Mr. Harvey
    sent a letter to Talons representative via email. The letter stated as
    follows:

Further to the letter dated February 9, 2012 received from your
    client, Talon International regarding proposed delivery of possession of the
    Hotel Unit on February 24, 2012 for the above mentioned Suite,
I hereby give
    notice to terminate the [APS] dated March 4, 2005
and all amendments
    effective immediately
,
and to request the return of deposits
    forthwith
to the firm of Groll & Groll LLP payable in trust.

The request is being made on the basis of [Mr.] Harvey never
    receiving a fully executed, accepted and initialled [APS].

In the alternative, the [HUMA], the full copy of which was
    provided at the last minute contains terms that are materially different from
    that indicated in the Disclosure and substantially different in the projected
    expenses.

Given the per square foot selling price achieved in todays
    market for this development is far in excess of this Unit, I trust Talon
    International is not in any way prejudiced by this notice.

Your prompt response and return of deposits is respectfully
    requested and expected.
[Emphasis added.]

[17]

Talon took no steps in response. On
    February 13, 2014, Mr. Harvey issued a notice of application in this proceeding.
    By the time of the hearing of the application on December 14, 2015, Mr. Harvey
    no longer relied upon not having received a fully executed, accepted and initialled
    APS, as mentioned in his February 24, 2012 letter. Instead, he relied solely on
    the alternative position advanced in the letter, with respect to the HUMAs
    containing material different terms from those indicated in the disclosure.

THE
    APPLICATION JUDGE'S REASONS

Ms. Yim v. Talon

[18]

As a preliminary matter, Ms. Yim
    moved to amend her notice of application to add a request that the court
    declare that the APS had been rescinded.

[19]

Ms. Yims notice of application,
    issued on December 10, 2014, made no mention of a claim based on rescission
    under the Act. Instead, she sought a declaration that Talon was in breach of
    the APS, a declaration that the APS was terminated and of no force and effect,
    and an order that Talon return the deposit. In the alternative, she sought an
    order granting relief from forfeiture of the deposit, and return of the
    deposit. Before the application judge, Ms. Yim brought a motion to amend her
    notice of application to add a claim for statutory rescission. Among the
    arguments raised by Talon in opposing the amendment was that the claim for
    rescission was statute-barred.
[2]

[20]

The application judge allowed the
    amendment. She held that Ms. Yims claim for rescission fell within s. 4 of the

RPLA
,

which
    provides for a limitation period of ten years. The claim for the return of a
    deposit pursuant to the Act fell within the
RPLA

as an
    action to recover land. In the alternative, the application judge held that
    the proposed amendment to claim statutory rescission was not a new cause of
    action, but an alternative remedy based on the exact same facts set out by Ms.
    Yim in the original notice of application. Additionally, Ms. Yims e-mail sent
    on February 24, 2012 had specifically mentioned rescission under the Act. In
    these circumstances allowing the amendment would cause Talon no prejudice.

[21]

The application judge then turned
    to whether the fact that Ms. Yims failure to use the word rescission in her
    February 23 letter was fatal to her claim for the return of her deposit.

[22]

The application judge started her
    analysis by noting that the Act was consumer protection legislation, and
    therefore should be interpreted liberally. The application judge reasoned, at
    para. 40, that keeping in mind the legislatures goal of protecting purchasers
    of condominiums, the court should not read in a requirement that all notices of
    rescission given under s. 74 of the Act include the precise term rescission.

[23]

The application judge went on to
    hold that all s. 74(7) requires is that the notice of rescission be in writing,
    delivered to the declarant or its solicitor, and that it contain a ground of
    material change upon which rescission is based. Accordingly, the application
    judge concluded, at para. 46, that as long as the notice fulfills the
    statutory requirements and makes clear the purchasers intention to undo or
    unmake the agreement, such as by requesting the return of their deposit, the
    notice should be considered sufficient. There is no requirement that notice be
    worded perfectly, or that it include the word rescission.

[24]

The application judge then
    addressed whether Ms. Yims February 23, 2012 letter complied with this interpretation
    of s. 74 of the Act. She held that given Ms. Yims use of the word terminate
    in the letter, there must be strong evidence indicating that Ms. Yims
    intention in sending the letter was to rescind her APS. The application judge
    found three indications of the required strong evidence of Ms. Yims
    intention to rescind. First, the letter referenced a material change, namely
    the HUMA being materially different and containing substantial differences
    from projected expenses. Secondly, the application judge highlighted Ms. Yims
    request for the return of her deposit, a request that would restore the parties
    to their original positions. Such a remedy was consistent with rescission, and
    not with repudiation of the contract.

[25]

Thirdly, the application judge also
    looked at the e-mail sent by Ms. Yim to Talon on February 24, 2012, the day
    after the initial letter. This email had specifically referenced s. 74 of the
    Act. The application judge concluded that Ms. Yims communications of February
    23 and 24, read together, provided sufficient notice under the Act. Finally, in
    accordance with the requirements of s. 74(7), the letter had been in writing,
    and sent to the proper person. Given that Talon had not challenged Ms. Yims
    right to rescind within ten days of receipt of her notice of rescission, Talon
    was required to return her deposit, with interest.

Mr. Harvey v. Talon

[26]

The first issue the application
    judge addressed was whether the application was deficient with respect to
    relief sought. In his notice of application dated February 13, 2014, Mr. Harvey
    sought a declaration that Talon was in breach of the APS, a declaration that
    the APS was terminated and of no force and effect, and an order that Talon
    return the deposit. In the alternative, he sought an order granting relief from
    forfeiture of the deposit under the APS and the return of his deposit. Talon
    argued that the application was fatally flawed because it did not claim the relief
    of rescission, and therefore the court could not conclude that Mr. Harveys letter
    of February 24, 2012 had been a notice of rescission.

[27]

The application judge held that it
    would defeat the purpose of r. 1 of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194,

if Mr. Harvey were precluded from pursuing relief
    on the basis that the notice of application was not framed exactly in
    accordance with the legislation or the rules. For nearly a year Talon had been
    in possession of Mr. Harveys affidavit, in which he had explicitly taken the
    position that his February 24, 2012 letter rescinded the APS. Further, Mr.
    Harvey had sought return of the deposit in his notice of application  relief
    consistent with the remedy of rescission, and not termination. The application
    judge reasoned that in such circumstances rescission was implicitly pleaded.

[28]

The application judge then
    addressed whether Mr. Harveys February 24, 2012 letter could be a proper
    notice of rescission, despite not using the word rescind or rescission. Relying
    on the same reasoning as in Ms. Yims case, the application judge concluded, at
    para. 43, that as long as the notice fulfills the statutory requirements and
    makes clear the purchasers intention to undo or unmake the agreement, such as
    by requesting the return of their deposit, the notice should be considered
    sufficient.

[29]

Next, the application judge held
    that Mr. Harveys February 24, 2012 letter sufficiently conveyed his intention
    to rescind his APS. As Mr. Harvey had used the word terminate in his letter,
    the application judge looked for and found strong evidence of an intention to
    rescind. First, the letter made specific reference to the fact that the terms
    of the HUMA were materially different from the disclosure and substantially
    different from the projected expenses. Secondly, the request for a return of
    the deposit made it clear that Mr. Harvey sought to restore both parties to their
    original positions, and that he sought rescission rather than repudiation. Finally,
    the letter was in writing and was addressed to the proper person. It therefore
    complied with the requirements under s. 74 of the Act.

[30]

Because Talon had not challenged
    Mr. Harveys right to rescind within ten days as required under s. 74(8) of the
    Act, Mr. Harvey was entitled to the return of his deposit, with interest.

ISSUES

[31]

The issues on these appeals can be
    characterized as follows:

1.

What is the standard of review?

2.

What is the applicable limitation
    period?

3.

Did Ms. Yims and Mr. Harveys
    communication to Talon constitute notices to rescind for the purposes of s. 74
    of the Act?

ANALYSIS

Issue 1  What is the Standard of Review?

[32]

What
    s. 74(7) of the Act means by the words notice of rescission is a question of
    law, and accordingly is reviewed on the correctness standard. Answering this
    question requires the interpretation of the Act, and it is well established
    that questions of statutory interpretation are questions of law (
Canada
    National Railway v. Canada (Attorney General)
, 2014 SCC 40, [2014] 2 S.C.R. 135, at para. 33). As
    stated in
Housen v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8-9,
    when there is a question of law, an appellate court is free to replace the
    opinion of the application judge with its own.

[33]

The
    question of whether the actual notices provided by the respondents met the
    requirements of the Act

is one of mixed fact and law, and reviewed on
    the palpable and overriding error standard. In her reasons, the application
    judge termed this question as one of fact. However, the application judge was
    applying the legal standard under s. 74(7) of the Act to the facts in front of her,
    and thus was dealing with a question of mixed fact and law (
Housen
, at para. 26).

[34]

In
    answering this question, the application judge considered all the evidence the
    law required her to consider. In my view she did not apply an incorrect
    standard or make an error in principle. Accordingly, her determination that the
    notices provided in this case were sufficient is entitled to deference, and
    should not be overturned absent palpable and overriding error (
Housen
, at paras. 26-37).

[35]

Whether
    Yims application was statute-barred is also a question of law, and thus
    reviewed by this court on the correctness standard. Leaving aside her alternative
    analysis, the application judge essentially held that the application as a
    whole was not brought out of time, as the 10-year limitation period in s. 4 of
    the
RPLA

applied, and not the 2-year period from the
Limitation
    Act
, 2002
.

[36]

Here, there
    is no factual component to the dispute about whether the application is statute-barred.
    As analyzed below, I have concluded that the notice provided to Talon by Ms. Yim
    on February 23, 2012 was a notice of rescission under s. 74(7). Accordingly,
    the limitation period began to run ten days later, when Talon failed to return
    the deposit or make an application to Superior Court. Ms. Yims application was
    launched more than two years later. The sole issue is thus whether an
    application for the return of a deposit is covered by the
RPLA
, in which case the
    application was not brought out of time,

or by the
Limitation
    Act
,
2002
, in which case the application was brought out of
    time. Answering this question requires the interpretation of s. 4 of the
RPLA
, in order to determine whether an application for
    return of deposit pursuant to s. 74 of the Act fits within the definition of an
    action for the return of land.

[37]

Accordingly,
    the limitation period issue is a question of law, without a factual component.
    If Ms. Yims application for the return of her deposit fits within the ten-year
    limitation period in s. 4 of the
RPLA
, the same would be true of other
    applications for statutory rescission pursuant to the Act. Thus, the
    application judges determination on this issue is not entitled to deference.

Issue 2: What is the Applicable Limitation Period?

The Parties Submissions

[38]

Talon submits that Ms. Yims
    notice of application was issued nearly three years after her cause of action
    arose. Regardless of whether her communication to Talon was one of termination
    or one of rescission, Ms. Yims application was brought out of time. Talon
    submits that the Act is not one of the statutes listed in Schedule A to the
Limitations
    Act
, 2002
, as retaining specific statutory limitation periods. Therefore,
    s. 4 of the
Limitations Act, 2002
applies and Ms. Yims claim is
    statute-barred for being brought more than two years after the discovery of the
    claim.

[39]

Ms. Yim argues that the
    application judge correctly held that her claim for rescission was one that
    fell within the provisions of the
RPLA
.
The action
    was to recover her deposit  a claim for money laid out in the purchase of
    land, which is part of the definition of land within the
RPLA
. The claim therefore fell within the
RPLA
.
Given the
    ten-year limitation period set out in s. 4 of the
RPLA
, the action was not statute-barred.

Applicable Legal Principles

[40]

This is a matter of statutory
    interpretation.
Statutory
    interpretation is governed by the approach described in Elmer Driedger,
Construction
    of Statutes
, 2nd ed.
    (Toronto: Butterworths, 1983), at p. 87, and adopted by the Supreme Court of
    Canada in
Re Rizzo & Rizzo Shoes Ltd
.
, [1998] 1 S.C.R. 27, at para. 21:

Today there is only one principle or approach, namely, the
    words of an Act are to be read in their entire context and in their grammatical
    and ordinary sense harmoniously with the scheme of the Act, the object of the
    Act, and the intention of Parliament.

Principles Applied

[41]

Section 4 of the
RPLA
provides as follows:

No person shall make an entry or distress, or bring an action
    to recover any land or rent, but within ten years next after the time at which
    the right to make such entry or distress, or to bring such action, first
    accrued to some person through whom the person making or bringing it claims, or
    if the right did not accrue to any person through whom that person claims, then
    within ten years next after the time at which the right to make such entry or
    distress, or to bring such action, first accrued to the person making or
    bringing it.

[42]

When those aspects of s. 4 of the
RPLA
that do not apply to this case are removed, it
    provides that:

No person shall bring an action to recover any land, but within
    ten years after the time at which the right to bring any such action first
    accrued to the person bringing it

[43]

Thus, there are 3 requirements in
    s. 4: an action, to recover and what must be recovered is land.

[44]

An action is defined in s. 1 of
    the
RPLA
to include any civil proceeding.

[45]

Recover is defined in legal
    dictionaries as gaining through a judgment or order. This was the definition
    adopted for the use of recover in s. 4 in
McConnell v. Huxtable
,
    2014 ONCA 86, 118 O.R. (3d) 561, at paras. 16-20, specifically, at para. 17, where
    this Court noted that the English Court of Appeal has held that the expression
    to recover any land in comparable legislation is not limited to obtaining
    possession of the land, nor does it mean to regain something that the plaintiff
    had and lost. Rather, recover means to obtain any land by judgment of the
    Court

[46]

I agree with the application
    judges approach on this point. This is clearly an action to recover.

[47]

The remaining question is whether what
    Ms. Yim seeks to recover  her deposit  is land. The definition of land in
    s. 1 of the
RPLA
is as follows:

land includes messuages and all other hereditaments, whether
    corporeal or incorporeal, chattels and other personal property transmissible to
    heirs, money to be laid out in the purchase of land, and any share of the same
    hereditaments and properties or any of them, any estate of inheritance, or
    estate for any life or lives, or other estate transmissible to heirs, any
    possibility, right or title of entry or action, and any other interest capable
    of being inherited, whether the same estates, possibilities, rights, titles and
    interest or any of them, are in possession, reversion, remainder or
    contingency;

[48]

In my view, the application judge
    was also correct in concluding that an application for the return of the
    deposit was an action for the recovery of land; specifically the recovery of
    money to be laid out in the purchase of land.

[49]

In coming to this conclusion, the
    application judge relied primarily upon
McConnell
. In that case, a former common-law spouse sought a
    constructive trust giving her joint ownership of the home she had once shared
    with her former spouse, with an alternative claim for damages based on unjust
    enrichment. Rosenberg J.A., at para. 38, explained his conclusion that the
RPLA

applied: the respondent is making a claim for recovery of land in the
    sense that she seeks to obtain land by judgment of the court. That the claim
    might provide her with the alternative remedy of a monetary award does not take
    away from the fact that her claim is for a share of the property.

[50]

Here, the application judge reasoned
    as follows at para. 12 [Yim]:

Ms. Yim paid her deposit to secure an interest in land. She
    seeks to recover the money which represents that interest. I find that such an
    interest is more easily identified than a constructive trust interest (as in
McConnell,

supra
), where the court must intervene and declare such an interest to
    exist based on certain legally accepted principles The fact that the remedy is
    a monetary award should not preclude the court from finding that it is a
    recovery of land, as in
McConnell,
supra.

[51]

In support of this conclusion, I
    note that several cases have clarified the relationship between claims for
    damages and claims covered by the
RPLA
. The Supreme Court in
Canson
    Enterprises Ltd. v. Boughton & Co.
, [1991] 3 S.C.R. 534, defined
    damages as a monetary payment for the invasion of a right at common law. In
Toronto
    Standard Condominium Corp. No. 1487 v. Market Lofts Inc.
, 2015 ONSC 1067,
    the plaintiff sought damages based off the defendants failure to meet its
    obligations under a Shared Services Agreement. Perell J., beginning at para.
    49, noted that the fact that real property is incidentally involved in an
    action does not necessarily mean that the action is governed by the
RPLA
.
    Among the cases he cited was
Metropolitan Toronto Condominium Corp. No.
    1067 v. L. Chung Development Co.
, 2012 ONCA 845. In that case, this Court
    made the following comment, at para. 7:

Finally, we do not think that the [
RPLA
] applies to the
    case as framed by the appellant. In its Statement of Claim, the appellant frames
    its action as one for damages flowing from the respondents' negligence, breach
    of contract, conflict of interest, and breach of duty of care, fiduciary duty
    and statutory duty. None of these relates to the categories of actions
    encompassed by the [
RPLA
].

[52]

Thus, had Ms. Yims claim been one
    primarily seeking damages, for example breach of contract, her application would
    be statute-barred. This would be true even if the claim for damages
    incidentally related to real property, specifically the condominium that was
    the subject of her APS. Claims for damages do not fit within the definition of
    land in the
RPLA
.

[53]

However, Ms. Yim is not seeking
    damages. She advances a specific claim under a provision in the Act, a
    provision that only allows for the return of her deposit and interest, not
    damages. The Tax Court defined a deposit in
Casa Blanca Homes Ltd.
    v. R.
, 2013 TCC 338, as a pool of money
    retained until such time as it is applied in partial payment or forfeited. As
    noted by the Alberta Court of Appeal in
Lozcal Holdings Ltd. v. Brassos
    Development Ltd
.
(1980), 111 D.L.R. (3d) 598, a genuine deposit
    ordinarily has nothing to do with damages, except that credit must be given for
    the amount of the deposit in calculating damages.

[54]

This leads me to the consideration
    of money to be laid out in the purchase of land, a phrase on which there is
    scant jurisprudence. However, in my view an action for the return of a deposit
    fits comfortably within its plain meaning. Frankly, I struggle to understand
    what would fit within this phrase if not an action such as this.

[55]

On the basis of the foregoing
    analysis, I conclude that Ms. Yims application is not statute-barred. This is
    also true of the amendment of her initial application to specifically claim
    statutory rescission. As her application is covered by s. 4 of the
RPLA
,
    the applicable limitation period is ten years. The application is an action,
    which is defined as any civil action. She seeks recovery, which has been
    defined as gaining through a judgment or order. And the recovery she seeks is
    of land; namely, her deposit, which is money laid out in the purchase of
    land.

[56]

I would therefore not give effect
    to this ground of appeal.

Issue 3: Did Ms. Yims and Mr. Harveys communications to Talon constitute
    notices to rescind for the purposes of s. 74 of the Act?

The Parties Submissions

[57]

Talon submits that the application
    judge ignored the clear wording of the communications sent by Ms. Yim and Mr.
    Harvey, which both reference termination of the APS. In finding that the Act
    does not prescribe a statutory form of a notice of rescission, the application
    judge failed to recognize that the Act specifically refers only and repeatedly
    to a notice of rescission. There is an important legal distinction between
    termination and rescission. A party cannot assert inconsistent rights and
    having terminated the APS, the respondents cannot claim rescission of an
    agreement they have already terminated. Talon submits that the respondents themselves
    were in breach of the APS by terminating.

[58]

Ms. Yim and Mr. Harvey argue that the
    application judge correctly interpreted the requirements for rescission under
    the Act. An examination of the object of the Act and the intention of the
    legislature supports a liberal interpretation of the phrase notice of
    rescission. As long as the notice is in writing, sent to the right person,
    sets out a ground of material change upon which rescission is based, and makes
    clear the intention of a purchaser to unmake a transaction, it should be
    sufficient. A purchaser should not be required to explicitly use the term
    rescission, if the notice nonetheless makes it sufficiently clear that this
    is what is sought.

A.

What is required for notice of rescission under s. 74 of the Act?

[59]

The next issue to be addressed is
    what is meant by the term written notice of rescission in s. 74(7) of the
    Act.

Applicable Legal Principles

[60]

As in the case of the issue over
    the appropriate limitation period, this issue is one of statutory
    interpretation. The principles set out above apply with equal force to this
    issue.

Principles Applied

[61]

The application judge correctly
    considered this issue through the lens that the Act is consumer protection
    legislation.

[62]

The fact that the Act is consumer
    protection legislation is well established. In
Ward-Price v. Mariners
    Havens Inc
.
(2001), 57
    O.R. (3d) 410 (C.A.), at para. 53, Borins J.A. stated that it is well
    recognized that the Act is consumer protection legislation. More recently, in
Lexington
    on the Green Inc. v. Toronto Standard Condominium Corp. No. 1930
, 2010
    ONCA 751, 102 O.R. (3d) 737, at para. 49, OConnor A.C.J.O. stated that a
    significant purpose of the Act is consumer protection. Rouleau J.A. cited this
    case in
Toronto Standard Condominium Corp. No. 2095 v. West Harbour
    City (I) Residences Corp.
, 2014 ONCA 724,
    when he acknowledged that consumer protection is a significant purpose of the
Condominium
    Act
.

[63]

The

goal
of
consumer

protection

laws
is to
place

consumers,

who

are

average

citizens

engaging
in
business

deals,
on
par

with

companies
or
citizens

who

regularly

engage
in
business.

This
    Court and the Supreme Court have identified guidelines for how consumer
    protection legislation is to be interpreted. The application judge referred to
Seidel
    v. Telus Communications Inc.
, 2011 SCC 15, [2011] 1 S.C.R. 531, for the
    proposition that consumer protection legislation must be interpreted generously
    in favour of the consumer. This proposition comes directly from Binnie J., who
    was considering the British Columbia
Business Practices and Consumer
    Protection Act

(the
BCPCA
). At para. 37, he noted that
    the statutory purpose of the
BCPCA

was all about consumer
    protection. As such, its terms should be interpreted generously in favour of
    consumers. Another relevant Supreme Court case is
Celgane Corp v. Canada (Attorney
    General)
, 2011 SCC 1, [2011] 1 S.C.R. 3. In that case, the Court was considering
    the Federal Courts interpretation of a price-regulating provision in the
Patent
    Act
. Abella J. adopted the majority view of Evans J.A., who had held that
    because the provision could be interpreted in different ways, the one that best
    implemented the consumer protection objectives of such price-regulating
    provisions was the correct interpretation.

[64]

There is similar authority
    emanating from Ontario courts. In
Weller v. Reliance Home Comfort Ltd.
    Partnership
, 2012 ONCA 360, 110 O.R. (3d) 743, at para. 15, Rosenberg J.A.
    noted that the main objective of consumer protection legislation is to
    protect consumers. In
Wilson v. Semon
, 2011 CarswellOnt 15953 (S.C.),
    affd
Wilson v. Semon
, 2012 ONCA
    558, Lederer J. noted that consumer protection legislation, as its name
    implies, is designed to protect consumers.

[65]

The legislative history of s. 74
    of the Act provides further support for the identification of the statutory
    scheme dealing with rescission as consumer protection legislation. In
Abdool
    v. Somerset Place Developments of Georgetown Ltd.
(1992), 10 O.R. (3d) 120
    (C.A.), Robins J.A. discussed s. 52 of the
Condominium Act
, R.S.O. 1990,
    c. C. 26, which was roughly equivalent to s. 74 under the current Act. This
    provision allowed a purchaser to rescind an APS within ten days of receiving a
    material amendment to a disclosure statement, by giving written notice of
    rescission to the declarant or his or her solicitor.

[66]

Robins J.A. noted that when the
Condominium
    Act

was initially enacted in 1967 (S.O. 1967, c. 12), it imposed no
    disclosure requirements on developers, and provided little protection to
    purchasers. The predecessor to s. 52 (and thus the ultimate predecessor of the
    current s. 74) was first enacted as part of the 1974 amendments to the
Condominium
    Act
(S.O. 1974, c. 133, s. 14). This provision introduced the concept of
    full disclosure into the Act. However, consumers apparently continued to
    experience problems. This led to further amendments in 1978 (S.O. 1978, c. 84),
    introducing s. 52, which was later carried over into the 1990 Act. In
    introducing the 1978 Act in the Legislature on June 1, 1978, Larry Grossman,
    the Minister of Consumer and Commercial Relations, described it as a form of
    consumer protection legislation. He stated that the Act would provide
    purchaser protection to consumers by requiring "tighter standards of
    disclosure between sellers and purchasers; allowing time for purchasers to
    become informed of their responsibilities; and clarifying purchasers' rights
    during the interim occupancy period.

[67]

Later in
Abdool
, in
    discussing what was required in the disclosure from the declarant, Robins J.A.
    made the following comments: the vagueness of the requirements and the absence
    of statutory guidelines mandate a broad and flexible approach  not a rigid or
    stringent one  in determining whether a given disclosure statement is
    adequate. In my view, there is no reason why this reasoning about disclosure
    required from the vendor should not also be applied to the purchaser, in
    determining whether a given notice of rescission is adequate.

[68]

Further support for the
    application judges approach to interpreting what is required for notice of
    rescission under s. 74 of the Act can be found in how a right to rescind has
    been interpreted in another statute that has been identified as consumer
    protection legislation  the
Arthur Wishart Act
, S.O. 2000, c. 3 (the
AWA
).

[69]

To start, it is clear that the
AWA
is consumer protection legislation. In
2240802 Ontario Inc. v. Springdale
    Pizza Depot Ltd
.
, 2015 ONCA 236, at paras. 49-50, I adopted the
    comments of the motion judge that The [
AWA
] itself is in many ways
    consumer protection legislation It is remedial legislation, which the Court
    may broadly apply.

[70]

Section 6 of the
AWA
provides franchisees with the right to rescission via a statutory provision not
    dissimilar to that found in the Act. The franchisee can exercise its right to
    rescind by providing the franchisor with a notice of rescission within specified
    timeframes, where the franchisor provides late disclosure, or no disclosure.
    Following reception of such a notice, the franchisor has certain obligations
    towards the franchisee, which must be fulfilled within 60 days.

[71]

Pursuant to s. 6(3), the only
    requirements for the franchisees notice of rescission is the following:
    Notice of rescission shall be in writing and shall be delivered to the
    franchisor, personally, by registered mail, by fax or by any other prescribed
    method, at the franchisors address for service, or to any other person
    designated for that purposes in the franchise agreement. This provision is
    substantially similar to the rescission provision found in s. 74(7) of the Act.

[72]

The issue of what constitutes a
    notice of rescission under s. 6(3) of the
AWA

was considered
    in detail in
779975 Ontario Ltd. v. Mmmuffins Canada Corp.
, 2009
    CarswellOnt 3262 (S.C.), by Strathy J. (as he then was). In that case, the
    franchisee started an action for common law rescission, based on alleged
    pre-contractual misrepresentations made by the franchisor. The statement of
    claim made no mention of the
AWA

or of the statutory rescission
    remedy. More than two years later the franchisee commenced a second action,
    asking for a declaration that service of the statement of claim in the earlier
    action had been a notice of rescission under the
AWA
, thus
    interrupting the limitation period. At para. 45, Strathy J reasoned as follows:

While s. 6 of the
AWA
does not specify the contents of
    the notice of rescission, it seems to me that the notice must at least be
    sufficient to bring home to the franchisor that the franchisee is exercising
    its statutory rights of rescission under the
AWA
, and to inform the
    franchisor that the clock has begun to run on the 60-day period in s. 6(6). In
    light of the very substantial obligations on franchisors to compensate
    franchisees for breach of the disclosure duty, the franchisor is entitled to
    know whether a violation of the
AWA
is being alleged and
    whether the franchisee is claiming remedies under that statute. The franchisor
    is not able to fulfill its statutory obligations unless the notice is at least
    adequate to inform it that the franchisee has rescinded the agreement.
The
    notice does not have to be in specific language, but it must at least make it
    clear that the franchisee is exercising its statutory right to rescind the
    franchise agreement and demanding the compensation to which it is entitled.
[Emphasis added.]

[73]

Ultimately, at paras. 49-50,
    Strathy J. concluded that the statement of claim in the first action was not
    sufficient to constitute notice of rescission to the franchisor within the
    meaning of the
AWA
. The statement of claim made no reference to the
AWA
,
    nor to the franchisors failure to provide a disclosure document or statement
    of material change in time or at all, and there was nothing to indicate to the
    franchisor that the franchisee was claiming the relief set out in s. 6(6). The
    statement of claim did not purport to be an exercise of a statutory right by
    the franchisee  on the contrary, it was simply an action for rescission and
    damages that had nothing to do with the
AWA
.

[74]

The
Mmmuffins
case
    provides support for the application judges conclusion that a notice of
    rescission under the Act does not need to include the word rescind or
    rescission, or reference the relevant section of the Act. As Strathy J. made
    clear, the notice does not have to be in specific language. What is required
    is that the notice indicates that the purchaser is exercising his or her statutory
    authority to rescind or unmake the APS based on a material change. Where
    the notice achieves this, the declarant can decide whether to apply to the
    Superior Court for a determination of the materiality of the change set out.

[75]

I agree with the application
    judges interpretation that a notice of rescission pursuant to s. 74(7) of the
    Act does not require the use of the words rescind or rescission. As
    previously indicated, the Act is well established to be consumer protection
    legislation. It therefore must be interpreted generously in a manner that
    protects consumers. Consumers will not always be represented by counsel.
    Consumers will not always be familiar with words such as rescission and rescind.
    For consumers to be on a level playing field with developers in accessing the
    respective rights afforded them under the Act, they must be given considerable leeway
    in their use of language. As long as the purchasers intention to undo the
    transaction based on a material change is clear, that is sufficient. That is
    all the declarant needs to understand in order to take advantage of the
    statutory rights then available to it.

A.

Did the respondents' correspondence constitute notice of
    rescission?

[76]

Given I agree with the application
    judges view of the requirements of s. 74(7) of the Act, the final question to
    be asked is whether there is any reason to interfere with her conclusion that
    Ms. Yims and Mr. Harveys correspondence met these requirements. For the
    reasons that follow, I see no reason to interfere with the application judges
    determination that the notices provided were sufficient to qualify as notices
    of rescission.

[77]

It is true that both notices utilized
    the word terminate. However, both also included repeated requests that the
    deposit be returned. As the application judge noted (para. 56 of Mr. Harvey, 54
    of Ms. Yim), return of deposit is a remedy consistent with rescission, and not
    with repudiation. As well, both notices referred to the materially different
    terms contained in the HUMA as a basis for undoing the transaction. The HUMA had
    just been disclosed to Ms. Yim and Mr. Harvey a few days before their
    respective notices. They were well within the window to claim rescission based
    on a material change.

[78]

Turning first to Ms. Yim, although
    it is true that she was represented by counsel, I do not see how this factor is
    relevant to a determination of whether the notice was sufficiently clear that
    Ms. Yim wanted to undo the transaction based on a material change. Regardless,
    Ms. Yims counsel wrote a follow-up email to Talon the day after the initial
    notice, making it clear that rescission pursuant to s. 74(7) of the Act was
    being sought. In my view, considering these factors as a whole, it was
    reasonable for the application judge to conclude that the notice provided in
    the case of Ms. Yim was sufficient to meet the requirements of the Act.

[79]

I also agree with the application
    judge (para. 53 of Ms. Yim appeal) that the issue here is not whether the
    change to the HUMA actually was a material change. That issue does not come
    into play. Talon received valid notices of rescission under the Act, based on
    an alleged material change in the HUMA. Talon had ten days to make an
    application to Superior Court for a determination as to whether the alleged
    material change was in fact material. Having failed to do so, it is now too
    late for Talon to argue that the change was not material.

[80]

I would therefore not give effect
    to this argument in the appeal involving Ms. Yim. Her notice was a valid notice
    of rescission under the Act.

[81]

The case of Mr. Harvey warrants a
    similar analysis and the same conclusion.

[82]

Mr. Harveys letter of February 24
    did not contain the word rescind, and did not reference s. 74 of the Act. Nor
    did he provide a follow-up communication the next day, unlike Ms. Yim. However,
    his letter did contain information sufficient to bring home to the declarant
    that s. 74 was being engaged. As noted by the application judge, Mr. Harvey
    both asked for the return of his deposit, and relied on the material differences
    in the HUMA. Given this, I see no error in the application judges conclusion that
    Mr. Harveys letter met the requirements under s. 74 of the Act. It was a valid
    notice of rescission.

CONCLUSION

[83]

I
    have concluded that the application judge committed no errors of law in
    interpreting the Act, nor palpable and overriding errors in applying the law to
    the facts of this case. Accordingly, her conclusion that the notices provided
    were sufficient should not be disturbed on appeal. Given that both applications
    were commenced within the time required, Ms. Yim and Mr. Harvey are both entitled
    to an order requiring Talon to refund their deposits with interest, in
    accordance with s. 74(9) of the Act.

DISPOSITION

[84]

For these reasons, I would dismiss
    both appeals. I would order Talon to pay the cost of each respondent  $15,000 in
    the Yim appeal and $10,000 in the Harvey appeal. These amounts include disbursements
    and applicable taxes.

Released: March 31, 2017
    ("RAB")

"Gloria Epstein J.A."

"I agree. R.A. Blair J.A."

"I agree. Grant Huscroft J.A."

[1]

Ms. Yims husband Mr. Kim was added as an applicant subsequent
    to Ms. Yims commencing her application. For ease of reference, I will refer to
    the applicants jointly as Ms. Yim.

[2]

From the record, it appears that Talon did not
    take the position, which it now advocates on appeal, that the application as a
    whole had been brought out of time in the first place.


COURT OF APPEAL FOR ONTARIO

CITATION: Huang v. Braga, 2017 ONCA 268

DATE: 20170330

DOCKET: M47270 (C62875)

Epstein, Benotto and Trotter JJ.A.

BETWEEN

She He Huang

Applicant/Appellant (Responding Party)

and

Jie Wie Pan

Respondent

and

Ancieto M. Braga

Respondent (Moving Party)

AND BETWEEN

She He Huang and Jie Wie
    Pan

Applicants

and

Aviva Insurance
    Company of Canada
,
Lawrence Harvey Fine Jewell Law
, formerly named
    Jewell, Michael & Obradovich and Gregory Chang

Defendants (
Moving Parties
)

Alan L. Rachlin, for the moving party, Ancieto M. Braga

Antonios T. Antoniou, for the moving party, Lawrence
    Harvey Fine Jewell Law

Mikhail Mira, for the moving party, Aviva Insurance
    Company of Canada

Walter Kim, Public Guardian and Trustee appointed as
    litigation guardian, for the responding party

Heard and released orally: March 17, 2017

On a motion to quash the appeal
    from the judgment of Justice Todd L. Archibald of the Superior Court of Justice
    dated October 11, 2016.

ENDORSEMENT

[1]

The moving parties seek an order quashing this appeal for want of
    jurisdiction.

[2]

These proceedings arise out of a motor vehicle accident involving the
    appellant, Ms. Huang.

[3]

The motion judge heard a motion for an order to have Ms. Huang attend a
    capacity assessment and that the Public Guardian and Trustee be appointed as
    her litigation guardian in the event she were found to be incompetent. The
    assessor found Ms. Huang incapable of representing herself in these
    proceedings. The motion judge therefore declared Ms.Huang mentally incapable
    and appointed the Public Guardian and Trustee as her litigation guardian in the
    actions.

[4]

The moving parties take the position that the order appealed from is
    interlocutory.

[5]

We agree. The order under appeal relates to a procedural issue and is
    not related to the merits of the proceeding. It is interlocutory. Jurisdiction lies
    with the Divisional Court. See:
Must v. Shkuryna
,
2015 ONCA 665.

[6]

The appeal of Justice Archibald's order in relation to all three actions
    is quashed without prejudice to Ms. Huangs right to apply to the Divisional
    Court for leave to appeal.

[7]

Ms. Huang is to pay the costs of the moving party,
Mr. Braga,
in the amount of $1500, inclusive of
    disbursements and HST.

[8]

The approval of this order as to form and content is dispensed with.

"Gloria Epstein J.A."

"M.L. Benotto J.A."

"G.T. Trotter
    J.A."